People's Bank v. West

• Decision Date: 02 June 1890
• Citation: 7 So. 513,67 Miss. 729
• Court: Mississippi Supreme Court
• Parties: PEOPLES BANK v. I. S. WEST, JR

7 So. 513

67 Miss. 729

PEOPLES BANK v. I. S. WEST, JR

Supreme Court of Mississippi

June 2, 1890

FROM the chancery court of Harrison county, HON. SYLVANUS EVANS Chancellor.

The opinion states the case.

Decree reversed.

E Howard McCaleb and E. J. Bowers, for the Peoples Bank appellant,

Filed an elaborate brief, making, as to the questions decided by the court, the following points:--

1. The levy in the attachment suit of West was void and created no lien. Sherman v. Bank, 66 Miss. 648.

2. The creditors bill of the Peoples Bank was filed on July 1, 1884 after the attempted levy, but before the judgment in the attachment suit. Complainant acquired a lien from the date of the filing of the bill. Code 1880, § 1845. At that time West had no lien, and consequently the lien acquired by the filing of the creditors bill is superior.

3. The court below held that as there was no proof that Carriere ever owned the property in controversy, neither West nor the bank established a perfect title. This was error. Both parties claimed from Carriere as a common source of title. Gaines v. New Orleans, 6 Wall. 643.

4. The court below held that appellant had a full and complete remedy at law by ejectment, and that there were no facts which would give the chancery court jurisdiction. In this we maintain that the learned chancellor was clearly incorrect. The appellant was not a party to the attachment suit, and was therefore not bound by the judgment therein. It was competent to resort to a court of equity to set aside the lien claimed under this judgment. Smith v. Gettinger, 3 Ga. 140; Whipple v. Cass, 8 Iowa 126; Hale v. Chandler, 3 Mich. 531; Reed v. Ennis, 4 Abb. Prac. R. 393.

The bank proceeded in the chancery court to set aside the fraudulent conveyance of Carriere, and that court had jurisdiction to give full relief, including the cancellation of any adverse title. This jurisdiction may be enforced either by a supplemental bill, or by an original or cross bill as against any one asserting such adverse rights. The jurisdiction of the chancery court is never divested until the fruits of its decrees are obtained by the successful party. Riggs v. Johnson County, 6 Wall. 166.

Nugent & Mc Willie and Percy Roberts, for appellee, West.

1. The main question is as to the validity of the West attachment, and whether it is so far invalid as to make it obnoxious on a collateral attack. Section 2476 of the code, provides that the attachment law shall be construed in the most liberal manner. Assuming that the land in controversy was occupied, § 2424 of the code required that the officer having the writ should go to the defendant, or to the person or house of the person in possession, and declare that he attached the land. It is better that the return should be in the language of the statute itself, because then it would show that the officer conformed to the law; but this is the only reason, according to a recent decision of this court. Suppose the return was false in fact, would the lien be fixed beyond control as to an intervening creditor? Such creditor cannot attack the return collaterally. Looking to the return in question, we find that the officer delivered a copy of the writ to the defendant, and therefore he went to the person in possession. Furthermore, he "levied" the writ upon the land. This imports that he did something in making the levy, and the fair intendment is that, contemporaneously with delivering a copy of the writ to the debtor, he made the declaration required by the statute; otherwise the construction is not liberal.

In the case of Sherman v. Bank, 66 Miss. 648, it was alleged and proved that the land was occupied. Besides, the return in that case differed from that in Saunders v. Ins. Co., 43 Miss. 583, where the return was upheld. In that case the return employed the word levy instead of the word attached, implying with it a recital of notice to the person in possession. In the case at bar, Carriere had conveyed the land to his wife and children, but he was in possession. Certainly the officer saw him in delivering a copy. It is not affirmatively shown that he was at home when the officer went to him, but that was not necessary. The only possible objection to the return is that it does not show that the officer declared the levy in Carriere's presence. Such declaration was not shown in the case of Saunders v. Ins. Co., but it only appeared that the tenant in possession was notified of the levy. In this case Carriere was served with a copy of the attachment which was to be levied on his property. He owned none other than that in controversy, and he defended the suit supposing the levy was a valid one. Was not the delivery of the copy under these facts virtual notice of whatever might appear in the return upon the writ? The defendant was notified of the attachment at the suit of a particular plaintiff, and there was only this property to be attached. The officer could have gone to the house in the absence of the defendant and declared a levy, and the defendant would not have had as much actual notice as is shown by this return, and yet such a levy would have been unquestionably within the requirements of the statute. It would seem that where the officer goes to the defendant and serves him with a copy of the writ that it is unnecessary to show affirmatively in the return that he then declared a levy, if his return shows in addition to delivering the copy, that he "levied" on the land.

2. The law as to the right of a third person to assail in a separate suit in another court the validity of a judgment rendered by a court of general jurisdiction, on the ground that there was a defect in the levy of an attachment, or rather in the return of the officer, is correctly laid down in the case of Cox v. White, 2 La. 422. There it was held that the judgment must be considered as res judicata between the parties, and as having settled all the disputes in relation to the property attached. All defects in the commencement and prosecution of the suit must be held cured by the judgment as to all parties who had no vested rights in the property attached at the time of rendering the judgment. This general doctrine has more than once been upheld by this court as applied to the service of process. The court has held that if service was made, no matter how defective, and no objection arising on such defect was urged by the defendant, it would give jurisdiction to the court, and the final judgment rendered thereon would be proof against the attack of third persons. The same doctrine must obtain in respect to defects in the levy of an attachment. Under § 1493 of the code, the circuit court in which this judgment was rendered is a court of general jurisdiction, and the chancery court has no power to interfere with its judgment in a case like this.

The correctness of the appellant's contention depends entirely on the nature and character of the matter set up in the cross-bill as to the sufficiency of the levy, and we submit that this is a matter as to which the chancery court is without jurisdiction.

OPINION

COOPER, J.

The controversy in this cause is between I. S. West, Jr., and the Peoples Bank of New Orleans, each claiming to be the owner of the land described in the pleadings, by title derived under judicial proceedings against the former owner, Charles J Carriere. On the 25th of June, 1884, West sued out a writ of attachment returnable to the circuit court of Harrison county against Carriere, as a nonresident. To this writ the sheriff of Harrison county made return, as follows: "Executed within process this 26th day of June, 1884, by levying upon the following described real estate situated in Harrison county, Mississippi, as that of C. J. Carriere, deft., to wit, [describing land by metes and bounds]. Further executed by handing to C. J. Carriere, deft., in person, a true copy of within process." This writ was returnable to the November term of the circuit court, and at that time the defendant appeared and pleaded in abatement to the attachment. At a subsequent term of the court, the defendant withdrew all defense, and judgment by consent was rendered in favor of the plaintiff, and the land attached directed to be sold. Under this judgment a writ of venditioni exponas was issued, and the property described in the writ was sold, and the plaintiff in attachment, West, became the purchaser.

On the 1st of July, 1884 [after the levy of the attachment, and before the return-day of the writ], the Peoples Bank exhibited its bill in the chancery court of Harrison county against Charles J. Carriere and Mamie Adele Carriere, his wife, and against the infant children of the said Charles J. Carriere, in which it was averred that on the 30th day of May the said Charles J. Carriere was indebted to said bank in a large sum; that he was then insolvent, and, for the purpose of defrauding his creditors, on that day made a voluntary conveyance of the property here in controversy to his said wife and infant children. The property was described in said bill, and, under §§ 1843, 1845, code 1880, a lien was fixed by the filing of the bill against the property proceeded against. This proceeding resulted in a final decree in favor of the bank, cancelling the conveyance from Carriere to his wife and children, and subjecting the land to sale for the payment of the complainant's debt. Under this decree the land was sold by a commissioner of the chancery court, and at this sale the Peoples Bank became the purchaser.

It will be seen that both parties to the present litigation claim to have secured the title of Charles J. Carriere, West claiming title under the attachment suit, and the bank under the chancery proceeding. The regularity and...