Williams v. Kibler , 9 S.C. 263 ( 1878 )

The opinion of the Court was delivered by

Willard, C. J.

The defendant Kibler foreclosed a mortgage made by J. D. Mcllwaine, making Mcllwaine a party, and obtained a decree of foreclosure, under which a tract of land, including that claimed by the plaintiff, is alleged by the report of sale to have been sold. The sale was confirmed. Now the plaintiff, as the assignee in bankruptcy of Mcllwaine, brings suit to falsify and set aside the report of sale and order of confirmation, alleging that in fact twenty acres of said tract were reserved on such sale to the mortgagor, Mcllwaine, as a homestead, under military orders, which he claims as assignee of Mcllwaine, and asking that the sale be set aside.

The Circuit Court decreed accordingly. The decree is clearly erroneous. If the sale ivas improperly reported and confirmed, the plaintiff, as the assignee of Mcllwaine, bound by the order of confirmation, should have intervened in the foreclosure suit and sought to set that order aside. We cannot in an independent action question the order of confirmation, which can be attacked only in a direct proceeding and not collaterally. It is an estoppel that cannot be overcome in this action.

The judgment must be set aside and the complaint dismissed.

An appeal was also taken from an order made for the purpose of carrying into effect the judgment first set aside. It follows that such order must be vacated with the judgment on which it AVas based.

McIver, A. J., and Haskell, A. J., concurred.