
    GEO. B. HICKS v. JNO. L. BROWN.
    Jackson,
    September Term, 1875.
    1. CHANCERY JURISDICTION. To subject land held by unregistered title bond or deed by bill to. discover same upon a “nulla bona” return. Registration of memorandum of judgment does not prejudice right.
    Where the execution issued from a judgment of the circuit court is returned “nulla bona,” and the judgment creditor, within less than sixty days from its rendition, causes a mem-oranclum of his judgment to be registered under the provisions of the statute, and thereupon files a bill in chancery ag-ainst the judgment debtors and their vendor alleging that said debtors are the owners of real estate conveyed to- them by unregistered title bond or deed, and! that he does not know which, and praying for a disclosure of the character and nature of the title to said real estate, whether held by title bond or deed, and for an account to ascertain the amount due the vendors, and for a sale of the property, and after paying the vendor’s lien, for the balance to be applied to his judgment and costs, and though it appears from the answer of defendants that the land is held by an unregistered deed not exhibited, and, therefore, by a legal title subject to execution, still complainant is entitled to the relief asked for, and will not be denied his relief after obtaining the discovery sought. Registration of memorandum of his judgment cannot prejudice complainant. [See Code, secs. 6092-6096, and notes.]
    Cited: Code (1858 and 1871), see. 2984; Code (M. & V.), sec. 3698; Shannon’s Code, sec. 4712.
    2. SAME. Same. Land not sold subject to vendor’s lien, but lien ascertained and sale to satisfy it, and judgment.
    Where a judgment creditor with an execution returned nulla bona seeks to have land held by the debtor upon which there is a vendor’s lien sold to satisfy such lien, and the balance applied to his debt, and the court orders the land sold subject- to the lien, upon appeal the supreme court will order a reference to ascertain the amount of the lien, and also the judgment, and will decree the property to be sold to satisfy the lien, and the balance to be applied to- the said judgment.
    3. CHANCERY PRACTICE. Exceptions to clerk’s report for failing- to. refer to. evidence overruled, when.
    An exception to the clerk’s report upon the g-round that it does not refer to the evidence sustaining same, will be overruled where the amount is ascertained by a simple calculation oí interest from allegations made in the hill and admissions in the answer.
    4. SAME. Exceptions to clerk’s report in accordance with credits indorsed on notes overruled when no evidence to support exceptions.
    An exception to the clerk’s report upon the ground that the notes a.re not due will be overruled where the notes themselves filed by the holders show that they are due. Exceptions that the notes are not due because it is stipulated upon the back of them that the payment of the notes might be postponed from six months to six months, not exceeding ten years, upon the payment of the interest accrued every six months, will be overruled where credits of interest were not indorsed on the note in accordance with such stipulated conditions, and there is no other evidence of such payments. Exception' that payments credited on notes were not applied in accordance with contract will be overruled where there is no evidence showing the truth of facts alleged in the exception.
   Deaderick, J.,

delivered tbe. opinion of tbe court.:

Tbe bill in this case was filed in tbe chancery court at Jackson on tbe 15th of July, 1870.

It alleges that on the 19th of May, 1870, complainant recovered in tbe circuit court of Madison coimty, a judgment against M. Bullock, John L. Brown, and M. Brown, for $4,335.23, and $18.80, costs of suit.

Upon this judgment an execution was issued and returned nulla bona. Upon -tbis return being made, and within less than sixty days after the rendition of the judgment, complainant registered a memorandum of his judgment, under sec. 2984 of the Code.

Thereupon he filed his bill, alleging that either John L. Brown or M. If. Brown, or both_of them, owned a lot of land in the town of Jackson, describing it, which had been conveyed to them either by bond or deed, and that there was due to the vendor nearly two thousand dollars of the purchase money, for which the vendor retained a lien; that the alleged vendor, M. 0. Butler, had intermarried with Thos. Henderson, and they were made defendants to the bill together with the defendants to the suit at law. The bill prays for an account to ascertain the amount due the vendors, and for the disclosure of the character of the title to the said lot, whether the same is held by title bond or deed, and that said lot be sold on a credit- of seven months in bar of tbe equity of redemption, and that after paying tbe vendor’s lien, tbe balance may be applied to the satisfaction of complainant’s debt and cost, and also for general relief.

John L. and M. F. Brown admit the rendition of the judgment at law against them. M. B. Brown disclaims any title to the lot, and John L. Brown claims that the lot was conveyed to him by deed, in which a lien for purchase money was retained, but said deed was never registered, nor is it exhibited with defendant’s answer.

He insists, however, that inasmuch as complainant had registered a memorandum of his judgment, and has alleged that defendant’s title is equitable-, and as, in fact, his title is a legal one held by unregistered deed, that the complainant cannot have the relief he seeks, and that his bill ^should be dismissed. We do not think so-. It is manifest from the allegations of the bill that complainant sought to have satisfaction of his debt out of the lot after the satisfaction of the vendor’s lien, but was not advised whether the contract of sale was evidenced by title bond or by deed. His having registered a memorandum of his judgment, cannot prejudice him, and defendants having answered and discovered the nature of their title, and admitted the indebtedness, as alleged, although the title might be a legal one, and without any incumbrance, the complainant would be entitled to the relief prayed.

The allegations in the bill and admissions in the answer, however, show that there is a subsisting lien upon the lot to secure unpaid purchase money. This is an incumbrance upon the land, the amount of which should be ascertained and provided for out of the proceeds of the sale. And it is proper to have this matter ascertained by a reference to the master, so as to- have the rights of all parties adjusted in this suit.

The chancellor ordered a sale of the lot, subject to- the vendor’s lien, for the satisfaction of complainant’s claim, from which decree John L. Brown appealed.

There was no- error in the chancellor’s decree declaring the lot of land, subject to the vendor’s lien, liable to complainant’s claim. Before a sale is ordered, however, the clerk of this court will ascertain and report to the present term, if practicable, the amount due for unpaid purchase, and whether the whole amount of the purchase is due, if not, at what time it will fall due, and he will also calculate the interest upon the judgment at law, recovered by complainant. from the time of its rendition to the time of filing his report, showing the amount due complainant.

The costs of this court and of the court below will be paid out of proceeds of sale of land.

Opinion on exceptions to report.

Deaderick, J.,

delivered the opinion of the court:

The defendant, John L. Brown, has excepted to the master’s report in the following particulars:

1. That the amount due the complainant is erroneously reported at $5,740.50, and $18.80 costs, because there is no legal or sufficient evidence referred to -in the report to sustain the report.

The report does not, as it should do, refer to' the evidence upon which it is made, but the bill charges that at May term, 1870, of the circuit court of Madison county, complainant obtained his judgment for $4,335.23, and $18.80 costs, against defendant Brown et al. And the answer of John L. Brown admits that at said circuit court, and on the 19th of May, 1870, complainant did obtain the judgment for $4,335.23, and $18.80 cost of suit.

The clerk, in his report, takes the admissions of the answer as to the exact day of the rendition of the judgment, and calculates the interest from that date.

Tt is manifest, therefore, that there is no foundation for this exception, and it will be overruled.

2. The second exception is, in effect, that the purchase money was not due from him, said Brown.

The notes themselves, produced by the holders thereof, show that it was due at the time complainant filed his bill. This exception will be overruled.

The third and fourth exceptions are that the notes produced do not prove that the interest thereon had not been paid as per contract, and that upon payment of the interest regularly every six months, the notes, were not to be clue until 1866.

Upon one note dated June 1, 1866, the payee indorsed that the payment of the note might be postponed “from six months to six months, not exceeding ten years from date, provided that on or before the 1st day of December, 1866, and every six months thereafter, the interest is paid.” Upon this note the interest to December 1, 1866, was not paid until February, 1867.

A similar privilege by the payee to the payor is given upon another note upon condition that the interest is paid 11th of February, 1867, and semiannually thereafter for ten years.

No interest seems to have been paid upon this note at any time, and as the privileges were extended upon conditions which the defendant does not show he has performed, these exceptions are not well taken, and are overruled.

The fifth and last exception is that the credits on the two notes last named were not applied in accordance with the terms of the contract. If the fact be as alleged, the defendant should have shown it by evidence.

There being no evidence to sustain this exception the credits given are prima facie correct in date and amount, and this exception wfill be also overruled.  