Dabney v. Stackhouse

Citations

• 49 Miss. 513

Syllabus

<p>1. Liek — Priority of — Code 1857, Abt. 260. — If the senior judgment creditor, having the prior lien, after the reception of the ten days’ notice, neglects to sue out execution, until after the levy under execution on the junior judgment, then he loses his priority. 5C. and O. R. R. Co. v. Trotter, 36 Miss. R., 418.</p> <p>2. Effect of this Stítute. — The theory of our statutes has, under all the several changes therein, been to give the preference to the oldest judgment and lien, unless the oldest creditor, by some act of omission or commission, loses his priority. He is not affected by the negligence of the sheriff. Lucas v. Stowart, 3 S. & H., 231; Grand Gulf Banlc v. Henderson, 5 Howard, 292.</p> <p>3. Indemnifying Bond — Effect thereof. — when two executions in favor of two separate creditors are levied, the creditor executing the indemnifying bond would be entitled to the money; because the sale would be the effect of his superior diligence, risk and responsibility, although the senior judgment creditor executed a bond after the writ of venditioni exponas had been issued.</p>