Seay v. Wofford , 141 Miss. 888 ( 1926 )

On November 1, 1922, Jeff Busby instituted an attachment in the chancery court of the First district of Chickasaw county against the appellee, who was a resident of the state of Arkansas, seeking to collect an indebtedness due by the appellee to the said Jeff Busby, and the writ was levied on certain land owned by the appellee and located in Chickasaw county. The appellee failed to appear and defend the suit, and at the first term of court thereafter a decree pro confesso and a final decree were entered sustaining the attachment and condemning the land to be sold to satisfy the indebtedness, and appointing a special commissioner to make the sale. Thereafter the commissioner so appointed, without the complainant having given the bond or security required by section 541, Code of 1906 (section 298, Hemingway's Code), advertised and sold the land to satisfy the decree. At this sale Jeff Busby became the purchaser of the land, and the sale was afterwards reported to the court, and confirmed. Thereafter Busby sold the land to the appellant herein.

On May 7, 1924, the appellee filed this suit, seeking to cancel the deeds from the special commissioner to Jeff Busby, and from Busby to appellant, on the ground that, by reason of the failure of the complainant to give the security required by the above-mentioned statute, the said commissioner's sale and deed executed in pursuance thereof were void. The court below sustained the prayer of the bill, and entered a decree directing a cancellation of these deeds as a cloud on appellee's title, and ordered an accounting for rent and taxes, and hence this appeal.

Section 541, Code of 1906 (section 298, Hemingway's Code), provides:

That in attachments in chancery against nonresidents, "if a decree be rendered in such case without the appearance of the absent debtor, the court, before any proceedings to satisfy said decree, shall require the complainant to give security for abiding such further orders as may be made, for restoring of the estate or effects to the absent defendant, on his appearing and answering the bill within two years," etc.

In the case of Carter v. Brandy, 71 Miss. 240, 15 So. 790, the court had under consideration this statute, and it was there held that, where, in an attachment in chancery, a decree is rendered against a nonresident defendant on publication only, without appearance, the refunding bond required by this section must be given after such decree, and before any proceedings to enforce or satisfy such decree, and that any proceedings to enforce the decree, which are taken before the giving of this security, are void. This construction of this statute is manifestly correct, and is decisive of the case at bar.

The decree of the court below will therefore be affirmed.

Affirmed.