
    John Montgomery vs. John W. P. McGimpsey et al.
    Where a judgment of the circuit court is affirmed by the judgment of the high court of errors and appeals, the lien of the former is not destroyed.
    A purchaser, under an execution issued by the clerk of the circuit court, against the principal and sureties on the ■writ of error bond, upon the certificate of the clerk of the high court of errors and appeals, of an affirmance by that court, of a judgment of the circuit court, of land mortgaged by the judgment debtor between the time of the rendition of the judgment in the circuit court and its affirmance by the high court of errors and appeals, acquires a superior title, and will be preferred to the mortgagee.
    Where a judgment of the circuit court is affirmed by the judgment of the high court of errors and appeals, with damages, and land, which was mortgaged by the judgment debtor after the rendition of the judgment in the circuit court, but before the judgment of affirmance by the high court of errors and appeals, was sold under an execution issued by the clerk of the circuit court on the certificate of the clerk of the high court of errors and appeals, of the affirmance of the judgment, for enough to satisfy the judgment, damages, and costs; held, that the purchaser acquired a title unincumbered by the mortgagee, and the most that the mortgagee could claim would be the amount of the damages as a sum not covered by the older judgment lien, and that must be claimed of the judgment creditor, and not of the purchaser.
    On appeal from the superior court of chancery; Hon. Robert H. Buckner, chancellor.
    John Montgomery filed a bill in the superior court of chancery, alleging that he was the surety of John W. P. McGimp-sey on various notes for large sums of money in favor of Briggs, Lacoste & Co. and others; and to indemnify and save him harmless against loss, McGimpsey, on the 22d day of November, 1839, executed to him a mortgage on fifteen hundred and sixty acres of land, lying in the county of Madison, in the probate court of which county the mortgage was duly recorded-on the 16th day of December, 1839; that the notes upon which he was surety, were due and unpaid, and suits were pending against him thereon ; that James Dick, Richard S. Booker, William I. McLean, and Henry R. W. Hill, copartners under the name and style of N. & J. Dick & Co., were in the possession of the ^mortgaged land, claiming it under some title or pretence of title derived through McGimpsey, or in some other way, and their title, if they had any, was alleged to be junior and inferior to that of the complainant. McGimpsey, the various creditors, and W. &■ J. Dick & Co. were made defendants ; and the prayer was, that the title of N. & J. Dick & Co. be can-celled, and declared inoperative; that the mortgage be foreclosed, and the land sold for the payment of the debts. The bill was taken for confessed against all of the defendants except W. & J. Dick & Co., who answered, denying that they had any knowledge of the allegations of the bill concerning the notes and mortgage, but admitting they were in possession of the land, and insisting that they were the lawful owners of it; that they derived title to it in the following manner, to wit: That on the 1st day of May, 1838, James H. Scott recovered a judgment in the circuit court of Madison county, against Vincent Moore and John W. P. McGimpsey, for four thousand dollars debt ánd one hundred and three dollars and eleven cents damages, upon which an execution was issued on the 17th day of August, 1838, when the defendants filed a bill in the superior court of chancery, enjoining all further proceedings under the judgment and execution at law; that at the January term, 1839, the chancellor dissolved the injunction, and an alias execution was issued on the judgment at law, which execution was superseded by the defendant McGimpsey, and a writ of error prosecuted by him to the high court of errors and appeals, which court, at the January term, 1840, affirmed the judgment of the circuit court of Madison county, with damages; that on the 14th day of May, 1840, a pluries execution was issued, which was levied on the land described in the bill, and upon the sale thereof by the sheriff of Madison county, they, respondents, became the purchasers. A transcript of the record of the circuit court of Madison county was made an exhibit to the answer, and sustained the various allegations contained in the answer. The certificate of the clerk of the high court of errors and appeals of the affirmance of the judgment of the circuit court of Madison county, was set out in the record, and was in the words and figures following, to wit:
    “ The state of Mississippi, high court of errors and appeals; January term, A. D. 1840. John W. P. McGimpsey, plaintiff in error, vs. James H. Scott, defendant in error.
    “ This cause having been duly considered by the court, it is ordered and adjudged, that the judgment of the circuit court of Madison county against the plaintiff in error, for the sum of ($4103.11,) four thousand one hundred and three dollars and eleven cents, be, and the same is hereby affirmed; whereupon it is considered by the court, that the defendant in error do have and recover of said plaintiff in error, principal, and M. D. Shelby, and John B. Moon, securities in the writ of error bond, the sum of ($4103.11) four thousand one hundred and three dollars and eleven cents, being the amount of the judgment above recited, with legal interest thereon, from the date of the rendition of said judgment till paid ; also the further sum of ($410.31,) four hundred and ten dollars and thirty-one cents, being ten per cent, damages on the amount of said judgment; together with all costs that may have have accrued thereon in the court below. It is further considered by the court, that the defendant in error recover of said plaintiff in error and the said securities in the writ of error bond, his costs by him about his suit in this behalf expended, to be taxed by the clerk of this court.
    “I, Robert A. Patrick, clerk of the court aforesaid, do hereby certify the above to be a true copy from the original judgment, as entered upon the minutes of said court. Given under my hand and seal of said court, this 7th day of May, A. D. 1840.
    “ R. A. Patiuck, Clerk.
    “ By F. G. Hopkins, D. C.
    ‘ “ To the clerk of the circuit court of Madison county.”
    The pluries execution issued by the clerk of the circuit court of Madison county was in these words, to wit:
    
      “The state of Mississippi to the sheriff of Madison county, greeting:— We command you that, of the goods and chattels, lands and tenements of John W. P. McGimpsey, M. D. Shelby, and John B. Moon, late of your county, you cause to be made the sum of four thousand one hundred and three dollars and eleven cents, which James H. Scott lately, on an affirmation of a judgment of the circuit court of Madison county, by the high court of errors and appeals of the state aforesaid, recovered against the said John W. P. McGimpsey as principal, and M. D. Shelby and John B. Moon as securities in the writ of error bond, with interest at the rate of eight per cent, per annum on said sum from the first day of May, 183S, until paid ; together with the sum of four hundred and ten dollars and thirty-one cents, it being ten per cent, damages on the aforesaid sum, which was adjudged by said high court of errors and appeals to the said James H. Scott against the said John W. P. Me Gimpsey, M. D. Shelby, and John B. Moon; also the sum of twenty-seven dollars and forty-three and one half cents for his costs by him about his suit in that behalf expended, whereof the said John W. P. McGimpsey, M. D. Shelby, and John B. Moon are convicted, as appears to us of record; and that you have the money before the judge of our said circuit court at the court-house of said county, in the town of Canton, the first Monday of November, 1840, to render to the said James H. Scott for debt, damages and costs as aforesaid; and have then and there this writ. Witness, Isaac R. Nicholson, judge of this seventh judicial district of said state, at the court-house of said county, the first Monday of May, 1840, and seal of this court. Issued the 14th day of May, 1840.
    
      “ William Montgomery, Cleric.
    
      “ By William Riley, Deputy.”
    Upon which execution the sheriff made the following indorsement and return, to- wit: “ In pursuance of the mandate of this writ to me directed, I have levied said Ji. fa. on the following tract or parcel of land of defendants, to wit: — ” (Setting out a description of the land by sections, parts of sections, township and range, containing in all four thousand nine hundred acres, and including the land described in the mortgage to the complainant, and continues thus:) “By virtue of this writ to me directed, I have this day caused to be made of the lands and tenements of the within-named J. W. P. McGimpsey, plaintiff’s money in full, and all costs in this case.
    “ SaMuel Hamblin, Sheriff.
    “July 20th, 1840.”
    • On the 30th day of March, 1843, the complainant filed an amended bill, reciting the substance of the original bill, and alleging that since the original bill was filed, judgments were recovered against him on two of the largest notes upon which he was surety for McGimpsey, and he had paid them both in full, and had one of the judgments assigned to him; and that the other notes had been paid and discharged, as he had been informed and believed, by McGimpsey. The amended bill was taken for confessed. On the 25th day of January, 1844, the cause was referred to the clerk of the court, to ascertain the amount of principal and interest due the complainant on the notes and mortgage in the bill mentioned. On the 27th day of January, 1844, the clerk reported, that there was due the complainant seventeen thousand and ninety-seven dollars and forty-five cents ; and on the 30th day of the same month that report was confirmed by the court. Upon the foregoing pleadings and evidence, the cause was submitted to the chancellor, who, on the 7th day of June, 1844, rendered a final decree, dismissing the bill, from which decree the complainant prayed an appeal to this court.
    
      Daniel Mayes, for appellant.
    It seems to have been taken for granted, that we proceed on the hypothesis, that the execution of the supersedeas bond and judgment by this court, extinguished the lien of the judgment of the Madison circuit court, and the cases of Kilpatrick v. Dye’s heirs, 4 S. & M. 292; and Planters Bank v. Calvit, 3 lb. 143, are relied on.
    
      The point of defence is not the point of attack. We admit that the judgment of the Madison circuit court retained its Hen. But Dick & Co. do not claim under that judgment. The fi. fa. exhibited by them, issued on and to carry into execution a judgment of this court, between other parties, for a different sum, and founded on a different cause of action. Had Scott sued on the bond for supersedeas, and obtained his judgment in that action, and sued out his fi. fa. on that judgment, could a purchaser have held against Montgomery’s mortgage, executed and recorded prior to the judgment! And if not, in what does this case differ from that? Only in the manner of proceeding to judgment, and the court in which that judgment is obtained. We contend that Scott had two judgments, one of the Madison circuit court, for f4103.ll, on a promissory note executed by Vincent Moore and McGimpsey. Another in this court for $4103.11, and $410.30, fonnded on a writ of error bond executed by McGimpsey, Shelby, and John B. Moon. By the former the promissory note was merged, by the latter the bond for supersedeas was merged. Scott might have elected to enforce the lien of the former by suing out an execution thereon, and having made his $4103.11, with its interest and the costs of that suit, he might have sued out an execution on the judgment of this court, and levied his damages, adjudged by this court. Had he done so, and Dick & Co. been the purchasers, could they have set up successfully the judgment of Madison as creating a lien, as to the damages recovered in this court? And they have attempted that; for if they purchased at all, they purchased as well for the damages as for the original debt. The purchase was one and entire, according to them. Now, how shall it be apportioned ?
    If they can successfully claim under the original judgment, it is because the judgment created a lien greater by $411.30 than itself.
    And if they can successfully claim under the judgment of this court, it will be, that it had a lien anterior to its own existence. Montgomery’s mortgage was certainly entitled to priority over the judgment for damages.
    
      The judgment of this courtis an entire thing; and yet to sustain Dick & Co. it must have a different operation as to some of the defendants, from its operation as to others. It must be a lien on McGimpsey’s estate from the time the judgment of Madison court was rendered, and as to. Shelby & Moore, from the date of the judgment of this court.
    It is an attempt to introduce a doctrine more obnoxious than that of tacking in case of wages. Scott might rightfully elect to proceed by ft. fa. to enforce the lien of the judgment of this •court. He did so proceed. And Dick &Co. having purchased under that judgment, cannot tack it to the judgment of Madison, •and thus in the language of the books squeeze out Montgomery. I rely on Scriba v. Deans, \ Brock. R. 169, as an authority for the principle for which I contend. But it is not necessary to labor this point: We deny that the sheriff sold an acre of the land embraced in our mortgage, and if he did, we deny that Dick & Co. purchased it. They rely on a purchase under judgment, and must show such purchase. They show no such thing; they only show that the execution was fully satisfied, and the money levied of the land and tenements of McGimpsey; what land, how much land, or who was purchaser we know not.
    The report of the commissioner which has been confirmed, •shows the amount of money due Montgomery, and it is asked that this court decree a foreclosure and sale for its payment, and enough will probably remain fully to reimburse Dick & Co., if they purchased and remain as true to their interests as they have heretofore been.
    
      Montgomery and Boyd, on the same side,
    cited H. & FI. 532, 1533 and 635; 4 How. R. 631, and 1 Paige’s R. 558.
    
      Tarpley, for appellees.
    Two points are presented by the record in this case.
    1. Does the writ of error, suspending the execution, operate as a discharge of the lien.
    2. Is the affirmance of the judgment in this court, and the recovery against the securities in the writ of error bond such a new and independent judgment as discharges and vacates the original judgment.
    In the case of Smith et al. v. Everly et al. 4 How. 185, the court determined that the act of 1824 was a lien from the rendition of the judgment, which could only be defeated or postponed by some act of the creditor, which act was fraudulent in law as against other creditors. But the lien thus created could never be lost by the improper or fraudulent act of the debtor. This rule is laid down by the court as applicable to the operation of judgments enjoined by the court of chancery; and to sustain the position the court relies upon the statute. Rev. Code, 95; Lynn v. Gridley, Walker’s R. 584'; and Conway v. Jett, 1 Mart. & Yerg. 373. The same rule applies to writ of error bonds. The operation of the judgment in both cases is merely suspended, subject to be restored to 'all its functions upon the dissolution of the injunction or the affirmance of the judgment. In the case of Overton v. Perkins and others, Mart. <fc Yerg. 370, the court lays down the position that the creditor cannot be ousted of his legal rights by the fraudulent conduct of the debtor. Blumfield's case, 5 Coke, 87; Lusk v. Ramsey, 3 Munford’s R. 54; 18 Johns. 311, 363. And where property has once been levied on the creditor has a right to have his judgment satisfied by the sale of the same, unless he be guilty of some default by which he loses his lien. 1 Salkeld, 322; 1 Burrow, 34; 3 Munford, 441. And the same rule applies to judgments from the date of their recovery in this state under the statute of 1824, as does in England by virtue of a levy of the execution. By the statute in Tennessee it was made the duty of the clerk, upon a dissolution of the injunction, to enter up judgment against the principal and securities in the injunction bond, which, according to the dictum of Judge Trotter, in Smith v. Everly, “might be considered a more comprehensive remedy, and analogous to a judgment on a forfeited forthcoming bond.” And yet in Overton v. Perkins et al. the court lays it down as a well-settled rule, that the rights of the plaintiff at law on the dissolution of the injunction shall stand on the same grounds it did when it issued. See Douglas, 71; Burrow, 660; 2 Bla. R. 784; 2 Bay, 123; Peck, 54.
    
      Both points in the argument have been fully answered by this court in the case of The Planters Bank v. Calvert. It was there determined that the affirmance of a judgment in this court against the defendant in the court below, and also against the-securities in the writ of error bond, was neither a satisfaction, a merger, or an extinguishment of the judgment below, and therefore did not interfere with the lien created by the judgment. And for the plain reason that, although the law annexes certain incidents to the affirmance of a judgment, it does not change its character, it but declares that the court below did right, and the law therefore attaches a cumulative remedy by judgment against the securities in the bond. Nor does “this new and more comprehensive remedy” have any analogy toa judgment on a forfeited forthcoming bond, so as to destroy the lien of the original judgment, because a bond is never taken without a levy of the exe--cution, and a levy is a legal satisfaction. So that in every point of view the opinion of the chancellor is fully sustained by the repeated decisions of this court, and the numerous authorities upon which those decisions have been predicated. See also Kilpatrick v. Dye's heirs, 4 S. & M. 292; Morton v. >3immo?is, 2 lb. 604.
   Mr. Chief Justice ShaRKEy

delivered the opinion of the court.

This is an appeal from the superior court of chancery, in which the bill was filed by Montgomery, under the following circumstances. Previous to the 2d of November, 1839, he had become bound, with others, as surety for McGimpsey for a very large amount of money due to various persons, all of whom are made defendants. On that day McGimpsey executed to him a' mortgage on about eighteen hundred acres of land, as an indemnity against his several liabilities. The bill charges that Dick, McClean, Booker, and Hill, pretend to claim title to the land; which, if they have any, was acquired by virtue of some lien posterior in point of time to his mortgage. None of these debts had been paid when the original bill was filed; but an amended or supplemental bill was filed after several of the debts were paid. The prayer is, that the incumbrances may be declared inoperative, and for a foreclosure.

None of the defendants answered, except Dick and Hill, who claim title to the land as purchasers at execution sale,-under a judgment older than the mortgage. The answer, with the exhibits, discloses this state of facts: On the 1st day of May, 1838, James H. Scott recovered a judgment against McGimpsey in the circuit court of Madison county, for $4000 debt, and $103 11 damages. An execution issued, and was placed in the hands of the sheriff, who was stopped from proceeding by an injunction from the superior court of chancery. The injunction was dissolved, and another execution issued, when the defendant McGimpsey sued out writs of error and supersedeas, and the case was brought to this court, when, at January term, 1840, the judgment of the circuit court of Madison county was affirmed, and judgment entered against the principal and his sureties for the amount of the judgment of the circuit court, ($4103 11) and ten percent, damages. This was certified by the clerk of this court to the clerk of the circuit court of Madison county, who issued an execution against the principal and sureties, which recites that the judgment of this court was rendered in affirmance of the judgment of the circuit court of Madison county. This execution was levied by the sheriff on four thousand nine hundred acres of land, which was particularly described by numbers according to the surveys, without specifying to whom it belonged. Then follows a general return of the sheriff, that by virtue of the writ he had caused to be made of the lands of McGimpsey the plaintiff’s money in full and costs. The land claimed under the mortgage was embraced in the levy.

It requires but a few remarks in addition to this history of the case to decide it. The judgment was older than the mortgage, and was of course the first entitled to satisfaction. The lien of the original judgment was not destroyed by the judgment of affirmance rendered by this court. The only question is, does the execution issued on the certificate of affirmance from this court so connect itself with the original judgment as to show the identity of the judgment affirmed with the judgment rendered in the circuit court on the 1st of May, 1838. The records are made exhibits to the answer, and from them it is plain that the execution under which the land was sold'was issued on the original judgment, in the manner prescribed by the statute. When the whole case is looked into, the foundation of the execution is at once seen.

But it is objected that the damages rendered by this court did not constitute a lien which was entitled to priority over the complainant’s mortgage. This may be true, but still that would not alter the case. The land was sold under a lien which was older than the mortgage, to wit, the original judgment, and of course, in the face of that sale, the chancellor could not have decreed a foreclosure. If the land sold for the amount of the original judgment and damages, the most that the complainant could claim would be the amount of the damages as a sum not covered by the older lien, but subject to his mortgage, as a surplus produced by the incumbered property over and above the amount of the preferred incumbrance. But there is a conclusive answer to this; there were four thousand nine hundred acres of land sold, when complainant had a lien on only eighteen hundred acres; he cannot therefore say that the mortgaged premises sold for more than enough to satisfy the judgment lien. But even if he were entitled to a surplus, who is liable for it? Surely not the purchaser. The judgment-creditor should be called on to refund, but he is not a party to the bill.

The decree of the chancellor is affirmed.  