Carter v. Brandy
Carter v. Brandy
Opinion of the Court
delivered the opinion of the court.
The circuit court rightly held that the execution issued on the decree, and by virtue of which the sale and conveyance were made under which the plaintiff claimed title, was void for want of authority to issue it, without the security required by § 1902, code 1880, and § 491, code 1892. This security is something required to be given after decree. It is not part of the decree, and the fact that in this case a direction for a special writ was improperly included in the decree does not make applicable the rule denying the assailability collaterally of a decree. The decree was to be made, and afterward, “before any proceedings to satisfy said decree,” the court was to require the prescribed security. The writ of venditioni exponas in this case was void, not being issued by order of the court after decree, and requirement of security as prescribed. In order to divest the title of an absent defendant brought in by publication and not appearing, there must be conformity to law.
Affirmed.
Reference
- Full Case Name
- John A. Carter, Trustee v. Haywood Brandy
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- 1. Attachment in Chancery. Non resident. Refunding bond. Code 1880, 'i 1902. Where, in an attachment in chancery, a decree is rendered against a nonresident defendant on publication only, without appearance, an execution thereon, issued before complainant has given the security required by \\ 1902, code 1880, for abiding further orders of the court and restoring the property if defendant should appear and answer, is void, and a sale thereunder passes no title. .2. Same. Refunding bond. When given. Void sale. Collateral attack. Such refunding bond must be given after the decree and before proceedings to enforce it. The fact that the decree itself directs the issuance of a writ for the sale of the property does not validate, even as against collateral attack, a sale made under an execution issued before the giving of such security.