2 F. 273 | U.S. Circuit Court for the District of Nebraska | 1880
This is a bill in equity to quiet plaintiff’s title to certain lands in the city of Omaha. It is admitted that the plaintiff’s title is perfect, unless it has been divested by a sale under execution issued upon a judgment for $251.31 and costs, in favor of Bancroft and others and against one Nuckolls, rendered by the district court of Douglas county,
There is a conflict between Kellogg and Meredith as to the-question how, and by whom, the clerk’s costs were to be paid; Kellogg saying that Meredith .promised to pay them, and Meredith insisting that Kellogg agreed to do so. The clerk to whom the costs were due (defendant Chandler) had gone out of office and was not then in Nebraska. When he subsequently returned and learned that Meredith had receipted in full for the judgment and costs, he called upon him and demanded his costs, which, not being paid, he applied to his successor in the clerk’s office and procured the issuance of an execution therefor, under which the land in question was sold and bought in by Chandler. The sale was afterwards confirmed by said district court, by which it is claimed that certain grave irregularities-were cured. A deed was made by the sheriff to Chandler, who afterwards conveyed to defendant Paxton. Five years-after the judgment Kellogg moved to set aside the sale. The-motion was overruled, but upon what ground does not appear.
1. It is insisted that the matters complained of by the plaintiff were finally adjudicated in the state court by the order confirming the sale and the subsequent order overruling the motion to set the sale aside. This renders it necessary for us to determine what is the effect of an order of confirmation in. such eases. The rule that where a court has jurisdiction of a cause, but has committed errors in its proceedings, its judgment
Nor is the plaintiff or his grantor estopped by the subsequent order of the state court overruling the motion to set aside the confirmation of the sale. No greater validity was given to the sale by the latter order than by the original confirmation. Besides, that motion was made five years after the sale; and it is clear that the state court had, at that late day, no jurisdiction to entertain it. We must presume that it was overruled because it was made too late. It does not, however, follow that it is too late for a court of equity to grant relief if the plaintiff is entitled to it.
2. The validity of the sheriff’s sale under which defendants’ claim is attacked first upon the ground that the judgment was .satisfied by the plaintiff therein, and that, therefore, the sale was void. The proof clearly shows that the attorney for the plaintiff executed to Kellogg a receipt in full for the judgment, interest and costs. This receipt may be explained by parol proof, and on explanation it is shown that the costs due Chandler, though receipted for, were not in fact paid. It remains, however, clear from the evidence that Meredith and Kellogg both intended that the receipt should satisfy the judgment and remove the encumbrance, notwithstanding the non-payment of Chandler’s costs. Had they the power to accomplish this ? I think it clear, under the authorities, that in the absence of statutory regulation only the plaintiff in a judgment, or his attorney or agent, has the power either to satisfy it, or direct its enforcement by execution. In this case Chandler (the clerk) was not the plaintiff, nor was he a party to the judgment. There was, in fact, no judgment for any particular sum as costs.
Johnson v. Anderson, 4 Wend. 474, is in point. That was,
In the absence of statutory regulation the.clerk has no authority to issue execution without the direction of the plaintiff or his attorney. Herman on Executions, 66. This must be upon the ground that the clerk is not a party to the judgment, and has no control over it.
It is said in answer to these suggestions that Chandler obtained authority from the attorney of the judgment plaintiff to issue the execution. If this be so, it does not help the defence, because that attorney had previously given Kellogg a satisfaction in full of the judgment, upon which satisfaction the latter was relying for the security of his title. To say that the attorney for the judgment plaintiff could execute a valid release to Kellogg, and then, without notice to him, cancel it, and authorize Chandler to issue execution and sell Kellogg’s land, would be to sanction a gross fraud.
In selling property under an execution a sheriff acts by virtue of a power, and if the power does not exist no title passes. Carpenter v. Stilwell, 11 Kernan, 61; Laval v. Rowley, 17 Ind. 36.
Decree for plaintiff in accordance with the prayer of the bill.