Dale v. Shirley , 47 Ky. 524 ( 1848 )

Chief Justice Maes-hale

delivered the opinion of the Court.

Daub having, for two years after the entry of the-mandate of this Court, failed to-pay the money in Court as he was allowed by the said mandate to- do, we are of opinion that the Court was not bound, on his offer of the money at so late a period and without explanation, to allow him to pay it with the effect of entitling himself to a quashal of the previous sale and to the benefit of the elder mortgage of Shirley: See Dale vs Shirley, (5 B. Monroe, 492.) As the decree confirming the sale was reversed,and the sale, therefore, stood unconfirmed, the Chancellor might still have had a- discretion to confirm it or to set it aside. But as upon the evidence brought forward on the motion to quash,, it appeared-that Dale had assigned to Shirley the very claims, on account of which his right to interfere in. the case and his equity to redeem Shirley’s mortgage, had been recognized and established by this Court, and had, in return, received a portion of the benefit of Shirley’s purchase, this change in the rights and attitude of the parties, took away the entire basis on which the directions of the Court were founded, and rendered them inapplicable to the case. The parties had, in effect, compromised their controversy and confirmed the sale. And a quashal of it by the Court, on the motion of one and pgainst the consent of the other, could not have been, proper, unless upon grounds which would have authorized a rescission of the compromise and a restoration of the parties to their original rights and attitude. The fairness and validity of this compromise are in litigation between the parties in a suit in equity, pending in the same Court, the record of which was introduced in opposition lo the motion of Dale to quash the sale. And We need only remark that the present state of that litigation is not such as to require or authorize the quashal of the sale, and that the equities of the parties will probably be better ascertained and enforced in that suit than they could be in a motion'of this sort, before its termination.

V. Monroe and Rogers for plaintiff; B. Sf A. Monroe for defendant.

Wherefore, the order overruling the motion of Dale is .affirmed.