P. & M. Bank v. Dundas, 10 Ala. 661

P. & M. Bank v. Dundas

10 Ala. 661 | Ala. | 1846

ORMOND, J.

A bill of review lies for error apparent on the face of the decree, or for newly discovered evidence. [Story’s Eq. Pl. 224, § 407; Dexter v. Arnold, 5 Mason, 301, and cases there cited.] It is upon the first ground that this’ bill is filed, and it is material to notice that it is the established doctrine, that it will not lie for error merely in the judgment. That is properly revisable on error, or appeal; but it must be error apparent on the decree itself. In Perry v. Phelips, 17 Vesey, 178, Lord Eldon, after laying down the rule, and stating the distinction, between an erroneous judgment and error apparent, gives the case of an infant not having a day in court, to show cause against the decree, as an example of error apparent on the face of the decree. In England, the material facts are stated in the decree itself, but in this State, and in many others, it is not the practice to recite the facts in the decree ; we must therefore look into the.pleadings, and proof, to ascertain the facts upon which the decree is based.

The proceedings in the original suit, except the master’s report, and the chancellor’s decree, are not found in the record. From the bill now filed, it appears that W. R. Hallett filed a bill to foreclose a mortgage, on a tract of land, executed to him by one Gazzam — that subsequent to the execution of the deed of mortgage, Gazzam, on the 16th November, 1835, conveyed a portion of the mortgaged premises to one W. P. Brown, and on the 9th April, 1836, another portion to Brown, and Brown & Edmonds — and at other subsequent dates, other portions thereof to other persons — that the complainants hold by a derivative title, under the conveyance from Gazzam to Brown' of 16th November, 1835, and the P. & M’ Bank also by a derivative title, under the conveyance of the 9th April, 1836. The matter being referred to the master, he reported that the portion of the mortgaged property not embraced in the deeds aforesaid should be first sold *668to satisfy the mortgage, and that the property embraced in the other deeds should be sold in the inverse order of the dates; that is, that the portion of the property last in Gaz-zam’s possession, should be first sold. The master subsequently declares that the land held by the P. & M. Bank should be last sold. This is the portion of the report which is al-ledged to be erroneous. The P. & M. Bank, by its answer, denies that there is any error in the report of the master, and denies that the plaintiffs produced any evidence before the master, showing that they had any interest whatever in the property. The report of the master is made a part of the answer, together with the evidence adduced before him, and on which it was made.

In our opinion the objection here taken is valid. The leading principle of the decree is, that where different parcels of mortgaged premises have been sold, at different times by the mortgagor, subject to the mortgage, the sale for the satisfaction of the mortgage, is to be made in the inverse order of the alienations. If in this case, the aliens from Gazzam, had retained the land, no difficulty whatever could have arisen, as the sale would have been made in the order of the alienations, commencing with the last, if no other fact existed, disturbing the operation of this equitable principle.

But this case is still further involved, from the fact that the parties to this suit claim derivatively, from the first and second alienees of Gazzam. The manner in which the bank derives its title, is fully set out in the proof adduced before the master, by which it appears, that it claims through several mesne conveyances, from the deed of Gazzam to Brown & Edmonds, on the 9th April, 1836, all of these deeds being with warranty of title* Of the title of the complainants we know nothing, except that they claim by a title derived from the deed of Gazzam to Brown, dated 16th November, 1835; whether this was with warranty does not appear, except from an expression of the chancellor, by which it appears that it was not — nor do we know when the intermediate conveyances from Brown were made, as they adduced no evidence whatever before the master.

Such being the true state of the case, we think it clear', there is no error apparent on the decree. We shall shall not *669enter upon the inquiry, whether the omission of Gazzam to warrant the laud he sold to Brown, on the 16th November, 1835, exposes this land to a sale for the satisfaction of the mortgage, in preference to a subsequent sale with warranty. The complainant has adduced no title, and therefore there cannot, as to him, be an error apparent in the decree. Possibly, upon an appeal, or writ of error, the decree might be considered erroneous, but that is not sufficient to authorize the filing a bill of review — that would be to invade the province of the appellate court. Perry v. Phelips, 17 Ves. 178, and Dexter v. Arnold, 5 Mason, 316, where as in this case, the question arose upon alledged error in the report of a master.

We feel the less reluctance in the decision here made, on this question, because there is another point of the cause, equally if not more decisive against the defendants in error. In England, the allowance of a bill of review is a matter of right, when there is an error apparent on the face of a decree. If it be sought on the grounds of newly discovered testimony, it can only be by leave of the court, and will not be granted if injury will thereby be caused to parties guilty of no blame or laches. In Dexter v. Arnold, 5 Mason, 315, Judge Story says, “ it may be refused therefore, although the facts, if admitted, would change the decree, where the court, looking to all the circumstances of the case, deems it productive of mischief to innocent parties, or for any other cause unadvisable.” See also, Young v. Keightly, 16 Vesey, 348; Pery v. Phelips, 17 Id. 176. So in Wiser v. Blackly, 2 J. C. C. 488, Chancellor Kent held, that it rested in the sound discretion of the court to grant or refuse it.

It cannot be doubted that there may be cases even of error apparent upon the decree, where circumstances might exist, making it improper to permit a bill of review to be filed : but in this State, the legislature has acted on the subject, and has placed all petitions for leave to file a bill of review upon the same footing, and authorized the court to permit a bill of review to be filed when, under the circumstances of the case, it is proper to do so; to stay the proceedings, &c, (Clay’s D, 350, § 30 ;) thus placing the whole matter in the sound dis-. cretion of the court,

*670The facts are, that the master distinctly reported, that the lands held by the P. & M. Bank should be sold last; that is, that the lands held by the Bank should not be sold to satisfy the mortgage, unless the remainder of the land, including that held by the complainant, was insufficient for that purpose. This report was not excepted to, but was confirmed by the chancellor, and a sale directed to be made in conformity with it. A sale was thereupon made in the mode directed, and was subsequently confirmed. In all this, no blame whatever is imputable to the P. & M. Bank. No agreement in regard to the sale is proved to have been made; it took place under the decree, and in virtue of it.

As the decree placed the complainants in advance of the bank, in the sale of the property, it devolved on the former the principal burthen of protecting it against the mortgagee, and in point of fact, as appears from the testimony of Mr. Owen, the land held by the bank was not offered for sale. That the principal bidder and purchaser, was an agent of the complainants, and when the sale reached about $19,000, it was stopped, the agent telling the master, he would pay the remainder of the purchase money — about $7,000. The bank did not bid at all, obviously because the complainants, by their position under the decree, were compelled in protecting their own interests, also to protect the interest of the bank.

It appears from all the testimony, that lands in Mobile, have been constantly depreciating in price, if not in actual value, since 1837, and have depreciated since the sale, and it is only necessary to look at the position the parties then occupied, to see at once the probable, if not certain injury, which would be inflicted on the bank by directing a resale.

At the time of the sale, there was, it seems, a portion of the lands yet in the hands of the mortgagor, and of course primarily liable. There were also two alienations by Gazzam subsequent to those under which both the parties to this suit derived title. One to L. D. Woodruff, for the consideration of $1800, and one to Stewart & Thornton, for $30,000. On all these lands, the competition of the bank might, by enhancing the price, have diminished the burthens which would *671otherwise have fallen on its own land. Still more is it impossible now to say, what will be the extent of the injury, if a sale is to be again made of these lands, many of which appear rather to have a speculative than a real value.

It is true, these apprehended results are not certain, but a re-sale may, and probably will be productive of these mis-chiefs, to an innocent party, and have been superinduced by the gross negligence of the other. Under these circumstances, it is our opinion, that leave to file the bill of review was improvidently given — it must therefore be here dismissed.

We have not considered one peculiarity of this case, that the reformation of the report, and re-sale, would disturb the rights of purchasers, because it appears, that with the exception of one small piece of land, it was purchased by the complainants.