Simpson v. Smith Sons' Gin & Machine Co

• Decision Date: 13 December 1897
• Citation: 22 So. 805,75 Miss. 505
• Parties: SAMUEL J. SIMPSON v. SMITH SONS' GIN & MACHINE CO
• Court: Mississippi Supreme Court

22 So. 805

75 Miss. 505

SAMUEL J. SIMPSON v. SMITH SONS' GIN & MACHINE CO

Supreme Court of Mississippi

December 13, 1897

December 1897

FROM the chancery court of Bolivar county HON. W. R. TRIGG Chancellor.

In September, 1891, the Smith Sons' Gin & Machine Company the appellee, sold a steam cotton gin, press, etc., to one Dewberry upon credit, reserving title to the property as security. In March, 1892, the seller recovered a judgment against Dewberry at law upon the purchase money debt, which judgment was duly enrolled.

In September, 1892, Mrs. Deason, a creditor of Dewberry and his wife, filed the bill in this cause against her debtors, and obtained the appointment of a receiver. The receiver took possession of the property sold by appellee to Dewberry. The appellee then applied to the chancery court to be made a party to the suit, and the court, by consent of all parties granted the application. The appellant, Simpson, on appellee's application and the consent of the other parties thereto, was also made a party to the cause during its progress. The appellee then filed its bill, or cross bill, making Simpson a defendant thereto. The grounds on which relief was sought against Simpson by the appellee are stated in the opinion of the court. Simpson failed to answer the appellee's pleading, and a pro confesso thereto was taken against him. The final decree against appellant Simpson, was a personal one, in appellee's favor, for the balance due upon the judgment against Dewberry, after crediting it with the then value of the property sold by appellee, which property, in the progress of the suit, had been decreed to be restored to appellee by the receiver. The amount of the decree was within the value of the property which Simpson had acquired from Dewberry after the enrollment of the judgment, but of which appellant had made disposition. From the personal decree against him Simpson appealed.

Reversed and dismissed.

J. W. Curter, for appellant.

The sole allegation upon which relief was sought by appellee was that appellee held a judgment against a third person, which had been enrolled, and, thereby, became a general statutory judgment lien upon certain property, which, it is alleged, appellant had acquired by purchase, and had subsequently disposed of. It is submitted that this allegation is not sufficient to support the decree. A judgment creditor had no right of action against a purchaser of property, covered by the lien of his judgment, for the conversion of such property. Such creditor had no right to the property. The lien is neither a jus in re nor a jus ad rem. It covers the mere right of satisfaction out of any property of the defendant, no matter when acquired, and, by virtue of the judgment, the creditor has the right to have the property taken in execution. Anyone purchasing property subject to such lien, must hold it subject to the right of the purchaser to subject it to his judgment, but if the property is never subjected to the lien of the judgment, by being actually taken in execution, the creditor's claim is nothing more than a debt of record, and if the property covered thereby is consumed, dissipated or destroyed, the creditor cannot maintain an action against the person who may have acquired and consumed or disposed of such property. Dozier v. Lewis, 27 Miss. 679; Westmoreland v. Wooten, 51 Miss. 825; Cloud v. State, 53 Miss. 662.

The fact that a decree pro confesso was rendered, does not at all alter the status of the case. This court has held that although a decree pro confesso might be entered, yet if, on final hearing upon the record presented to the court, it is manifest that complainant is not entitled to relief,...