Stewart v. Love ( 1879 )

Cooper, J.,

delivered the opinion of the court.

This bill was filed to enforce an alleged lien for the purchase money reserved by parol on a horse sold by the complainant’s intestate to the defendant. The chancellor rendered a decree in favor of complainant for the purchase money, declaring a lien on the horse for the debt, and ordering a sale of the horse in satisfaction thereof. The defendant prayed an appeal to this court, which was granted upon his giving bond,, or taking the oath prescribed for poor persons, within a limited time, and he has since perfected the appeal by taking the oath. After the prayer of appeal, but before appeal perfected, the complainant moved the-chancellor to- order a sale of the horse, upon the ground that the lien was established by the proof and decree, that the horse was over fourteen years of age, that to place the horse in the hands of a receiver-would be attended with an expense equal to his value,, and that the horse would probably be lost pending the appeal. The chancellor refused the motion. The motion is now renewed in this court upon substantially the same ground, with the additional fact that the appeal is under the pauper oath. If the motion be considered as in substance a motion to revise the-chancellor’s action in the same matter, it could not be entertained for the reason given in Scoggins v. Cowden, 1 Lea, 134. Treated as an original motion, it is precisely as if it had been made in the court below before decree, the decree being vacated by the appeal, with the additional difficulty that the jurisdiction of this court is “appellate only.” The property is and has been in the possession of the defendant, not of the court, and to have ordered a sale before decree would have been to have decided the case before the hearing. We do not understand that any such right exists in the court. Cornell v. McCam, 37 Md., 89. When the property is in the custody of the court, the court is compelled to act for both parties, not at the instance and for the benefit of one party only, and may, in extreme cases, where it is satisfied that a sale must eventually be made, order such sale in advance. Gleaves v. Ferguson, 2 Tenn. Leg. Rep., 25. But where the property is held by one of the parties, not by the court, and the other litigant applies for an order of sale because he thinks the sale would be to his interest, we are not aware of' any principle on which the application can be sustained. • And to ask an appellate court to determine the merits of a. litiga-tiou for this purpose in advance of the final hearing is certainly without a precedent.

The motion must be disallowed.