Lee v. Davis

Jun 15, 1849
Reporters:
Before:
Collier
COLLIER, C. J.

1. Thе judgment of the County-Court recites that the petition, answers and affidavits of the respective parties were in file and submitted, and that upon an inspection and consideration of these, the rule to set aside the sale under the fieri facias in favor of the Branch Bank at Mobile was discharged. In analogy to summary proceedings *521against sheriffs and other officers, and motions at the suit of a bank, we are inclined to think the recital is sufficient to au-thorise us to look into the entire transcript before us. If the affidavits were not made a part of the record, by being used in the court below, and its judgment rested on them, should they not have been there stricken from the files, and must not this court accord vеrity to the certificate of the clerk? Humphrey v. Thompson, 6 Ala. Rep. 649; Moore v. Briggs, 14 Ala. Rep. 700. The petition, answer of Davis, and affidavits to which he refers, are unquestionably matters of record, and these alone we think will well sustain the view we lake of the cаse.

2. It is clear that the plaintiff iri error and those who were interested in supporting his title, as well as their legal advisers, were not aware that the sale was made under the execution in favor of the Bank, or if it was, that the judgment on which that execution issued was rendered previous to the making of the deed of trust by Hopkins for the benefit of his creditors. Upon this assumption we will inquire whether the purchase by Davis should be set aside?

In the Mobile Cotton Press, &c. v. Moore & Magee, 9 Port. Rep. 679, a rule was addressed to the shеriff ‍‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​‌‌‌‌​​​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌​‍and the purchaser under a fieri facias requiring them to show cause why the sale should not be set aside. We said, “it is well setlled at common law, that courts of judicature possess a controlling power over the acts of their officers, which it is their duty to exercise in advancement of justice. Thus, if a sheriff is guilty of an irregularity in his proceedings upon an execution to the prejudice of either part]?, or a third person, the court will either set aside or corrеct the act complained of.” Under the influence of this principle, it has been held, that if any fraud has been practised on the purchaser, or there was a mistake in the^ description of land sold under a fi.fa., application may be made to the court to which the writ was returnable, to set aside the sale. — Friedly v. Scheetz, 1 Serg. & R. Rep. 162. And in Jackson v. Roberts, 7 Wend. Rep. 88, the court say, “ a party who may be injured by the mistakes of a sheriff can have relief by a summary application to the court under whose authority the officer acts, or through the medium of a court of equity; and it is much better that he should be confined to these modes of redress than to render all titles derived from *522judicial sales doubtful, and subject tо be defeated, by allowing’ the written instrument by which they are evidenced to be attacked collaterally by parol evidence.” Inadequacy of price may not be sufficient cause for setting aside a sale of lаnd under execution, but when coupled with other circumstances it has induced the courts to avoid the purchase. — Arnott v. Copper & Nichols, 1 Har. & Johns. Rep. 471; Nesbit v. Dallam, 7 G. & Johns. Rep. 512; Stockton v. Owings, Litt. Sel. Cases, 256; Hansford v. Barbour, 3 Marsh. Rep. 515; Hart v. Bleight, 3 Monroe’s Rep. 273. See further as to frauds and irregularities, and the effect of them in inducing a court summarily to vacate a sale under execution. ‍‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​‌‌‌‌​​​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌​‍Carlile v. Carlile, 7 J. J. Marsh. Rep. 625 ; Bleight’s heirs v. Tobin, 7 Monr. Rep. 617; Knight v. Applegate’s heirs, 3 Monr. Rep. 388; Mills v. Rogers, 2 Litt. Rep. 217; Ryerson v. Nicholson, 2 Yeаtes’ Rep. 516; Ontario Bank v. Lansing, 2 Wend. Rep. 260; Groff v. Jones, 6 Wend. 522; Saul v. Dawson, 3 Wils. Rep. 49; Hubbert v. McCollum, 6 Ala. Rep. 221. In the case cited from 9th Porter, we made these deductions from the authorities: “1, A party injured by an improper execution of a fieri facias may obtain redress on motion to the court from which the writ issued: 2. That а sale of land will be set aside where the sheriff is guilty of a mistake, irregularity or fraud, to the prejudice of either party, or a third person: 3. So the misrepresentation or fraud of a purchaser furnishes just ground for invalidating the sale.” In Howell’s heirs v. McCreeny’s heirs, 7 Dana, 388, which was a suit in chancery, it was said that “ a purchase by an attorney under his client’s execution, over which he had control, predisposes a chancellor to look on the transaction with jеalousy and scrutiny, and should never be sustained when it was for a grossly inadequate price, and exhibits a semblance of unfairness.” In Hall v. Hallet, 1 Cox, 134, Lord Thurlow said, “ no attorney can be permitted to buy in things in a course of litigation, of which litigаtion he has the management. This the policy of justice will not endure. And although we would not go so far as to inderdiet all such purchases, we do not doubt the public policy and the analogies of the law require that they should be considered pefjj-se, as in the twilight between legal fraud and fairness, and should be deemed fraudulent or in trust for the debtor *523upon slight additional facts.” In the same case, it was held, that “ an undefined interest in an entire tract, said to have been incumbered by conflicting claims unexplained, and curtailed by sales unspecified and wnlmown, was sold by the shеriff, and thus it was impossible to make a fair sale for a full price.” “Under such circumstances, the sale as made should be deemed unreasonable and unfair.” ‍‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​‌‌‌‌​​​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌​‍To the same effect is Howell v. Baker, 4 Johnson’s Ch. Rep. 118. These cаses it must be observed were suits in chancery, yet they serve to - show that the law requires uberrima fides on the part of those who have any immediate and direct agency in ihe management of sales under judicial process. And accоrding to our practice, we have seen that the court, to which such process is returnable, will administer justice to a party who is aggrieved by the mistake, irregularity, or fraud of the officer, upon broad and equitable princiрles of right. Our own decisions, as well as several of those cited, show that it was the duty of the sheriff to have disabused the plaintiff’ and his advisers, by stating that he was selling under the execution at the suit of the Bank, or under process issued on a judgment rendered previous to the date of the deed of trust by Hopkins. It is fair to1 presume that the execution was indorsed as usual and imparted such information, and the misapprehension of the plaintiff and others was abundantly obvious. The neglect of the sheriff in this respect, if not in itself a sufficient ground for setting aside tire rule, when coupled with the inadequacy of price and the other circumstances, furnishes such evidence of mistake or omission of duty as requires it to be vacated.

3, The proceeding by petition and notice, as in the case at bar, is but a substitute for the audila querela of the common law, and in such case the law is well settled, that not only a party to the judgment and executiоn, but any one whose land has been sold to satisfy it, may invoke that remedy. — Waddington, et al. v. Vradenbergb, 2 Johns. Cases, 227; Wood v. Torrey, 6 Wend. Rep. 562, See also Lovejoy v. Webber, 10 Mass. Rep. 101. In respet to the cases cited from. 6 Port, and 4 and 9 Ala., it may be enough to say whhout a special notiсe of them, they do not lay down a different doctrine, but are applicable to a state of facts and to a cause of proceeding altogether dissimilar. The ground upon which the courts’ *524interfere summarily in cases of this kind, is to prevent an abuse of its process, but it will not under‘the pretence of effecting this object determine upon the validity of titles. — In Nuchols v. Mahone, 15, Ala. Rep. 212, it was held, the court will not interfere by motion and set aside a sale of land made under execution, merely because the title of the defendant in execution was invalid; the party interested must defend the possession in the ordinary mode when the purchaser asserts his right. The objectiоn in that case was, that th & fieri facias issued after the death of the plaintiff therein. We said, “ this is a sufficient ground for quashing it at the instance of a party or privy; but if the plaintiff stands ‍‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​‌‌‌‌​​​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌​‍in a situation which entitles him to submit a motion for that purpose, the invalidity of thе execution does not warrant the court in setting aside the sale against a bona fide, purchaser without notice. Besides the latent defect in the fi. fa. cannot be regarded as an abuse of the authority of the sheriff, or in any manner enter into its execution, where the officer has merely followed its mandate. If the land, which v\ms sold, was really the property of the plaintiff in the motion, he may make his title appeal1, and defend his possession when the purchaser asserts his right; but we have seen the conflicting title will not be determined upon the application to set aside the sale. See Chambers v. Stone & Pope, 9 Ala. Rep. 260; Stewart v. Nuchols, 15 Ala. Rep. 225. It was supposed by the counsel for the defendants in error, that Nuchols v. Mahone was conclusive to show that the motion of the plaintiff should not be granted, but he should litigate his title when sued by the purchaser at the sheriff’s sale to recover the possession. This argument cannot be supported. The cases are altogether dissimilar — in the former it was concеded that there was no abuse of the process, or irregularity on the part of the sheriff in its execution, but the defect being in the process itself, to be shown by extrinsic proof, and such as rendered it void ah initio, the party injured could vindicate his possession on a trial before a jury. In the present case, the objection is alone to the execution of the process, and the irregularity is such as cannot avail on the trial of an ejectment оr trespass to try title; consequently, according to previous decisions of this court, it is competent to set aside the sale op motion.

*5254. The decision of the Circuit Court of Perry upon the facts presented in the record before us was coram non judice, and consequently the queslion here raised is not res adjudicóla. Nor can the fact, that the execution was not returned, interpose an obstacle to the exercise of jurisdiction by the County Court of Mobile. It was not essential to the title of the purchaser that thе execution should have been returned according to its mandate. The rights of the plaintiff would be affected quite as injuriously, whether it was retained by the sheriff or deposited elsewhere. If application was made to thе Circuit Court of Perry, it would be not only competent, but proper for that court to direct its transmission to the proper depository. As there was no controversy in respect to the execution, and the fact of the sale, it was clearly allowable for the County Court to have adjudicated the question submitted for its decision, although the execution was not produced; and we cannot perceive why the institution of the irregular procеeding at the instance of the plaintiff in the Circuit Court of Perry should place him in a position more unfavorable to relief. The validity of the deed of Hopkins, in the aspect in which the point is attempted to be raised, cаnnot impair the title of the plaintiff to the land in question. If the vendors of the plaintiff acquired the land by purchase under executions against Hopkins, then the deed must be placed out of view ; or if they purchased at a salе made by the trustee before the deed was declared void for fraud, in the absence of mala fides, if the trustee pursued the authority given him, they would hold the land ‍‌​​‌‌​‌​‌​​‌‌​‌‌​‌‌​‌‌‌‌​​​‌‌​​‌‌​​​‌​‌​‌‌​‌‌‌‌​‍against all persons who did not claim under pre-ex-isting liens.

We waive the considеration of the question, whether it was irregular to have sold the land en masse instead of by its legal subdivisions. Several of the citations we have made lay down the law very explicitly on this point. In nothing that we have said, do we desire to be understood as attributing intentional unfairness or fraud to any of the parties to this proceeding. There is nothing in the record to require such an imputation ; but it is upon the legal interpretation of acts and omissions that we think the sale should be set aside.

We have only to add that the judgment of the County Court is reversed, and the cause remanded.