Peoples Bank v. West

Citations

• 67 Miss. 729

Syllabus

<p>1. Attachment. Void levy on land. Code 1880, §§ 2424, 2425.</p> <p>Under § 2424, code 1880, in case of the attachment of occupied land, if the officer serving the writ does not “go to the house or land of the defendant, or to the person or house of the person in whose possession the same may be, and then and there declare that he attaches the same, at the suit of the plaintiff,” the levy is void, and no lien will be acquired. The officer must make a “full return of all his proceedings,” and he must show conformity, in substance at least, with the statutory requirements. Sherman v. Bank, 66 Miss. 648.</p> <p>2. Same. Creditors bill. Code 1880, § 1845. Prior lien acquired.</p> <p>A creditor who after such invalid levy files a bill to set aside a fraudulent conveyance by the defendant, and thereby, under § 1845, code 1880, acquires a lien on the land, has priority over the attaching creditor. _</p> <p>3. Same. Judgment in attachment. Lien does not relate back. Collateral attack.</p> <p>This is true, although such insufficient levy is noted in the return, and the defendant is personally summoned and appears at the return term and consents to a judgment condemning the land under the attachment, the creditors bill being filed before such judgment. Without a levy, there is no lien, and the judgment cannot retroactively create one to cut out intervening rights. Even on a collateral attaek,'the lien creditor may show that there was no valid levy.</p> <p>4. Clouds on Title. Bill to remove. Complainant's right. Common source oj title.</p> <p>One seeking cancellation of a title as a cloud upon his own must show that he is the owner of the land ; but where both parties claim from a common source, this is an admission that the title was in such source, and if the complainant shows that he has the title derived therefrom, he is entitled to a decree, without further proof of title.</p> <p>5. Same. JRemedy by ejectment. Will not debar complainant. Code 1880, § 1833.</p> <p>Under