85 Ala. 25 | Ala. | 1887
— In defense of a statutory real action, brought by appellees to recover the land in controversy, the appellant set up a title derived from a purchaser at a sale by the register under a decree of the Chancery Court, rendered on a bill tahen pro confesso, without personal service, to which three of the plaintiffs were defendants, and who did not appear. Sections 3830-3835 of the Code of 1876, which correspond with sections 3489-3495 of Code of 1886, provide, among other provisions not necessary to be mentioned,
The decree in the chancery suit was enrolled March 1, 1878. At what particular time the sale was made under the decree, does not appear; but the sale was reported by the register April 25, 1879, and was confirmed on the succeeding day. The bill of exceptions states, that it did not appear from the record, or otherwise, that a bond was given as required by the statute, before the execution of the decree, or that a copy of the decree was personally served on the defendants, or either of them. The question is, whether the sale made under the decree of the Chancery Court shall be declared a nullity in a collateral action, when the record does not affirmatively show a compliance with the terms of the statutes in the execution of the decree. Appellees insist, that the provisions of the statute are conditions precedent, on performance of which the jurisdiction of the court to make and confirm the sale is dependent, and that such performance must appear from the record.
The contestation between the parties is, whether the sale and confirmation are void, or only voidable.
We do not question that a sale made under such decree, without compliance with the statutory provisions, or before it became absolute, should be set aside on timely and proper application to the same court which made and confirmed the sale. But the present case raises a very different question. The validity of the sale and confirmation is collaterally assailed; and the question is, what presumptions should be
The controlling principle is, that all reasonable presumptions are indulged to uphold judicial proceedings in a court of general jurisdiction, which have been conducted to a final judgment or decree, when collaterally drawn in question; and that whatever of doubt or ambiguity may be.apparent from the record, will be resolved in favor of their validity. The principle applies to every judgment, decree or .order, from the institution to the completion of the proceedings. In such case, the presumption is, that every act is rightly done, and in accordance with the law. Our own decisions have repeatedly announced and applied these principles to the judgments or decrees of courts of general jurisdiction. — Hamner v. Mason, 24 Ala. 480; Falkner v. Christian, 51 Ala. 495; Pettus v. McClanahan, 52 Ala. 55.
In Voorhees v. Bank of United States, 10 Pet. 449, proceedings in a suit commenced by attachment were called in question in a collateral action, and their validity assailed on the ground, that the record did not show that the statutory requirements had been complied with, in issuing the attachment, in giving notice, and in rendering judgment by default; and that an order of sale was made before the expiration of twelve months from the return of the writ, when the statute prohibited a sale from being made within that time. The sale was made and confirmed. After referring to the provisions of the statute, and the contention of the plaintiff in error, Baldwin, J. says: “This leaves the question open to application of those general principles of law, by which the validity of sales made under judicial process must be tested; in the ascertainment of which, we do not think it necessary to examine the record in attachment, for evidence that the acts alleged to have been omitted appear therein to have been done. Assuming the contrary to be the case, the merits of the present controversy are narrowed to the simple question, whether the omission invalidates the sale. The several courts of Common Pleas in Ohio, at the time of these proceedings, were courts of general civil jurisdiction; to which were added, by the act of 1805, power to issue writs of attachment, and order a sale of property attached under
Dawson v. Litsey, 10 Bush, 408, was an action to recover land, which had been sold by the commissioner under a judgment of the Circuit Court enforcing a lien for the purchase-money. The title thus derived by the purchaser was relied on in defense of the action. The commissioner, in making the sale, did not follow the judgment; but the sale was reported and confirmed, the purchase-money paid, and a deed executed to the purchaser. Objection was made, that the court, in the order of confirmation, had ratified a void sale. It is said: “The order of confirmation is a judicial recognition of the right of the commissioner to make a sale as reported, and is such a final order as may be appealed from by the party aggrieved. The chancellor alone is to judge of the validity of such sales, and the true test in all cases is, did the court have jurisdiction of the parties and the subject-matter of the action; when rendering the judgment? if so, it determines the rights of all the parties to that judgment, so long as it remains unreversed.” Other cases could be cited, illustrative of the application of the general principles of law above stated to sales made under a judgment or decree of a court of competent jurisdiction, which had been confirmed, but we deem it unnecessary.
' No objection is made to the regularity of the service by publication in the chancery suit. Being in strict conformity with the statute, it was sufficient to give the court jurisdiction of the parties. The Chancery Court had jurisdiction of
While the failure to give the bond required by the statute, or service of the decree, “would furnish good ground for refusing to confirm the sale, or for setting it aside, if moved for within a reasonable time,” as was said in Holly v. Bass, supra, it may well be doubted, whether the regularity of the sale, and of the order of confirmation, can be assailed in any mode, other than by application to the Chancery Court, in the manner, and within the time prescribed by the statute, or by original bill in the same court, as was done in Sayre v. Elyton Land Company, supra. That the défendant may avail himself of the latter mode, he must move in a reasonable time, be diligent, and acquit himself of unexplained laches. There should be a time beyond which judicial pro
The acts of the register in taking and approving the bond, and in serving a copy of the decree, are not judicial; and the statute does not require that they should be entered of record. On a collateral attack, only the proceedings of the court entered on record can be looked to. Nothing need appear of record not required by law to be entered. By the order of confirmation, the court adjudged that the decree of sale was executed in conformity with the statutes. The order is not impeached by any thing apparent on the record, and being unreversed, the sale must be regarded as valid in fact and in law. The decree of sale, the sale, and order of confirmation operated to pass the title of the plaintiffs who were parties thereto. Of course, the title of the heirs of Dalgam, as to whom the chancery suit was abated, is not affected thereby; but, as all the plaintiffs are not entitled, none can recover. — Whitlow v. Echols, 78 Ala. 206.
Reversed and remanded.