26 N.J. Eq. 531 | N.J. | 1875
The opinion of the court was delivered by
This was an application by purchasers at a foreclosure sale, to be relieved from the bid made by them.
The power of the court, thus invoked, is one which should, on all proper occasions, be liberally exercised. It has sometimes been said, that the court has rather a greater power over these contracts, which are made with itself, than over any other class. And the cases are numerous in which the buyer has been absolved from the obligation of his bargain, on the plea that he had been misled by mistake, or entrapped by fraud. Mr. Sugden says, that “the authority which the court has over these contracts enables it, in a proper case, to relieve the purchaser as well as the suitor.” The question, therefore, is, whether the petitioner in the present case has shown that it would be inequitable to compel him to complete his purchase.
The objection he makes is this, that the title to the premises tendered to him under the decree of foreclosure, is imperfect. The flaw pointed out is, that one of the persons having an interest in the estate which was sold, although made a
The defendant thus referred to was the widow of the •deceased owner of the equity of redemption. She was a nonresident of the state, and an order for publication in the usual form was accordingly made. This order was directed by the Chancellor to be published in “ The Long Branch Times, a newspaper printed at Long Branch, in this state.” The affidavit of publication showed that this order was in all respects complied with, excepting that, instead of being published in .a newspaper called “ The Long Branch Times,” it was published in one entitled “ The Long Branch Hews,” the latter being the only paper, at the date of the order, or afterwards, published at Long Branch. This absent defendant failing to appear, and the Chancellor, deeming the designation in the order, of the newspaper by its name a mere misnomer, and that the order of publication had been substantially complied with, signed a decree pro oonfesso. A ilnal decree for sale followed, in due order, and the purchaser at such sale now raises up the objection, above stated, that as the publication of notice to the absent defendant was not published in literal conformity to the order of the court, such absent defendant is not hound by the decree, and, consequently, the title to the premises now offered to him is imperfect.
I am at a loss to perceive upon what legal principle it is, that it can be claimed that this petitioner can be heard on the ground thus assigned. He is not a party to this suit, and his •only standing, on this motion, is his right to protect himself. He can complain of no part of the procedure, unless, potentially, it can result in an injury to his own rights. His fear now is, that the Chancellor erred in deciding that the publica - éion against this absent defendant had been legally made» What if such fear is well founded ? Can it be even plausibly pretended, that such error can affect the title to the land decreed to he sold ? I am not willing to have it thought for a moment, that an error of this nature, even if it existed, would ho attended with such a result. The existence of a doubt
The statute (Nix. Nig. 109, sec. 22) provides that, in case of a non-resident defendant, an order shall be made by the Chancellor, notifying such defendant to appear within a certain time. It also further directs that such order shall be served personally on such defendant, or be published in one or more of the newspapers printed in this state, and designated in such order. The act then proceeds in these words : “ And in case such absent defendant shall not appear, Ac., and on proof of personal service, or of the publication of such order or orders as aforesaid, and of the performance of the directions contained in the said order or orders, to the satisfaction of the Chancellor, the Chancellor may order and direct that the complainant’s bill be taken as confessed against such absent defendant,” Ac.
It thus appears that, by the express authority of the statute, the Chancellor, in the orderly progress of the cause before him, is to decide upon this fact of dire publication, whereby the absent defendant is made a party to the suit. Such a decision is an adjudication, by a court of general jurisdiction, in a regular course of law, regarding a subject over which such court has unquestionable cognizance. Unless such a judgment is final, until reversed in a direct proceeding for that purpose, I know of none that can be safely said to be possessed of that quality. Such a judicial act may be voidable, but it is not void. If even admittedly erroneous, such error cannot be set up in a collateral proceeding against the decree founded upon it. This I regard as the ancient and well settled rule of law, a rule which is absolutely necessary to impart to judicial
In Rex v. Carlile, 2 B. & Adolph. 362, the defendant, having been convicted of a libel, brought a writ of error, and assigned for error in fact, that there was but one of the justices named in the commission present when the jury gave their verdict. But this was held inadmissible, as it contradicted the statement of the record in that particular, Lord Tenterdon saying: - “ The authorities are clear, that a party cannot be received to aver as error in fact, a matter contrary to the record.” The opinion from which this citation is taken contains a reference to many of the English decisions on this subject, which it is impossible to turn to without becoming convinced how completely the principle in question has been regarded as a legal axiom from the earliest judicial annals.
And, perhaps, in no class of cases is the precise point now under consideration, more clearly marked and explained than in those which deal with the distinction, with respect to the conclusive efficacy of the record, that exists between a domestic and a foreign judgment. Touching judgments of the latter class the question has often arisen, whether a want of jurisdiction in the foreign tribunal can beset up as a matter of fact-in spite of the contradictory averment of the record. The very point now* raised has, in some of these cases, been agitated ; that is, the right of a party, against whom the judgment has gone in the foreign court, to prove that he was not legally made a party to the action. These adjudications are important on this inquiry, as all their arguments proceed on the admitted premise, that such proof could not be received with. respect to domestic judgments, the effort being to reduce the decisions of foreign courts to a lower grade of authority. An examination of the following eases will show that the point now* in question is conceded in all of them, and it will be perceived that some of these authorities are taken from the English, and others from the American reports. Bowles v. Orr, 1 Y. & Coll. Ex. 464.
And upon the general doctrine, that the final judgment of a court of general jurisdiction cannot be called in question, in a collateral proceeding, the leading American cases take strong ground in favor of the rule. Such was the view* expressed by the Supreme Court of Massachusetts, in the case of Cook v. Darling, 18 Pickering 193, in which a plea to an action of debt on a judgment of a county court, .that the defendant was not an inhabitant of the state at the time when the action w*as brought, had no notice of its inception, and did not appear, was declared to be bad on demurrer. This case is directly pertinent, on the question now
And in the Supreme Court of our own state, in the case of Vandyke v. Bastedo, 3 Green 224, this doctrine, in its broad.est form, was recognized; and the entire reasoning of the court, in Moulin v. The Insurance Co., 4 Zab. 223, proceeds-upon the assumption that such doctrine is undeniable law.
The legal rule, then, is this: that the decision of a domestic court of general jurisdiction, acting within the scope.of' its powers, has inherent in it such conclusive force, that it can not be challenged collaterally, and that such decision definitively binds all parties embraced in it, unless, on objection-made to such court itself, or in a direct course of appellate-procedure. The result of this doctrine obviously is, that the-present petitioners have nothing to apprehend from any supposed error in the publication of the notice to the absent defendant, as such absent defendant cannot set up such defect against the title offered under this decree.
I have preferred to put the question here raised, upon this-broad ground, as it seemed to me that it should be understood that titles by force of foreclosure decrees, are not open, to objections of the general character of the one here interposed. But if this principle had not, as I think, ruled the-
T shall vote to affirm the order appealed from, with costs.
Order unanimously affirmed.