
    Natchez Insurance Company v. John N. Helm.
    The case of Doe on the demise of Helm-v. The Nalchez Insurance Company, 8 S. & M. 197, so far as it relates to the construction of the valuation law, and the mode of appraising property levied on under execution, which is at the time under appraisement from previous levies on other executions; and also so far as it relates to the sale under the last execution of such previously appraised property ; cited and affirmed.
    The Natchez Insurance Company being the owner of some land, the Planters’ Bank and Rhasa Parker having each judgments against the company, the former for $4397, and the latter for $3761, levied executions on the land ; Stanton, Buckner & Co., after the other judgments also obtained a judgment against the company for $16,212, and levied their execution on the same lot; the two former levies being at the time suspended by the appraisement of the land, and its failure to bring the two thirds of the appraised value, the land under this last levy was appraised subject to the former incumbrances at $10,842, and was sold to Helm for $7228; being two thirds of the last appraisement; Helm afterwards purchased the Planters’ Bank and Parker judgments, and was proceeding to enforce them out of other property of the company ; whereupon the company filed their bill to enjoin their collection and procure their satisfaction : Held, that Helm having bought the property subject to those incumbrances, was bound to extinguish them, and could sell no other property under them but that which he had bought; and if the company had paid any part of these judgments before Helm purchased them, he must refund them the money so paid.
    A purchaser of property at sheriff’s sale, who settles his bid with the plaintiff in execution, by a debt he holds against the plaintiff, is as much a bonajide purchaser and entitled to the property, as if he had paid money; and it makes no difference if the judgment under which he purchased is after-wards reversed.
    On appeal from the vice-chancery court at Natchez; Hon. James M. Smiley, vice-chancellor.
    The bill states that in May, 1841, the sheriff levied an execution in favor of Parker, against complainants, on two lots in the city of Natchez, which were not sold for want of time; and afterwards a venditioni exponas issued. An execution in favor of the Planters’ Bank, against the same parties, was also levied on the same lots, in September, 1841. The lots were appraised at $35,000, and not sold because of a failure to bring two thirds of their value. At the return term of the last execution, to wit, November, 1841, Stanton, Buckner &Co., recovered a judgment against complainants, for $16,212, which was afterwards reversed, but before the reversal execution issued, returnable to May term, 1S42 which was also levied on .the same lots which had been levied on and offered for sale, under the prior executions. A second appraisement took place, in which the appraisers deducted from the value of the property the sum of $8158, the amount of the two executions which had been previously levied; that is, they valued it as incumbered property. The lots were on this appraisement valued at $10,842 over and above the amount of the incumbrance. It was sold to Helm for $7228, and the plaintiffs in execution directed the sheriff to make a deed to the purchaser, who had arranged the amount of the bid with them, and the deed was accordingly made. These proceedings, it is alleged, were void, and passed no title, because the appraisers had no authority to make the appraisement in the way they did, and because the lots were not subject to sale, in consequence of the previous levy. The bill also charges, that when Helm made the arrangement with Stanton, Buckner & Co., he knew them to be in failing circumstances, and they soon afterwards became bankrupts; that no actual payment was made, but Helm either gave his notes, or purchased the lots to secure an amount which Stanton, Buckner & Co. owed him; and in either event he is not a bona fide purchaser, and therefore not entitled to hold the property since the reversal of the judgment; and believing that Helm had not acquired title, they refused to deliver possession, and he thereupon commenced his action of ejectment. In November, 1842, writs of venditioni exponas issued on the executions, in favor of Parker and the Planters’ Bank; and in order to obtain a stay on the former, the complainants paid the latter, before the 23d of March, 1843, the amount of which was $4397, which sum they believe was paid by the sheriff to Helm, who had become the assignee of the judgment. On the 7th of April, 1847, Helm became the assignee of Parker’s judgment also, and had taken out a venditioni, to sell the lots, although he claims them under the sale made under the execution of Stanton, Buckner & Co.
    The prayer is for an injunction to stay proceedings in the ejectment suit, and on the Parker execution, by preventing the sale of the lots, or otherwise proceeding against the complainants thereon; and also, if the purchase of the lots by Helm should be deemed valid, that he be decreed to pay them the amount of his bid, and also the amount paid by them on the Planters’ Bank execution, to wit, $4397, with interest; and that he enter up satisfaction on the execution of Parker, so as to discharge complainants from further-liability.
    On the Sth of-June, 1847, the defendant moved to dissolve the injunction, which motion was.sustained, so far as to allow Helm to sell the lot in question, under the Parker execution, but not so as to allow him to proceed against complainants, on the execution, as to any other property. And he was also permitted to prosecute the ejectment suit to judgment.
    The defendant demurred to certain parts of the bill, to wit, to so much as showed the assignment of Parker’s judgment to him, that he was about to sell the lot under it; and to so much as ■prayed that satisfaction should be entered ou that judgment; and that defendant, as assignor, might be restrained from proceeding thereon against complainants.
    He also demurred to that part of the bill, which stated the levy, the new execution, the assignment and payment by complainants of the Planters’ Bank execution; and to the prayer that such payment should be refunded by defendant, because this part of the bill was multifarious, and because the court could not grant relief thereon.
    He also demurred to that part of the bill which relates to the recovery of the judgment of Stanton, Buckner So Co., and all the proceedings under that judgment, including the appraisement, the purchase by Helm, the supposed illegality of his title, the institution of the ejectment, &c. &e.; so that in truth the greater part of the bill was demurred to. The defendant answered such parts of the bill as were not covered by the demurrer, the particulars of wbieh need not here be set out.
    On hearing the demurrers, the first and second were overruled, and leave given to answer. The third demurrer was sustained.
    The complainants appealed, and the defendant took a cross-appeal, and the vice-chancellor has certified that he deemed an appeal necessary to settle the principles of the case.
    
      Geo. Winchester, for Natchez Insurance Company,
    Argued the case, and cited City of Natchez v. Minor, 10 S. So M, 246; Helm v. Natchez Insurance Co., 8 S. So M. 197.
    McMurran, for Helm,
    Cited in his brief, 8 S. So M. 197; 3 How. 66; IN. Y. Dig. 1020, 1021; 13 John. R. 101, 102; 15 lb. 395; 17 lb. 167; 4 Cow. 644; Cro. Jac. 246; Bankrupt Law, § 2, 34,.35; 2 Bibb, 204; 4 John. R. 536, 541, 542, 589, 602.
   Mr. Chief Justice Sharkey

delivered, the opinion of the court.

The objects of this bill are twofold; 1st, to vacate a sale of a lot, made under an execution, in favor of Stanton, Buckner & Co., against complainants, at which Helm became the purchaser, and has instituted ejectment for the premises; and if that cannot be done, then, 2d, for relief against an execution in favor of Parker, on the ground that it should be satisfied out of the lot in question, and further to have refunded the amount which complainants paid on an execution in favor of the Planters’ Bank, because that too should have been satisfied in the same way.

Rhasa Parker and the Planters’ Bank had both recovered judgments against the complainants. The executions were levied on the lot, and it was appraised at $35,000. Failing to bring two thirds of its value, the sale was postponed. In the mean time, Stanton, Buckner <fc Co. recovered their judgment for $16,212, which was afterwards reversed, but before the reversal, execution was levied on the same lot which was then under the levy of the two former executions; it was again appraised, and the appraisers deducted from its value the amount of the two executions which were then levied on it, and valued it, subject to the incumbrances, at $10,842. It was offered for sale, and Helm became the purchaser at $7228, and the plaintiffs in execution directed the sheriff to make him a deed, as he had arranged the amount of the bid with them.

The purchase by Helm is attacked on several grounds. It is said that he is not a bona fide purchaser, and is therefore affected by the reversal of the judgment. The bill charges that he either gave his notes for the amount, or it was arranged by liquidating the indebtedness of Stanton, Buckner & Co. to him. A discovery on this subject is called for, and Helm answers that part of the amount bid by him was appropriated by arrangement in satisfaction of the indebtedness of the plaintiffs in execution, and the balance he paid them in cash. If he had paid them the money, it would have been the same thing as though it had been paid to the sheriff. If they agree to receive the amount bid by him in discharge of their indebtedness, it is in effect the same thing. The object of the sale was to satisfy them, and it is accomplished. The defendants are discharged to the extent of the bid. This branch of the subject was considered when the ejectment suit of Helm was before this court. 8 S. & M. 197. The validity of the transaction was then sustained, and its aspect is not so materially changed as to authorize a court of chancery to vacate the sale. It is alleged that when Helm made the purchase, Stanton, Buckner ■& Co. were in failing circumstances, and not long afterwards became bankrupts. If this were true, it would not necessarily vitiate a sale made under execution ; but the answer denies that respondent knew any thing of their intention to take the benefit of the bankrupt act, and avers that the purchase was made in good faith, at a fair and open public sale.

It is also alleged, that the appraisers transcended their authority in taking into consideration the amount of the two previous executions which had been levied on the property, and furthermore that the property was not subject to sale, as it was then subject to the levy of the prior executions. These questions were also very fully considered in the case in 8 S. & M. The appraisement was sustained, as was also the right to sell the property under this execution. The bill does not set up any circumstances in addition to those which were relied on in the previous investigations. There is nothing therefore which can justify an interference with Helm’s title, and we proceed to the other questions presented by the bill.

It seems that after Helm purchased under the execution of Stanton, Buckner & Co., he purchased the judgments in favor of Parker and the Planters’ Bank, on which writs of venditioni exponas issued after the stay caused by the failure to sell under the first valuation. The levies under the writs of fieri facias were pending on the property at the time Helm purchased; it had been valued with a view to these circumstances, and Helm purchased subject to them. The plaintiffs had not only a general lien by virtue of their older judgments, but they had levied their executions on the property, and had thus acquired a specific lien, which was suspended by virtue of the appraisement law, and the hands of the plaintiffs tied for twelve months, during which time the property still remained in the hands of the law as the subject of the levy. At the expiration of that time the law had directed that it should be sold for whatever it would bring. Under the circumstances, Helm was bound to submit to the sale, or to relieve his property by paying off the' incumbrances. It is expressly decided, in the case above referred to-, that he was bound to satisfy the liens. He purchased at a valuation which was made subject to them, and thus received the benefit, and the complainants must be losers to that- amount unless he be compelled to relieve them1. He bought an incumbered property, and must take it with the incumbrances. The complainants aver that they were compelled to pay off the Planters’ Bank execution. If this be so, of course Helm must refund the amount to them. In doing so, they relieved his property from an incumbrance under which it was bound to be sold, and he is of course benefited to that extent. And this is so-,- whether' he be the assignee of the judgment or not; that circumstance makes no difference, or if it does, it increases his obligation to refund, because as assignee he should never have issued an execution which he himself was first liable to pay. The property of the complainants had already been virtually appropriated to the payment of this same execution; they are doubly losers unless he be compelled to refund.

With regard to the Parker execution, the same rule must apply, so far as to exonerate the complainants from liability, if Helm is the assignee. They are entitled to have the execution perpetually enjoined as to all other property, and this, as to them, is equivalent to an entry of satisfaction, which is prayed for. If Helm desires to sell his own property under his own execution, no very good reason is perceived why he should not be permitted to do so, and perhaps the complainants are the last persons who should complain at such a course.

On motion, the vice-chancellor dissolved the injunction so far' as to allow Helm to sell the lot under the Parker execution, but not so far as-to allow him to proceed against the complainants as to any other property. And he was also permitted to prosecute the ejectment suit to judgment.

The defendant demurred to all that part of the bill, which related to the assignment and subsequent proceedings under the Parker execution, and the prayer that satisfaction might be entered, and that he might be enjoined from further proceedings thereon; and also to all that part of the bill which related to the Planters’ Bank execution, and the prayer that the amount thereof might be refunded.

He further demurred to that part of the bill which relates to the judgment of Stanton, Buckner & Co., including the allegations as to the appraisement, the purchase by Helm, the illegality of his title, the institution of the ejectment, &c. &c.

The first and second demurrers were overruled, and leave given to answer. The third demurrer was sustained, and cross-appeals were prayed for and allowed, the vice-chancellor deeming them necessary to settle the principles of the case.

His decisions seem to have been strictly correct, and are affirmed, and the cause remanded.  