Dial v. Gambrel

| Ala. | Nov 15, 1899

TYSON, J.

The decree rendered by this court on the '29th day of October, 1898, reforming the mortgage held by complainant so as to correctly describe the land conveyed by it and ordering its foreclosure as reformed, and further, adjudging that complainant has a lien upon the land and condemning it to be sold for the satisfaction of (he debt secured by the mortgage was a final decree. 'The term of (die court having passed at which that decree was rendered, this court, upon application to it, Mould be without power to alter, vary or annul it except for the mere correction of clerical errors or omissions or lbr brand. — 3 Brick. Dig. 32, § T9. The decree being final and conclusive, the solemn adjudication that the lands described in it were the property of the mortgagor can never afterwards be contradicted or otherwise impeached or impaired by any party to the cause except for fraud. Nor can a purchaser at the foreclosure sale of the land be heard to say that they ivere not the prop'mty of the mortgagor, but Mrere his own.

The petition filed by the complainant, nrho by his bill invoked and procured this decree, seeks to set aside the sale at whi'h be became the purchaser of the land. By this petition be proceeds, by its averments, to deny that the land was the property of the mortgagor, and seeks to have the sale and purchase'by him-set aside solely upon the ground Unit the lands condemned and vdiich he bought -were in fact bis own. He alleges no fraud, but predícales bis right to impeach the solemn recitals of the decree upon his ignorance of land numbers. If the averments of his petition be true, be has made, the unfortunate mistake of having taken a mortgage upon his own land and this is not all, he lias procured the court to decree a lien upon his 'own land as being the land of the mortgagor and to sell it as the land of bis mortgagor. And yet, we are not at the end of the chapter. He purchases this same land at the foreclosure sale and also a portion of bis own lands under an execution issued out of this court for the costs adjudged against his mortgagor, -who was the appellee hi the cause in which the decree was rendered by this court in his favor. It is almost inconceivable lio\v «0 many mistakes could have been made by Lim. But they seem to Lave been made. But whether made or not, lie cannot be permitted to attack the ecnclnsiveness of the decree in the mode here attempted. The chancellor did not err in dismissing his petition.

Affirmed.