Owen v. Hawkins , 60 Tenn. 190 ( 1873 )

Nicholson, Cli. J.,

delivered the opinion of the Court.

A number of bills were filed by the creditors of Owen, seeking to have his lands sold to satisfy their debts. He consented that a decree might be entered for the sale of one tract for cash, free from the equity of redemption, and that the other tract, being his home place, might be sold, reserving the right of re■demption. This agreement was made with the solicitor of one of the complainants, and was assented to by all the other creditors. The solicitor drew the decree, and had it entered, ordering the sale of both tracts, free from the right of redemption — showing on its face that it was a decree by consent. The decree was so written and entered,- by an unintentional mistake or oversight of the solicitor; and as Owen confided in the solicitor, he left, and knew nothing of the mistake until after the court adjourned. Before the land was sold, however, he found' out that the decree ordered the sale of both tracts free, from redemption. When the land wras sold, he notified Hawkins, the purchaser, of the mistake in the decree, and of his purpose to claim the right to redeem. Notwithstanding this notice, Hawkins purchased the land; and afterwards the sale -was reported to court, and confirmed' without exception. Owen took no steps, either before the sale or at its confirmation, to have the error corrected; but after a writ of possession was issued, filed this bill, stating the facts as herein set forth, to have the decree of sale as to one of the tracts modified, so as to secure to him the right of redemption.

If it were conceded that the unintentional error of the- solicitor of one of the creditors constituted a sufficient ground for attacking and modifying the decree, yet complainant, by his laches in applying for relief before the sale, and then after the sale and before confirmation, waived and lost his right to relief.

The Chancellor dismissed the bill on demurrer, and we affirm his decree, with costs.