39 Ky. 526 | Ky. Ct. App. | 1839
Lead Opinion
delivered the Opinion of the Court.
These writs of error are prosecuted by the infant heirs of Polly McKee, to reverse the proceedings and decrees by which two tracts of land descended to them, were sold and conveyed — the one to Hann, and the other to McKee, through Letcher, who transferred the benefit of the purchase to him. The writs of error having been amended, on motion, so as to make the infant heirs sole plaintiffs in both writs, and in the first, to make the devisee of the purchaser of the first tract, and the commissioner who was appointed to collect, and who still holds, the purchase money, defendants, as survivors of Darius McKee, the father of the infants, by whom, as their natural guardian, the petition was filed; and the second writ being amended so as to make defendants the first purchaser, and his transferee—the former being the person upon whose petition, as guardian of the infants, the second tract was sold, and who has only given bond for the purchase money—it seems to us, that all substantial grounds for quashing the writs of error on account of the confusion of defect of parties, have been entirely obviated.
If a writ of error be at all allowable for the reversal of proceedings of this character, where there are no parties to,the petition except the guardian for the infants, or the infants by their guardian or friend, it cannot be required that such writs should be tested by precisely the same rules as are applied in other cases. Both the writs appear to have made all the persons shown by the record to be substantially interested in the proceeding, parties.—Darius McKee was not formally a party to the first petition, which was, in the- names of the infants, by him, as
The infancy of the plaintiffs in the writs is a sufficient answer to the plea of the statute of limitations. To say that their guardian, or other person by whom the proceeding was instituted in their names, or for them, must be a plaintiff with them, in the writ of error for its reversal, would be contradicting the principal on which they are allowed to maintain the writ; and would often deprive them of the chief benefit of that right. And especially, if their right is subject to be barred in three years, because the officious friend, who may have ruined their fortunes, is an adult. The replication of the continued infancy of the plaintiffs being sufficient, and undenied, removes the bar set up in the plea; and moreover, the plea itself, to be good, after the change in the form of the writ, should have shown that the plaintiffs had arrived at full age, and were since barred by lapse of time; which it does not show.
These preliminary questions being disposed of, we go on to state the proceedings, as presented by the record.
On the 27th of March, 1828, Darius McKee swore to and filed in the Garrard Circuit Court, a petition in the name of William and Jane McKee, by him as “their next friend, father and natural guardian, ” stating that a tract of land, which is designated, had descended to them from their deceased mother, in which their father had a life estate by the curtesy; that they have no other estate but said remainder; which it would be for their advantage
Commissioners were immediately appointed to value the interest of the infants in the tract of land referred to in the petition : who reported, in September, 1828, that so much of said tract as lay south of the Danville road, was involved in a suit brought by Buford’s heirs, and they thought it would be inexpedient to sell that portion of it at that time; but that so much of the tract as lay on the north side of the road, supposed to be about 150 acres, was unincumbered by adverse claim, and might be conveniently sold, and they estimate the interest of the infants in the same at five dollars per acre. They further say that, they know of no other estate of said infants.
At the September term, 1828, Jesse Yantis was appointed to sell the land upon the north side of the road; at one, two and three years credit—taking bonds with security, payable to himself, and giving a certificate of purchase to the purchaser, &c. And, at the March term, 1829; he reported a sale to John Hann, for one thousand and ninety four dollars and nineteen cents, and returned into Court the three bonds for the purchase money. The report was approved, and the bonds directed to be filed, subject to the future order of the court; which was done.
At the September term, Hugh W. McKee was appointed Commissioner to collect and receive the purchase money from Hann, with leave to take out the bonds, on leaving copies—the commissioner, Jennings, being directed to assign the bonds for the purchase money to said Hugh W. McKee, the guardian, as he is called, of said infant heirs. But he was not authorized to act under the decree, until he should execute bond, with a named security, to the infants, conditioned that he would use ordinary diligence in collecting the money, and that when collected, he will use and apply it for the use of the infants, in the same manner and to the same extent that guardians appointed by County Courts are authorized to use and apply the money of their wards; and that he would, when required, report to the Court his actions under the decrees.
Shortly after this decree, in October, 1829, H. W. McKee executed a bond in the clerk’s office with the designated security, conditioned that he will collect, use and apply the money according to the terms of the decree, and that he will “in all respects discharge the duties of his appointment, and agreeably to the decree herein.”
The record proceeds to state that, on the 26th day of June, 1830, Hugh W. McKee, the guardian for the heirs of Darius and Polly McKee, came and swore to and filed an amended petition herein, whereupon commissioners were appointed. This amended petition is in the names of William and Jane McKee, by Hugh W. McKee, their guardian and nearest friend, and states that, in addition to the land mentioned in their original petition, to which this is intended as a supplement, their mother had two other tracts in different counties, which, for reasons given they wish to be sold. Of these tracts, one was valued at six and one fourth cents, and the other at one dollar, per acre; but the record contains no further proceeding as to them, after the commissioner’s report.
The record, however, states that, on the 22d day of September, 1830, “came the complainant, and filed an amended petition herein,” whereupon commissioners, the same who were appointed by the first order on the original petition, were appointed to value the land in the amended petition mentioned.
This second amendment commences as the last does, in the names of the infants, by H. W. McKee, their guardian and friend, and expressly, by way of supplement to their original petition, states that the suit of Buford’s heirs, adverted to in the commissioner’s report, had terminated in favor of the petitioners; that the land designated by the commissioners as covered thereby, was free from incumbrance except the curtesy of their father, Darius McKee, which is now owned by Hugh W. McKee, and they think a sale of said land would redound to their interest. They, therefore pray that this may be taken as a part of their original and amended petition, which they reassert, and pray for a sale, &c. They also add that, since filing their original petition, Hugh W. McKee has been regularly appointed their guardian by
In September, 1830, the commissioners appointed under the last amended petition, reported that the value of the land lying on the south side of the road, that is, of the remainder coming to the infant heirs of Darius McKee, after the death of said Darius, was five dollars per acre.
At the March term, 1831, a decree was made directing a sale of the interest of the infant petitioners in the land south of the Danville road, on a credit of one, two and three years, with interest from the date, the purchaser giving bond with security, and Jesse Yantes was appointed commissioner to sell, and directed to give the purchaser a certificate, stating that the title would be conveyed when the purchase money should be paid.
On the 22d day of June, 1832, the commissioner reported that on the 2d day of May, 1831, he had sold the land at public auction, &c. and R. P. Letcher became the purchaser, at the price of eight dollars and eight cents per acre; there being three hundred and fifteen acres, which makes the sum of $2537 12; and that “the purchaser, after the sale, transferred said land, by written agreement, to Hugh W. McKee, Who is the guardian of said William and Jane McKee, and who refused to execute bond for the purchase money,” which transfer is referred to and returned with the report.
That instrument, which is dated on the 24th day of’ September, 1831, after reciting the decree and sale, and the purchase by Letcher, proceeds thus: “ And whereas, Hugh W. McKee, the guardian of said infant heirs, and the proprietor of the life estate of said Darius McKee, in said land, being disposed to take and receive the purchase of the said Letcher,” they mutually agree, &c. &c. When this report was returned into Court, does not appear. It is first noticed in a decree made on the 20th of March, 1833; which states, that it appears from the report, that the land was sold, and purchased by Letcher, and that he
In compliance with this decree, a bond was forthwith executed, conditioned to pay over $2537 12, with legal interest, to the persons designated in the deeree, and on the next day, this bond is recognized by the Court, and a decree rendered, appointing a commissioner to convey the land lying on the south side of the road, to McKee, with general warranty. On the following day, (22d of March, 1833,) a deed from the commissioner to H. W. McKee, was presented to and approved by the Court; which went on to decree and order, that all the right, title and interest of William and Jane McKee, pass and vest in said Hugh McKee.
This is the end of the proceeding so far as it relates to the sale of the land on the south side of the road. But it may be here stated, in regard to the other part of the tract, which was first sold, that, on the 21st day of March, 1835, John Hann, the purchaser at the first sale, came into Court, and it appearing that he had paid up all the purchase money, a commissioner was appointed to convey to him, the land on the north side of the road, with general warranty. But the said John Hann having died before the conveyance was made, and having devised the land to his wife, Jane Hann, who is a defendant to the first writ of error, the commissioner was afterwards directed to convey to. her, which was done, and the deed approved in September, 1836,
Objections are taken to the competency of Darius McKee, as father and natural guardian, to institute this proceeding, and also to the competency of H. W. McKee, who filed the supplemental petition, under which the last gale, was made, and to the want of affidavit to that petition; and also, to the terms of the order appointing commissioners to value the infant’s estate, in each case, to the omission to take bond from the guardian before the sale was ordered, in each case; to the nature of the condition of each of the bonds afterwards taken; to the ratification of the transfer from Letcher to McKee, and the confirmation of the purchase, to the latter, &c. &c. And we have been urged, on these and other grounds, not only to reverse the proceedings, but. to declare them void, and to direct a restoration of the land to the infants., and of the money to the purchasers; and also, an account pf rents and profits.
We are not aware, however, of any precedent or principle which would authorize a tribunal having merely appellate jurisdiction, upon a reversal of a decree, even if it be void, to direct, in the first instance, and without any proceeding instituted in the court of original jurisdiction, a restoration of property which may have changed hand? under the reversed decree. There is enough of anomaly in taking jurisdiction by writ of error, to reverse a proceeding which has such slight claims to, the character of being judicial. And, although we are of opinion, that such a proceeding should not, after a sale has been made, and carried into complete effect, be reversed, unless there be some defect or irregularity which would be apparently sufficient to avoid the sale itself—we do not feel at liberty to go on and regulate in detail the ultimate consequences of such a reversal.
We shall notice first, the objections which apply to, the first sale. The most fundamental of these is, that Dari
That the father is to some purposes the guardian of his infant child, is not contested. But, it is argued that he is only the natural guardian; that, in that character, he has the care of the infant’s person only, and not of his land; and that, as no other statute refers to the father in his character as guardian, or gives him that appellation, this statute which confers extraordinary power upon ‘the guardian,’ should not be understood, as refering to the
As to the character and power of the father, as guardian, it is laid down in Blackstone’s Commentaries (Christian’s Blackstone, vol. 1, page 453,) that, “a father has no other power over a son’s estate, than as his trustee ex-guardian for though he may receive the profits during the child’s minority, yet he must account for them when he comes of age. ” And again, in page 461, the same author says: “For if an estate be left to an infant, the father is, by common law, the guardian, and must account to the child for the profits.”
It may he added that, in case of lands descending to an infant, if is in general necessary that there should be some one having the right and power over it which generally belongs to a guardian; that, if there be no guardian appointed by public or other authority, and until there be one, the father, if he be living and capable, is indicated by nature and reason, and by the common law too, as the proper person to exercise the power which should be exercised by some one. And that as the ordinary tribunals having jurisdiction of the subject had no right, at the passage of the statute, and at the date of these proceedings, (as was decided in Poston vs Young, 7 J. J. Marsh. 501,) to appoint a guardian for an infant during the life of his father, it would seem to follow that the father, being from necessity, invested with the general character and powers of a guardian, as to the real estate of his infant child, and being recognized in law by the name of guardian, should be understood, as being embraced under that denomination in this statute-unless it appears that the power conferred, is not intended to be exercised in a case in which the father would be the guardian.
The statute expressly Authorizes the estate descended to infants to be sold by this proceeding, whether it be in remainder or reversion. Its declared policy extends to all infants to-whom land has descended, without excepting those whose father may be living. It may be as advantageous
The next objection to be noticed, is that the order appointing the commissioners to value the estate of the infants, does not direct the valuation of any thing but the land mentioned in the petition, when the statute requires the valuation of the whole estate, real and personal. To this it may be answered, that the petition sworn to by the guardian, states that the infants had no estate except the land therein mentioned, and the commissioners report the same thing. And as the fact, that there was other estate, consisting of lands, does not appear in any part of the record to which the purchaser at the first sale can be considered as a party, he having been brought into the case by the first amended petition filed by H. W. McKee, after the first sale was confirmed, it should not be considered, in the revision of that part of the proceeding. We may observe, however, that, as there is no ground for presuming, in opposition to the statement of the petition, that the infants had any personal estate, the defect in the order may be considered as merely formal. And the ap
The third objection is to the failure to take a bond from the guardian before the sale was ordered and made. And this failure, it is contended, is such a departure from the requisitions of the statute, as to render the sale void, though a proper bond should be taken immediately afterwards, securing every object that could be effected by having taken it before. But this cannot be conceded. The statute, it is true, requires that the bond shall be executed before any order of sale shall be made, and this requisition ought to be pursued. But when it must be conceded that this requisition has no other conceivable object, but to secure the proper custody and application of the proceeds of the sale, it is obvious that a bond executed immediately afterwards, may have the same effect. And the Court having obtained full jurisdiction by the petition, presented in a proper case, and by a proper person, the innocent purchaser must be permitted to repose some confidence in that part of the proceeding which takes place under the direction and supervision of the judicial tribunals of the country, if the objects and requisitions of the statute be substantially complied with, To determine that there must be a strict and literal compliance with every requisition of the statute, and that, for a failure in the slightest particular, the sale may be avoided at any time until the infant shall be barred after he arrives at full age, from asserting his right to the land by action, would either virtually repeal the statute by reason of the improbability of making a valid sale, or would subject the interest of infants to certain sacrifice, in every proceeding under the statute, by reason of the great hazard which
But if, as we are disposed to think is the case, the Court retained the power given by the statute, to control the proceeds of the sale, notwithstanding the special form of the condition, it appears that the bond, as actually executed, goes further than the order for its execution, in.binding the commissioner to discharge in all respects the duties of his appointment, and this was approved by a subsequent order of the Court. The duties of his appointment are, of course, those which are ex
But it is said the bond is not executed by the guardian as directed by the act, which says the order of sale shall not be made, unless the guardian of the infant shall previously have entered into bond, &c. It is evident that H. W. McKee, who had before this time been appointed guardian by the County Court, and who is called the guardian of the infants, in the order requiring him to execute the bond, was then regarded by the Court as the true statutory guardian, and that, in placing the funds in his hands, and requiring him to execute bond, the Court was pursuing, as it then supposed, the literal directions of the statute. But as it has been decided in the case of Poston vs. Young, (7 J. J. Marsh. 501,) that the County Court could not appoint a guardian while the father of the infants was alive—we pass this circumstance by, as showing only the intention, in good faith, to pursue the statute. And the question is, whether what must now he considered as a departure from its letter, in requiring H. W. instead of Darius McKee, to execute the bond, and take charge of the funds, is to have any effect upon the sale. Suppose that, after, or even before the filing of the petition, Darius McKee had become unworthy of being entrusted with the custody and management of the proceeds of the sale, or incapable of properly attending to it, or had left the country, was this circumstance, which would render the sale the more necessary for the suitable maintenance and education of the infants, and which may have been one of the grounds for resorting to the Court for a sale, to stop the proceeding entirely, and deprive the Court of its power to decree a sale. This "would be to sacrifice the great object of the statute, in almost the only cases in which its wisdom may not be doubted, to its literal requisition, in a point not essential to the attainment of any of its purposes. The only object of the bond, as already said, was to secure the funds, and keep them subject to the order of the Court. It was required to be executed by the guardian, for conformity only. The
Upon the whole, therefore, we are of opinion that, although the proceedings in the first case, vary from the literal prescriptions of the statute in many particulars, for some of which it might have been reversed upon any writ of error which would have had the effect of suspending the sale, or the order confirming it—yet as the writ of error was not prosecuted until the sale was complete by payment of the purchase money on the one side, and a conveyance of the land on the other; and, as none of the errors which may have intervened seem to be of a character to affect the sale itself, or to defeat any substantial object of the statute, or interest of the infants—the proceedings and decree in this case, will not be reversed, but are affirmed.
The sum of the objections to this part of the proceeding is, that the sale, though ordered to be made on terms substantially consistent with the objects of the statute, though formally made upon those terms, so far as the mere exposure of the estate to sale and crying it off to the highest bidder went, was never completed according to those terms. The highest bidder as we are bound to.assume, upon this record, did not give bonds for the purchase money, and the commissioner did not give any certificate of purchase. Thirteen months after the sale,
If Letcher, or his transferee, McKee, had the right, after two years delay, to insist upon carrying the sale into effect they could have only insisted on the same, or substantially equivalent terms, and the Court would have had no right to vary the terms to the disadvantage of the infants. But the facts assumed, show that, neither the purchaser at the sale, whether nominal or real, nor his transferee, whether claiming fairly or otherwise, had any right to insist on the completion of the sale, even on the original terms, after a refusal, for two years, to comply with those terms on their part. What may not have occurred within those two years? For all that appears, Darius McKee may have died in that time, or his speedy death may have become certain or probable; the land itself may have risen in value; the remainder belonging to these infants, had certainly become more valuable. Why did Letcher and McKee fail and refuse to carry the sale into effect on their part, for nearly two years?
It was, in our opinion, the right and duty of the Court to regard the sale of May, 1831, as abandoned, or rather as a nullity, and to order a re-sale, if it deemed a sale advantageous to the infants, instead of offering their estate in the land to H. W. McKee, upon more advantageous terms. The fact that he had assumed the character of guardian, or even of friend, to the infants, in carrying on this proceeding, and that, while he had thus identified himself with them, he was the holder of the life estate, and as such, had an interest in acquiring their remainder, strengthens the conclusion just expressed. These facts are calculated to awken all the vigilance of the Chancellor, and authorize and require the exertion of all his powers, for the protection of those infants, against an individual, whose position identified him with them, and made him their agent and trustee in the conduct of this proceeding, while his individual interest was in some degree hostile to theirs.
We are satisfied, therefore, that even if this proceeding be deemed valid up to the order of sale, and including it, the subsequent proceedings derive no aid whatever,
We are of opinion, therefore, that the orders offering the estate of the infants in the land south of the Danville and Lancaster road, and directing a conveyance thereof, to him, and confirming the said conveyance, are erroneous, and apparently void; that, on the facts appearing in the record, or plainly deducible from it, he is not to be regarded as a purchaser under the statute, and no title passed to him by said conveyance. We are also of opinion that, the failure to support the last supplemental petition by oath, is an error which, whether it would suffice to avoid the whole proceeding or not, is a sufficient ground for reversing it, when the subsequent proceeding and sale are apparently void.
It is to be understood, however, that the opinion herein expressed, as to the invalidity of the sale and conveyance to H. W. McKee, is founded upon the facts appearing in this record, and clearly deducible from it. Whether these facts are conclusively established by the record, as against all persons who may have acquired interest in the land, or whether they may be litigated in any proceeding for obtaining restoration, and whether Letcher, who is a party in this Court, but who was not a party in the Circuit Court, should be concluded by this record, and if he should not, how far any person claiming under him may be concluded, are questions not decided. We only mean to decide that upon this record, the sale and transfer of the title of William and Jane McKee to H. W. McKee, appears to be invalid, and that because it does so appear, the proceeding is reversible.
Wherefore, the entire proceedings upon the supplimental petition, filed in September, 1830, and so far as relates to the land on the south side of the Danville and Lancaster road, are reversed; and that branch of the case is remanded, with directions to dismiss the petition as to that land, unless, by further proceedings in relation to it,
Rehearing
Petition for a Re-hearing.
[By Mr. Turner and Mr. Owsley,]
The undersigned, counsel for the defendants in error, respectfully ask the Court to reconsider and modify the opinion delivered in this case.
They will briefly proceed to set forth the grounds on which they ask a modification, and to state the parts of the opinion in which it is desired.
They believe this is the first case in which it has been, on argument, decided, that a person not a party, or the representative of a party, to the suit in the inferior court, could be made such, to a writ of error in this Court, merely on the ground that he was a purchaser of the property sold under a decree of the inferior Court, and which decree was sought to be reversed by such writ of error. This, too, when there had been no motion, or other proceeding to set aside the sale, in the Circuit Court, and when such purchaser had no hand in preparing the cause, and seeing that all proper matter was placed on the record of the inferior Court.
This Court itself seems to think the proceeding an anomaly. In this case, the person to whom the estate was cried off, who soon after transferred to another the benefit of his purchase, is made a party.
If the purchaser at the sale can properly be made a defendant to a writ of error to reverse the decree, why may the plaintiff not suggest that there has been, as is the fact in this case, several other sales, and make each successive vendee a party? The statement in the commissioner’s report, that Letcher was the purchaser, did not, in a legal point of view, make him any more a party to the record or suit, than it did any subsequent person who purchased the estate from Letcher, or his vendee.
We therefore think that, Letcher was wrongfully made
The part of the decision, however, which we contend is the most objectionable, is that which intimates an opinion against the validity of the title acquired under the sale. We do most earnestly, but respectfully, contend that, this question is one not properly before the Court, in this cause, for decision. It is a question that can alone properly arise in the inferior Court, on a motion made by McKee’s heirs, to quash or set aside the sale, or on the trial of a suit to recover the land; then the persons, and all the persons actually interested can be heard. In this case, the trial and decision are ex parte, as it respects the persons the most deeply and vitally interested.
Besides, the rules of law and the forms of proceeding in this Court, will not permit or allow any new matter to be brought into the case.
The only questions that this Court, on the present writ of error has jurisdiction of, are, whether or not the Circuit Court erred in decreeing a sale. That decree was final, and the subsequent proceedings are merely executory. If they were illegal, there must be steps taken in the inferior Court, to correct them, before they are the subject of an appeal, or writ of error.
In accordance with this view of the subject, has been the practice of this Court. Where a question is thus presented, the record has all the matter in the original case, and all the new facts and explanations proven on the motion, which latter are often the most important.
In cases of sale, replevin and delivery bonds, and sales of land or chattels under common law process, the practice is as here contended for.
A commissioner, or master in chancery, is no more nor less than the sheriff of the chancellor; and his acts and reports should be brought before the inferior court and questioned, on the proper notice to parties interested, in the same manner that the acts of a sheriff are at common law.
This Court, however, says that after a sale has been carried into effect by a conveyance, the practice has obtained not to reverse the decree and proceedings directing
In looking into the decisions, we do not understand them as having gone so far as for this Court to decide the, sale invalid, on a writ of error to reverse the decree. If the sale were void for want of matter in the petition to give the Court jurisdiction, the reversal is an idle act; for, as decided in the case of Vowles’ heirs, referred to in the opinion in this case, a decree and sale under such petition, unless new matter is proved on the trial of a suit by the heirs, to recover the land, as in the case of Coger and Singleton, will form no obstacle to a recovery.
In the case of Riley vs. Wiley, 3 Dana, p. 71 to 75, this Court had reversed a decree of the Madison Circuit Court, under which a sale and commissioner’s deed had been made; but had not intimated the effect of the decision on the title of Riley, who had purchased under a decree procured by himself. After the cause went back to the Circuit Court, Wiley moved the Court to quash the sale, and it did so, and the case referred to in Dana, is. the decision on that quashal; and the practice now contended for, then prevailed.
In the case of Coger vs. Coger, 2 Dana, 271, this Court reversed a decree for a sale of infants’ estate, on the petition of their guardian, on the ground that the petition did not state a case giving the Court jurisdiction; and as stated in the opinion, the Court was urged then to proceed, and decide the sale void, which it refused to do, on the ground, as stated, that the purchaser was not a party to the case in this Court.
But the Court do not intimate that he could properly have been made a party to the writ of error in that ease The reason given, for not deciding whether or not the sale was valid, was a . very good one; and we contend that another equally as good, might have been given, that the validity of the sale, or the title under it, was not then presented in a manner to. authorize the Court to pass on it. And further, that no intimation of an opinion should be given on this subject, because, new matter might, on a trial of the question in the inferior court, be brought into their cage, to weaken or strengthen the title.
The latter ground is removed by the case cited of Riley vs Wiley. There Fowler purchased, and immediately transferred the benefit of his purchase to Riley, and the commissioner made a deed to the latter.
The first and second grounds above named, admit or concede the jurisdiction of the Court, and the validity of the decree directing a sale, and still the mandate of the court directs the whole proceeding to be dismissed.
We think we have shown that an objection to the proceedings after the decree, must originate by proceedings in the inferior court, to quash them, if voidable, and if void, there is ample remedy by an action to recover the property.
Indeed, the Court, after their opinion was written out, seems to have considered it doubtful, whether a decision on the validity of the sale was proper, as the case is now presented, and proceeded to qualify the effects of it. But we contend, and hope the Court, on reconsideration, will think, that no opinion at all on the validity of the sale should now be pronounced, and will so change the decision as to leave out all expression of an opinion on this question, until the parties interested, are, in a subsequent proceeding, all heard, and such new matter as either party may bring forward, is placed before the Court, to act on judicially.
If the Court should still think that the proceedings, after the decree for the sale, are properly before the Court for revision, and that they are erroneous, (which we hope it will not do,) still, we contend that the question of the validity of the title under the sale, is not before the Court
Indeed, this is a stronger case in our favor, than that. There the Court reversed on the ground that the petition for a sale did not state facts which gave the Court jurisdiction; and the whole proceeding was apparently void. In this case, the Court has not decided that, it had no jurisdiction, nor has it decided that the decree directing a sale, was radically wrong; or that the sale, when made, was invalid as made.
Hence, the sale was not void; and if it was merely voidable, surely it is not only in accordance with usage and practice, but with propriety, especially as all interested are not before the Court, and cannot be heard, and, as extraneous matter may have a powerful bearing on the subject—that proceedings to vacate the sale should originate in the Circuit Court, uninfluenced by any expression of of opinion in this case. It is in vain to say that, an intimation of an opinion now, will not have its influence on any controversy hereafter commenced, even between new parties. A litigant should not, in the slightest degree, have his case, or any part of his case, prejudged, in a proceeding to which he was no party, and could not be heard: it is contrary to natural justice that he should.
It is respectfully suggested that the record presents no fact which should be conclusive against the purchaser, or his alienee, or even authorize the Court, upon a writ of error to the decree, without any previous proceedings to set aside the sale, in the court of original jurisdiction, to infer any thing unfair or unfavorable to the sale, or the right acquired by the purchaser.
It is undeniable, that the purchaser acquired a right to have a conveyance under his purchase, unless there was fraud in the sale, or something was afterwards done by. him or his alienee, from which the Court, on proper investigation, in a proceeding to which all persons interested are parties, to find that the purchase was abandoned, or the right to a conveyance under the purchase was waived; neither of which, is to be inferred from the record
This Court has determined, and doubtless correctly, that the right-acquired by a purchaser at a sale under execution, cannot be affected by the after return of the execution, by the officer; and if so, on what principle can the right of a purchaser under a decree of a court of equity, be affected by the after return of the commissioner by whom the sale was made, under authority of the decree. In the latter, as in the former case, the purchaser acquires right by his purchase; is not a party in fact to the record of the case in which the decree was made; has no control over the commissioner, and ought not to be prejudiced by his ex parte return, any more than would a purchaser be prejudiced by the return of a sheriff on an execution.
Suppose a sale is made by a commissioner under authority of a decree, and in strict conformity to the requirements of the decree, would not the purchaser be entitled to the land sold? and might he not obtain the assistance of the Court, to compel a conveyance of the title, provided he evinced a readiness and willingness to comply with the terms of sale? and would it not be competent for him to prove his readiness and willingness to comply with the terms of sale, notwithstanding the report of the commissioner to the contrary? It seems to the counsel for the defendants, that he most clearly would; and if so, does it not follow that this Court should never, in a proceeding by writ of error to the decree, pronounce judgment of condemnation, or even express an opinion, against a sale, for any suggestions contained in the re. port of the commissioner, unless the objection has been previously made and decided on by the court, during the sale, in a proceeding to which the purchaser was party? No such proceeding was had in this case, in the Circuit Court.
If the report of the commissioner was even admitted to be evidence against McKee, as to his failure to execute bond with security in conformity to the decree, we most respectfully insist, that according to no fair inference,
A re-hearing or modification of the opinion is respectfully asked.
The petition was overruled without any formal Response.