Rebecca C. Winston et al. vs. Otley and Humphries, 25 Miss. 451

Mr. Justice Yerger delivered the opinion of the court. This case is brought by writ of error from the district chancery court at Columbus. The bill, which was filed by the plaintiffs in error, was demurred to, and the demurrer was sustained. The substantial allegations to which we deem it necessary to advert, are these : “ In October, 1847, T. P. Miller & Co. obtained a judgment in the circuit court of Lowndes county against the complainant, Thomas B. Winston and others, which judgment they after-wards transferred, to the defendants, Otley and Humphries.

After various proceedings, Otley and Humphries caused an execution to be issued upon this judgment and levied upon a tract of land, which belonged to Thomas B. Winston when the judgment was rendered. This land was sold by their direction and was purchased by them for the sum of fifty dollars, which was entered as a credit upon the execution. This sale was made without advertisement of time and place, and the land, it is alleged, was worth at least fifteen hundred dollars in cash.

The sale was also made during the pendency of a writ of error sued out to the original judgment, which original judgment by the high court was afterwards reversed, and the cause remanded. The bill also states, that some time after the rendition of the original judgment, Thomas B. Winston sold the tract of land to his brother William B. Winston, making him a deed thereto with covenants to' warrant and defend the title to the same; that William B.

Winston died, making his last will and testament, by which he devised the land to the complainant Rebecca C. who was the owner of it, when it was sold by virtue of the execution. The bill prays, that the sale by virtue of the execution to Otley and Humphreys be set aside, and the deed to them cancelled. We do not think the demurrer to the bill should have been sustained. In the case of The City of Natchez v.

Minor, 10 S. & M. 246, it was decided, that a total omission to give the notice required by law or giving it in a mode entirely different from that prescribed by law, will not affect the title of a bond fide purchaser of land under the execution who Jrad no knowledge of the misconduct of the sheriff. Th'is doctrine cannot benefit these defendants, because being-the owners of the judgment and execirtion by virtue o-f which the sale was made, they cannot defend as bond fide purchasers, and must be held to be charged and affected with notice of any, irregularity committed by the sheriff in executing the process.

Again, they became the purchasers for $50 of a tract of land admitted to have been worth at least $1,500.

It is not necessary for us to decide whether a sale under execution would be set aside for such gross inadequacy of price, independent of other circumstances; but it is certainly clear, that a court of equity would be very inefficient in protecting the rights of parties if' there was any hesitancy in vacating a sale, where there existed such gross inadequacy of price, coupled with the additional facts, that there was no notice given of the time and place of sale, and that the owners of the execution were the purchasers of the property.

But it is said, the bill is multifarious, because brought in the name of Thomas B. Winston, the defendant in the execution, and Rebecca C. Winston, who is the owner of the property-sold by virtue of a title derived from Thomas B. We do not think this objection tenable. When Thomas B. Winston sold the land to William B. Winston, the judgment in favor of Miller & Co. was a lien upon it, and by the warranty contained in his deed, he was bound to defend the title of his vendee. As the sale under this execution, if permitted to stand, would deprive Mrs.

Winston of'the land, and compel her to resort for redress to her covenants against Thomas B. Winston, each have a joint interest in having the sale set aside, she to protect her right and title to the land, and he, in order that he may keep his covenant to defend the title. We have not thought it necessary to notice all the causes of demurrer assigned by the defendants. In our opinion, the facts stated in the bill entitle the complainants to relief.

The decree of the vice-chancellor must, therefore, be reversed, the demurrer overruled, and the cause remanded, with leave to the defendants to answer within sixty days after a certificate of the judgment in this court shall be filed in the court below.