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McGill v. McGill-Opinion of Court.
etty therein provided for; in other words, whether an appeal taken within thirty days after the said decree of dirorce and bond given and approved, as provided by law in common law actions, suspended the action of the court in that case. The order now appealed from was made after the appeal from the decree of divorce was taken and bond given.
By the act of February 10, 1832, when decrees could be entered only in open court, it was provided that any party to a judgment, sentence or decree might “during the session of the court at which such judgment, sentence or decree is rendered or pronounced, or within ten days thereafter," obtain an appeal, and such appeal should in all cases operate as a supersedeas. The party appealing, if defendant, was required to give bond with surety "in a sum sufficient to recover the amount for which judgment had been given, decree rendered or sentence pronounced, together with costs,” conditioned that the appellant shall pay "the debt, damages or condemnation, and costs, in case the judgment, sentence or decree of the Circuit Court shall be confirmed.” Th. Dig., 446.
On February II, 1832,"an act to amend an act to regulate proceedings in chancery” was passed, (Th. Dig., 462, Sec. 3,) providing that the plaintiff or defendant therein "may appeal from the said decree at any time within two years; Provided, however, That the same shall not operate as a supersedeas unless the said appeal be taken within the time fixed by law in other cases, or if not taken within that time, upon an order of one of the Judges of the Supreme Court, directing the said appeal to operate as a supersedeas, in which event bond and security shall be given as provided by law.”
It is thus found that the only security exacted under the statute is a bond for the payment of money, “the debt, dam
McGill v. McGill-Opinion of Court.
ages or condemnation and costs." in case the judgment, sentence or decree shall be affirmed; the amount being “a sum sufficient to cover the amount for which judgment has been given, decree rendered or sentence pronounced, together with costs.”
The decree in the present case pronounces a divorce, decrees the custody of the child, requires the defendant to surrender the wife's separate real and personal property (no value thereof being named) to surrender certain notes (no value named) and to pay the costs of suit. The bond given was in the penal sum of one hundred and fifty dollars to cover the amount of the decree rendered. The only "amount" mentioned in the decree is the sum of the costs taxed.
It was clearly within the contemplation of the Legislature that the decrees mentioned in the statutes referred to were those which required the payment of money and no others. The provisions relate to the “judgment, sentence or decree and the amount for which the same were rendered or pronounced. There is nothing in the statutes indicating that the power of the Chancellor or the Appellate Court, as it has existed for a long period in the administration of equity, was intended to be controlled or regulated by them, except in cases of decrees for the payment of money, in which cases the bond required is the same as that to be given to secure money judgments at law.”
“It is an established rule that an order for a rehearing or an appeal does not stop the proceedings under the decree or order appealed from, without the special order of the court. And it seems that it is the duty of the court to exercise its discretion according to the circumstances of each particular case, and no general rule can be laid down upon the subject.” 2 Dan. Pl. & Pr., Perkin's Ed., 1547, 1549.
The "amount" of a clecree which directs the delivery of
McGill v. McGill-Opinion of Court.
specific articles, of pictures, of title papers, of stock certificates, documents and the like is an absurdity. The settled rules of equity, like those of the common law, are the law of the land wherever the English system prevails, until changed by the Legislature or by its authority; and until the Legislature authorizes the change in cases other than those where money is decreed to be paid the power remains in the court to suspend decrees, when appeals are taken, upon such terms as shall be deemed appropriate to the protection of parties.
The reasonable conclusion is that on an appeal from a final decree contemplating the future action of parties and of the court, except for the payment of a sum of money named, the granting of a supersedeas is still within the power and discretion of the court and has not been affected hy legislation.
In the present case the giving of the bond by the appellant did not suspend the decree except so far as it directed the payment of money by the defendant, and so far as the power of the Chancellor is concerned in respect to the delivery of the property mentioned or the custody of the child, it remained unaffected by the appeal and the giving of the statutory bond.
As to the decree last appealed from, by which the defendant is directed to deliver to the sheriff "eleven bales of cotton, the amount of rent due on the land of petitioner" (complainant), it cannot be sustained. We held, on the appeal from the principal decree in this cause, that the wife can have no action against the husband for the rents and profits of her land which were in his possession, care and nianagement in virtue of his marital rights under the statute of 1845. Upon further consideration we find no reason to change our conclusions there expressed. McGill vs. MeGill, decided at the present term.
The order of 9th September, 1881, is reversed.
Neal v. Gregory et al.-Syllabus.
Sarah A. NEAL AS EXECUTRIX, &c., OF WILLIAM M. C.
NEAL, APPELLANT, vs. Ivey H. GREGORY, ET AL., APPELLEES.
1. Mistake in the execution of a deed in that it was not executed under
seal, must be clearly shown in order to its reformation. 2. Payment of the purchase money alone or delivery of the property
the consideration for land agreed to be sold does not give the purchaser the right to maintain a bill to enjoin sale under execution upon a judgment obtained by a judgment creditor of the party agreeing to make the deed. The remedy of the party de-livering the property is at law for its value. An interest in land cannot be thus acquired except to the extent permitted by the statute of frauds, and the party delivering the property has no greater equity than that of a general creditor to an amount equal
to the value of the property delivered. 3. A bona fide purchaser for value without notice from a fraudulent
grantee gets a good title as against a creditor of the fraudulent grantor. Where, however, the paper purporting to be a deed from grantor to grantee is not under seal no title passes to the
alleged grantee and he can make no title to the purchaser. 4. Where the alleged fraudulent grantor is present at the purchase
from the alleged fraudulent grantee at the request of the purchaser his, the grantor's simple silence unaccompanied by any misrepresentation as to the state of the title, or of proof of knowledge upon his part of the title, or that his silence was in any way the inducement of the purchase, or that he was guilty of any concealment, and where the proof shows affirmatively that all the transactions of the alleged grantor with the purchaser up to that time were based upon a claim of title in himself, and where the purchaser aware of the inconsistent claim of title is guilty of extraordinary laches and negligence in not examining the county records which disclose the actual state of the title, no estoppel operates to transfer the interest or estate of the alleged grantor in the land
to the purchaser. 5. The retention of the possession of land after absolute sale accompan
ied with the exercise of unequivocal acts of ownership over it is a badge of fraud for it is not in the usual course of business and indicates a secret trust for the debtor.
Neal v. Gregory et al.—Statement of Case.
6. In case of such a sale and retention of possession accompanied by
appropriation of the rents and profits and acts of ownership the burden of proof is upon the party asserting the existence of and payment of the consideration named in the deed, and claiming the benefit thereof to establish such facts.
Appeal from the Circourt Court for Gadsden county. The suit was begun in Liberty county.
The following statement of the case was prepared by Mr. Justice Westcott:
This suit was instituted in chancery by the appellant's testator, who sought to enjoin sales of the land which is the subject of this controversy under executions issued upon judgments obtained on the 19th of April, 1869, by John T. Seegar for the use of C. H. DuPont and Ivey H. Gregory in the aggregate sum of three thousand one hundred and twenty-four twenty-nine one-hundredths dollars against Thomas D. Nixon, who has died since the rendition of the judgments, the defendant, William H. Neal, being his administrator. The suits were instituted in the early part of 1867. The general equity claimed is that the land is not the property of the defendant in execution, plaintiff alleging the fact to be that anterior to these judgments against Nixon he became the owner of the land by virtue of a deed from Atkins, Dunham & Co., who had purchased the land and held a deed therefor from the defendant in execution, Nixon. What purports to be the deed from Nixon to Atkins, Dunham & Co. is dated the 26th June, 1866, covers the land in controversy, "together with certain personal property” for the expressed consideration, being eight thousand dollars ($8,000) in hand paid. There is no seal to this deed. One purpose of the suit is to reform the deed, it being alleged that the omission to seal the intended deed occurred through mistake or accident. The deed of Atkins, Dunham & Co., dated the 29th February,