Cockey v. Cole , 1868 Md. LEXIS 19 ( 1868 )

Alvey, J.,

delivered the opinion of this Court.

There is but one exception in this case, and that raises the single question as to the admissibility of the record offered as evidence for the defendants in the Court below. While on the part of the appellants it is contended, that the record offered, containing proceedings of a Court of general and competent jurisdiction, should have been admitted as evidence by the Court below, it is contended, on the part of the appellee, that the proceedings were eoram non judiee, and that the sale shown to have been made by Horwitz to the defendant, Thomas T. Cockey, was absolutely void; and, being so, the record was wholly inadmissible for any purpose whatever. The proceedings in question were had in the Circuit Court for Baltimore county, as a Court of Equity, and purport to be under and in pursuance of the 64th Art., of the Code of Public General Laws, providing the mode of foreclosing mortgages, and the distribution of the proceeds of sale of the mortgaged premises. It is urged against the admissibility of the proceedings offered that.no rightful jurisdiction did or could attach in the Circuit Court where they were had, because of the failure of the mortgagee to give such bond as was required of 3iim by the 6th sec. of the Art., referred to, before he proceeded to make sale; and although a bond was given, it is insisted that it was not such as gratified the requirement of the statute, and authorized the making of the sale that was afterwards duly reported, and finally ratified by the Court. The question of the validity of the bond that was in fact given, we do not deem material to decide in this case. The non-conformity of its condition to the requirements of the law, may have formed good grounds for objection to the ratification of the sale, but we think it no sufficient ground for declaring, in this collateral way, the whole proceeding a nullity.

The Court in which these proceedings took place was not one of special or limited jurisdiction, but of general common law and chancery powers. Foreclosure of mortgages, and the execution of trusts, were subject matter peculiarly within its jurisdictional power; and the statute simply provided a summary mode for the exercise of an ordinary jurisdiction. Instead of a regular proceeding for foreclosure, the agreement of parties, as expressed in the power contained in the deed of mortgage, is substituted for a decree of sale, and upon report to, and final ratification by the Court, the sale has all the judicial sanction that it could have on more formal proceedings. By the very terms of the 8th sec. of the Article of the Code, already referred to, the general Chancery jurisdiction of the Court, is evoked and brought into active exercise; for it is therein provided that “ all such sales shall be reported under oath to the Court having Chancery jurisdiction where the sale is made, and there shall be the same proceedings on such report as if the same were made by a trustee wilder a decree of said Court.” This, therefore, is not the ease of special and extraordinary powers given by statute to a Court in relation to a subject matter, of which such Court has no jurisdiction independent of the statute, and which derives its authority to act entirely from the statute giving the power, and prescribing the mode of proceeding. In such case, to render valid the exercise of the power given, all the requisites of the statute must be strictly complied with. But the provisions of the statute upon which the proceedings in question were founded, profess to give no new jurisdiction, but only to prescribe a summary mode for the exercise of jurisdiction over the subject matter, of which the Court had full and ample cognizance, independent of the statute provision.

In the proceeding under consideration, it may be that there were errors and irregularities for which the sale would have been set aside, if exception had been taken to its ratification in the direct proceeding, or that the final order of ratification would have been vacated, if an appeal had been taken therefrom ; but it does not by any means follow, that objection can be sustained, when made for such causes, in a collateral proceeding. For “ where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or not, its judgment, until reversed, is regarded as binding in every other Court. But if it .act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought in opposition to them even prior to a reversal.” Elliott, et al. vs. Piersol, et al., 1 Pet, 340.

It was earnestly contended by the appellee’s counsel, that the terms of the statute, “before any person so authorized shall make any such sale, he shall give bond;” áre imperative, and that the giving of a proper bond, with condition strictly in conformity to the provisions of the law, was a jurisdictional fact, a condition precedent to the existence of jurisdiction, and that without an exact compliance with the law in this respect, the sale must be treated as void. In this, as we have already said, we do not concur. The legal question, as to the sufficiency of the bond, was one for that Court to determine in which the proceedings occurred; and whether it determined rightfully or otherwise, is immaterial, so far as the validity of the record, offered in evidence in this case, is brought into question. That Court had jurisdiction of the subject matter; and if its jurisdiction was improvidently exercised, it would be intolerable to hold that its errors could be corrected, in a collateral proceeding, at the expense of an innocent purchaser, who had a right to rely upon the final order of ratification of the sale, as the proper exercise of judicial authority. Sales thus sanctioned, when collaterally called in question, should be upheld by every legal intendment. And as an authority for the position just stated, the case of Thompson vs. Tolmie, 2 Pet., 157, is full and conclusive, and the reasoning of the Court strikingly apposite to the case before ns. There the heirs of Tolmie instituted a proceeding in the Circuit Court for the District of Columbia, for partition of the real estate of their ancestor, and partition was awarded by the order of the Court; but the property being reported indivisible, it was then ordered to be sold, and it was sold accordingly. Afterwards the heirs brought an action of ejectment for the land, and founded their pretention upon the want of jurisdiction in the Circuit Court to pass the order of sale, or to give the sale legal sanction after it was made. None of the heirs of the deceased had become of age at the time of the sale, and the statute, under which the proceedings were had, expressly prohibited a sale until the eldest heir was of age; and this was alleged as the defect of jurisdiction. It was contended there, as it has been contended here, that the proceedings did not derive their authority from the general powers of tlie Court, and that, therefore, it should be shown affirmatively that all the requisites of the statute had been strictly observed and complied with, in order to confer jurisdiction, and impart validity to the orders passed in reference to the sale. But the Court, in disposing of the objection, say: “ These proceedings were brought before the Court below collaterally, and are by no means subject to all the exceptions which might be taken on a direct appeal. They may well be considered judicial proceedings; they were commenced in a Court of justice, carried on under the supervising power of the Court, and did receive its final ratification. The general and well settled rule of law in such cases is, that when the proceedings are collaterally drawn in question, and it qppears upon the face of them, that the subject matter was within the jurisdiction of the Court, they are voidable only. The errors and irregularities, if any exist, are to be corrected by some direct proceeding, either before the same, or an appellate Court. If there is a total want of jurisdiction, the proceedings are void, and a mere nullity, and confer no right, and afford no justification, and may be rejected when collaterally drawn in question.” And many cases could be cited to sustain the doctrine thus announced.

(Decided 14th February, 1868.)

In support of the position assumed by the appellee, the case of McCabe, et al. vs. Ward, 18 Md. Rep., 505, has been cited, and pressed upon us with great earnestness, as being entirely conclusive of the question raised by the exception. And in that case, we admit, there are expressions employed by the learned Judge who delivered the opinion, that might be supposed to embrace and decide the question now involved. But that was a decision made on appeal from an order ratifying the sale, and overruling exceptions taken to it, in the direct proceeding; and, therefore, unlike the case under consideration, where the question of the legality of the proceedings is brought collaterally before the Court. That decision, however, as an authority, can only be relied on as settling the question of the irregularity of the sale made and excepted to in that case. The broad language used in disposing of the question really before tlm Court, must be restricted to that; and, being so restricted, the case is inapplicable to the question considered in this opinion. This Court being of opinion that the Court below committed error in rejecting the record offered, the judgment appealed from must be reversed, and procedendo awarded.

Judgment reversed and procedendo awarded.