12 Johns. 521 | Court for the Trial of Impeachments and Correction of Errors | 1815
The-, decree in. .this; b&Use, of the-, fith 'of Bíqr.cñ,. Í313,"being -by .-consent,. Under an agreement-'between'thb parties,. it is insisted that it cannot be modified, or set aside,, upbti-molion, ifer mU-tter-arising. afterwards. z. "-.
This-is a correct principle as tb- matters' arising .subsequently, and so connected with-: the subject of the decree as to change the intent of it, but can never be urged to avoid a benefit resulting to a party by a ■' subsequent act-not inconsistent, with,'. but in'furtherance of, that part of the decree in which the"respondent has "an.-, .interest, and to- which, fif the allegation- 'is substantiated) he must have assented* " ’’ " 1 ;
. The object of the respondent’s bill,- in the court below, was to effect a sale of the mortgaged premises by the master, to reeqvier, out of the proceeds, the sum due to him-; arid although the Subsequent purchase of the equity of redemption, by thd appellant^
The decision of this cause, however, wholly depends upon the nature of the payment made to Mr. Jay, the solicitor of the respondent. If, then, bn an examination of the evidence, it should turn out to have been in extinguishment of the mortgage, the subsequent proceedings must be nugatory, as founded on an instrument which had ceased to operate, and the order of the court ofchancery ought to be reversed ; but if it should be a mere deposite, the order ought to be affirmed.
From the correspondence between Mr. Burr and Mr. Jay, no correct conclusion, as to the nature of the payment, can be drawn. The former states that Monell was disposed to redeem, and had offered to pay the principal, interest,, and costs, but. that Mr. Lawrence refused to receive it; this the latter denies, and says that he only refused, in behalf of Mr. Lawrence, to give an assignment of the mortgage, and was still ready tp receive the amount, and stop all further proceedings, but-without assigning the mortgage, which, he said, could only be requiréd for the purpose of defeating a trust for the benefit of Mr. Sackettfs creditors, a purpose which appeared to him iniquitous ; that, therefore, he saw no reason for delaying a sale of the premises; and the receipt, subsequently given'by him in the same cause for the amount, does not purport to be in extinguishment of the mortgage, although that would be the inference, in the absence of other testimony on the subject; but it appears, from the evidence of Mr. Jay, confirmed by- the testimony of Jasper LyncK, that this money was received at the instanbe of Monell, merely to save interest, and not with a view to redeem the mortgage. That this must have been the cáse, tjie subsequent conduct of the parties sufficiently evince. It certainly could not have been the understanding that all further proceedings should be arrested by it,¡ as the time of sale was subsequently prolonged, at the request of. the appellant arid his
. 1 do,not think'that the situation, of Jasper Z,y-ne/iaffords suffW ciebt grounds to affect his credibility as a,witness, or invalidate his acts, as a master... . He was .perfectly disinterested,, and expressly declares that he had no:; connexion, with the business of Mr. Jay in 'the -court' of ‘chancery. . His being a partner" in other business .(not in that, court) .could not disqualify him to perform duties, in.,his official .capacity*because Mr.''Say wps •the solicitor; nor can t-he sale made b(y liim be set aside, merely because the order of the 29th- of Juna 'had been made/ unless positive notice of the existence.of such-prder.be brought; home; to him. ' This-has'not'been-done. .The sale, consequently, i§ hot irregular- on that account; anc] the purchasers- ought to be protected,' unless it can be avoided for some .other cause. They paid their ino'ney 'under a belief, and in' full confidence:, that the -title to the property passed to them at the time "the conveyances were, .executed by the master, according: to the. •direcitions ■ "of '-the-"statute,, which expressly declares, -that, such deeds shall be as' valid as if the sa-me had beep' executed" by, the mortgagor and mortgagee, - TMé íhigMsh rule, requiring-a-p.onfirma-tion'.Qf-.the masteris report,, is. not applicable- here.', -Iff England, proceedings- are different: the master opens a book for. biddings,, and ail remains.in an unfinished state, .and.under the perfect contralpf-the--court,, until the-report of salps is confirmed. .The master, (here, has no authority to. consummate, the sale by executing á conveyance; that is done by the parties in-interest onlyapd until a ..confirmat-ion'qf.his,pepprt,.the whole of-the--business,, in relation ;to the biddings ’transacted before, him,' continues open for the exercise, of the discretion* of the ; court. . Here, the ' confirmation of the .master’s report, before the deeds are. executed,, is'not essential-; it has been rendered unnecessary by. the statute., ip . giving the piaster authority'to convey to t-he:purchasers.' The„subs'équén;t confirmation bf the. report of-sales thus consummated,. i£,th-e, whole 'has been Porrect-]y.’and fairly’conducted, follows "of course. !• "
It, is 'objected,, that the master’s report, of the 6th':of JlprM, Stating, .the,.sum .df.,3,91;.l dollars- and 46 cents-tó be due-'to', the respondent on the mortgage, has never been confirmed,, and, Therefore* :f‘he sales ought to be get psicle for.'.irregularity„, .- .’Suclt
The master had no authority to arrest or postpone the sale, without due notice of the "order of the 24th of June; and the circumstances urged, do not warrant the inference that he had such notice. . They aré too slight to implicate an officer, in whom it would have been criminal to have disregarded- the order, by proceeding in the sale, notwithstanding his knowledge that it had been made. His proceedings appear to have been'fairly and correctly conducted; and the sale thus made, by virtue of the decree, by consent, ought not" to be vacated or set aside» My opinion accordingly is, that the order of the equrt of chancery, of the 10th of September, 1813, confirming the sales, and directing the master to execute deeds, is affirmed,
It will be necessary to a right understanding of this case, and to .arrive at a correct conclusion as to the rights of the parties, briefly to state the leading facts in the cause, and to keep in view dates, ánd the course and order of the proceedings. The respondent, William Lawrence, having a mortgage .against William W. Sacked f and the defendant, Monell, having two judgments against Sacked';'and the defendant, Wood, having a deed of the mortgaged premises, from Sacked, in trust for all his creditors, the respondent filed his bill to foreclose the mortgage ; upon which, the parties, by their respective solicitors, on the 6th of March, 1813, entered into an agreement, that the mortgaged premises-should be sold under the direction of a master in chancery, on, or after, the 15th of May, then next, and the proceeds paid into the court of chancery 3 out of which Lawrence was to .be paid the sum due him 3 and the rights of Monell, Woods, and Sacked, to the surplus of such-proceeds, to be preserved to them, respectively. A decree was thereupon entered, pursuant to this agreement, and a reference- made to a master to ascertain the sum due on the mortgage, and to proceed to a sale of the mortgaged premises. Ac-, cording to the agreement, the master advertised the sale for' the 19th of May. After entering the decree, and before the day of sale, Sacketds interest in the mortgaged premises was sold under an elocution, issued upon á judgment in favour pf Edmund Gris-
The. regularity or fairness of the proceedings, under the sheriff’s sale, are not how before us ; the appellant, for spine reason or other, appears to have been extremely solicitous to .become the purchaser of the mortgage, and to have the same.assigned to him. Lawrence was willing to receive the money due him, and cancel the mortgage, This, it seems, would not .answer Monell's purpose, and he insisted upon having the mortgage assigned to him. The objection, on. the part of Lawrence, against assigning the mortgage was, that it might be used to defeat the trust created .by the deed to Woods, for the general benefit of Sackett'e creditors. The mortgage money was, in point of fact, paid to Lawrence ; the mortgage., however, neither cancelled nor assigned to Monell. And the first, .and one of. the principal questions in the cause is, whether this payment was made, and accepted, in .satisfaction and discharge of (lie mortgage, or only as u deposite, and s’o as not to affect the sale by the master ? I am fully satisfied that it must be. viewed in the latter sense; ■ and without prejudice to those proceedings, It is unnecessary rto scrutinize minutely, what actually passed between Lawrence and Monell, on the 7th of May, when there was some pretence of a tender of the money due on the mortgage. The .parties, ac? • cording t<s their affidavits, appear to . have understood very dif»
It has been contended, on the part of the appellant, that the Order of the 29th of June, to stay the sále, suspended the au?
This being the opinion of a majority of the court,
Judgment of affirmance.
For affirming, 12. Mr. Justice Sfmm, and ten of the senators, were for reversing^