23 Ark. 39 | Ark. | 1861
delivered the opinion of the court.
This was a bill to foreclose a mortgage executed by Sessions to the Receiver of the assets of the Real Estate Bank.
The questions growing out of the attempt of Sessions to discharge the debt secured by the mortgage, in the bonds, etc., of the State, were decided in the case of Sessions et al. vs. Peay, Rec’r. 21 Ark. 100.
The lands embraced in the mortgage are in Chicot county. The chancellor decreed that if the debt should not be paid by a day named in the decree, the lands should be sold for its satisfaction, at the court-house of Pulaski county, by a commissioner appointed for that purpose.
It is insisted for Sessions, who appealed from the decree, that the chancellor erred in directing the lands to be sold at the courthouse in Pulaski.
The theory of sales of this character is, that the court is itself the vendor, and the commissioner or master is mere agent in executing its will. The whole proceeding, from its-incipient stage .up to the final ratification of the reported sale, and the passing of the title to the vendee, and the money to the person entitled to it, is under the supervision and control of the court. The court will confirm or reject the reported sale, or suspend its completion, as the law and justice of the case may require. Tooley vs. Kane et al., 1 S. & M. Ch. R. 522; Penn’s ad. et al. vs. Tolleson, 20 Ark. 652; Deadrick et al. vs. Smith, 6 Hump. 146.
If not restricted by statute, it is within the power of the chancellor to prescribe, by the decree, the time, place, terms and mode of sale; and the varying circumstances of cases render it necessary that he should be invested with discretion in these matters, in order to prevent the sacrifice of property, and to promote advantageous sales.
Mr. Daniell says: “In strictness, all sales ought to take place in the public room at the master’s office in London, and should be effected by the master’s clerk; and formerly when it was considered for the benefit of the parties interested that the estate should be sold in the country, or by any other person than the master’s clerk, it was necessary to have a special order of court to warrant such a deviation from the ordinary practice ; but the necessity for such an order has been taken away by the 75th of the Orders of 1828, which directs, ‘That where estates, or other property, are directed to be sold befox’e the master, the master shall be at liberty, if he shall think it for the benefit of the parties interested, to order the same to be sold in ■ the cowntrry, at such place, and by such person as he shall think fit.’ ” 2 Dan. Ch. Pl. & Pr. 1,447.
Mr. Hoffman says: “ In England, the sale takes place at the master’s chambers, or, if in the country, before the master’s clerk, deputed for that purpose. Our decrees (unless on consent or special cause ordered otherwise) direct that the lands be sold at public auction, in the county in which they are situated, or in the city of New York or Albany, if they lie there. Where the sale is to be in the country, the master may exercise his discretion, where to sell, but it is usual to do it at the county town. It is sometimes directed in the decree.” Hoff. Master in Chan, 216.
See. 7, Art. II, chapter 28, Gould's Dig., declares that the separate court of chancery, established by the act at the seat of government, “ shall proceed according to the rules, usages, and practice of courts of chancery, except when otherwise provided by law, and enforce its orders and decrees by execution, or in any other manner proper for a' court of chancery,” etc.
Sec. 16, ib., declares that “ the laws now in force in regard to execution sales shall apply to sales upon process, of said chancery court, which sales, when of property in Pulaski county, may be made on the first days of the terms of said court, . and such process shall be returnable upon the second days of the terms of the court.”
We think the proper construction of this section of the statute is, that when lands are to be sold under execution issued upon a decree of the court, the sale must be made at the court-house of the’ county in which the lands are situated, as under executions ■ upon judgments at law, but that the' statute does not expressly, or by necessary implication, deprive the court of discretionary power to prescribe the time, place and terms of sales made by the master, or a commissioner, under its decrees.
But we think, as a general rule, unless good cause be shown to induce the court to direct otherwise, it should order the sale to be made on the premises, or.at the court-house of the county in which the lands are situated.
We must presume, in the absence of any showing in the record to the contrary, that the chancellor directed the lands to be sold, by the commissioner, at the court-house of Pulaski, for some good and sufficient cause, and shall not, therefore, overrule his discretion and direct otherwise.
If the appellant had made it appear, to the chancellor, that the lauds would be sacrificed by a sale in Pulaski,, or that a more advantageous sale could be made in the county where the lands were situated, we must presume that he would have ordered the sale to be made in the latter county. As above remarked, the sale is under the control of the court up to the time of its completion.
The decree must be affirmed, but the time fixed for the sale having passed, the Cause must be remanded, so that the decree may be’ executed under further directions, to the commissioner, by the chancellor.
The chancellor directed the commissioner to advertise the sale in a newspaper published in Little Eock; and it is insisted for the appellant that the sale should also have been advertised in Chicot county, in order that persons residing in the vicinity of the lands, who, it is contended, would be most likely to bid for them, might be informed of the time and place of sale.
The force of this objection would depend upon the extent of the circulation of the Little Eock newspapers, in Chicot county; and we think the matter may be safely left to the information and discretion of the chancellor.