Branch of the Bank of Alabama v. Hunt , 8 Ala. 876 ( 1846 )

COLLIER, C. J.

The conveyance from the mortgagor, Wallace, to Campbell, from the latter to Sayre & Converse, from them to Pritchard, and from him to the complainant, invested the Bank with the equity of redemption in the premises in question ; and when McCoy and English transferred their interest as mortgagees, the complainant was clothed with all the title that Wallace previously had. McCoy and English having disposed of their lien as incumbrancers, could have had no further inducement to prosecute the suit they had instituted, than merely to see that it was so terminated as not to subject them to costs. Their assignee might, at least, if they did not object, have continued its prosecution for the purpose of more effectually securing a title by a foreclosure and sale. It is possible that this purpose might have been effected, and it is difficult to conceive of any other that could have prevented its dismissal.

We will consider the case upon the hypothesis that in advertising and selling the property, the register was endeavoring honestly to discharge his duty ; for there is nothing in the record to warrant the imputation of mala fides. It is unnecessary to in-inquire how judicial sales are conducted by a master in chancery in England, or whether it is his duty to inform the parties, or their solicitors, of the time when the bidding will be opened and closed: suffice it to say, that it is, in many respects, essentially different from the comrse of procedure in this country. [See Bennet’Pr. 162 to 167; 2 Smith’s Ch. Prac. 178-9 ; Collier v. Whipple, 13 Wend. Rep. 233-4, by Maison, Senator; Collier v. The Bank of Newbern, 1 Dev. & Bat. Eq. Rep. 328.]

According to the practice of the English Chancery, some of the reports of a master are complete as soon as they are filed, and do not require confirmation by the Court. But there are others which involve a question of law, or of fact, upon which the Court may be called upon to give a legal decision, and of this description, is the report, allowing the highest bidder at a sale under a decree, to be the pui’chasez’. This latter class of reports, it is said, must be confirmed by orders nisi and absolute, before any proceedings can be regularly taken upon them, and until this is done, no “ consequential directions upon it,” can be ordered. [2 Smith’s Ch. Pr. 358 ; Scott v. Livesey, 1 Cond. Eng. Ch. Rep. 467.] Bennet, in his practice in the master’s office, 167-8, thus states the mode of proceeding, viz: “ The sale having been completed, the purchaser, in case he shall be a willing one, procures the report of the master of his having been the purchaser at the sale, or the solicitors for the vendor may, if it be delayed by the purchaser, obtain this report. When obtained, the party who procures it, having had it duly filed at the réport office, and an office copy thereof taken, may on the next seal after the date of the report, move o.i petition for an order nisi, to confirm such report: copies of this having been served on the clerks in Court of all the proper parties in the cause, and no cause shown within the usual time, the report of his being the purchaser is confirmed absolutely.”

The act of 1841, “to regulate the practice in the Courts of Chancery in this State,” enacts, that “unless exceptions have been filed to the report of the Master, the same shall be confirmed by the Court, after two days notice.” [Clay’s Dig. 355, § 65.] And the fifty-first rule for the regulation of the practice in Chancery, provides, that “the rules of the English Court of Chancery, not inconsistent with the statutes of this State, and the rules and decisions of this Court, so far as consistent with the institutions of this country, are hereby adopted as rules of practice in Courts of Chancery in this State.” [Clay’s Dig. 618.] The rules which prescribe the mode of proceeding, in order to confirm the Master’s report of a sale, are certainly in harmony with our decisions, at least so far as they require a notice to be given to the parties interested, or their solicitors, and are not opposed by any consideration of policy. Our rules are silent as to the manner in which the order shall be obtained, and if the case is not embraced by the act of 1841, recourse must be had to the English practice.

In the case at bar, there is no pretence that notice was ever given, that a confirmation of the sale, and consequent order to let the purchaser into possession, would ever be moved for. The Registeiyin his deposition, states that the complainant has never received the proceeds of the sale, and that he never gave it any inforrnation about the sale, either before or after it was confirmed. Under this state of facts, the confirmation cannot be sustained— notice, or something which the law regards equivalent, is in general an essential pre-requisite to judicial action; and where a Court assumes to act without it, its decisions are merely void. This being the case, the order of confirmation cannot be allowed to prejudice the complainant’s rights, but we must consider the application to set aside the sale, as if that order had never been made.

The manner of proceeding in order to open the biddings, after a sale has been made under a decree of a Court of Equity, either by a party to the cause, or a stranger, as well before as after confirmation, is fully pointed out by the elementary writers, upon the Chancery practice, and occasionally stated in an adjudged case, [2 Smith’s Ch. Prac. 236, et post; Bennet’s Prac. 171, et post; 2 Har. &. Gill’s Rep. 346; 13 Wend. Rep. 224.J But it is unnecessary here to consider how this result is effected; for the point has already been examined by this Court. In Littell v. Zuntz, 2 Ala. Rep. 256, we said, “when a stranger is the purchaser at a mortgage sale, it will not be set aside for mere inadequacy, no matter how gross, unless there be some unfair practice at the sale, or unléss those interested are surprised without fault or negligence on their part.” « But where the mortgagee is the purchaser, and the debt secured by the mortgage is not discharged by the sale, no reason is perceived why the bidding should not be opened once, upon the offer of a reasonable advance on the former sale, together with the purchaser’s costs and expenses, which should be deposited in Court.” The reason for the distinction between the purchase by a stranger, and the mortgagee, may perhaps be considered well founded, but as it does not form an element in our judgment, in the present case, it need not be here noticed. It is however conceded, that “ the right to set aside a sale made by an order of the Court of Chancery, when a proper case is presented, must of necessity be an attribute of that Court, as the same power is exercised by a Court of Law, when its process has been abused, and the power of a Court of Chancery cannot be inferior.”

In the Mobile Cotton Press, &c. v. Moore & Magee, 9 Porter’s Rep. 679, we considered at length the right of a Court to interfere summarily, where a fieri facias issued by its clerk had been executed irregularly, &c.; and made these deductions from the authorities there reviewed, viz: “1. A party injured by the improper execution of a fieri facias may obtain redress, on motion to the court from which the writ issued. 2. That a sale of land will be set aside where the sheriff is guilty of a mistake, irregularity, or fraud, to the prejudice of either party, or a third person. 3. So the misrepresentation or fraud of a purchaser, furnishes just ground for invalidating the sale.” Again, we say, “considering the case upon the facts, which are not denied by the answers, and we think it clearly appears, that the sale was made by the sheriff, either under a misapprehension of duty, or else a misconception of the arrangement between the parties, which they endeavored to communicate to him. In either view, the result would be the same — the sale should be set aside.”

It was said, in Jackson v. Roberts, 7 Wend. Rep. 83, that “ a party who may be injured by the mistake of a sheriff, can have relief by a summary application to the court under whose authority the officer acts, or through the medium of a court of equity.” So in Arnott & Copper v. Nichols, 1 Har. & Johns. Rep. 471, it was held that a court possesses an equitable control over its executions, and may, on motion, quash the return of a sheriff. And a sale made en masse of divers lots of ground, situated in the same town, but 'detached from each other, was set aside on motion ; the court remarking that such a sale was prima facie void, and he who seeks to sustain it, must show its justice and expediency. [Nesbit v. Dallam, 7 Gill & Johns. Rep. 512.] In that case it was shown that the property did not sell for more than one third of its intrinsic value; upon which the court observed,that “such a disparity between the price and value of the property sold, furnishes intrinsic evidence of the irregularity, impropriety, or unfairness of the sale ; and connected with any of the several omissions of duty, or indiscretions of the sheriff, leaves not a shadow of discretion. as to vacating this sale.”

Mere inadequacy of price, it has been held, is not per se a sufficient cause for setting aside a sale of lands under execution, but coupled with other circumstances it may be. [Stockton v. Owing, Litt. Sel. Cases, 256; Tripp v. Cook, 26 Wend. Rep. 143.] In Knight v. Applegate’s Heirs, 3 Monr. Rep. 388, the clerk omitted to notice on the fieri facias,- a credit for about half the judgment entered at its foot, and the sheriff raised the entire sum by the sale of land, the title of the land it was considered would not pass to the purchaser. See also, Collier v. Whipple, 13 Wen. Rep. 224; Tripp v. Cook, 26 Wend. Rep. 143.

In the case at bar, we have seen that the .complainant became the sole proprietor of the premises in question, so far as the title was vested in the mortgagor, or the mortgagees and the assignee, who claimed under the latter. This title, for any thing shown to the contrary, was complete, and it may, if necessary, be so assumed. The complainant then, may be considered the only party in interest to the cause and decree in favor of McCoy &. English, by which the equity of redemption under the mortgage executed by Wallace was foreclosed.

It sufficiently appears, we think, that the'sale by the Master was made under a misconception of the wishes and intentions of the complainant. True, the master was not informed what were the intentions of the complainant, yet as there was no other person who appeared to have an interest in the premises, we cannot think that the want of such information forms an ohjection against the power or propriety of setting aside the sale. Wc think the application of the cpmplainant comes within the principles recognized in the Mobile Cotton Press, &c. v. Moore & Magee, 9 Porter’s Rep. supra.

The remark made by the Master to the President of the' Bank, immediately after the postponement of the sale, when the property was first offered, and the reply of the President, amounts to nothing more than a declaration by the latter, when informed of the fact, that there could be no objection to what the Master had done. It cannot certainly be inferred that the President was aware of the time when the premises would be again offered for sale, or that ho regarded the communication of the Master as intended to operate as a notice, or concurred in what he after-wards did.

But if the argument of the defendant’s counsel be defensible upon this branch of the case, what consequences result from it 1 Is it competent for the President of a banking corporation to take upon himself the right to control the collection of its debts, or direct the sale of its property ? [Spyker v. Spence, at the last term.] To confer such power, must not a resolution, or some other equivalent act of the directory be shown ? The view we take of the facts, makes it unnecessary to decide this point.

It is perfectly clear that the assent of the complainant to the sale by the master, cannot be inferred from any act or omission subsequent to that time ; for it 'does not appear that airy notice was ever given to the complainant, or that it was otherwise informed that a sale had been made.

There is no pretence for inferring that complainant was informed of what had been done,and assented to it; consequently it is not necessary to consider within what time proceedings should ordinarily be instituted to set aside a sale by the master. From what has been said, it results that the decree must be reversed, and the cause remanded.