State Bank vs. Noland et al.

(JANUARY indispensably necessary to enable the court to execute its judgment. And so far as the mere setting aside of the process, or the return upon it, is concerned, the power exists as well after as at the return term of the process: because this is a proceeding between the parties to the proceeding and the officers of the court, in which the rights of third persons are not involved.

But after the court has approved the sale, and caused a deed to be acknowledged and delivered to the purchaser, whereby he has had assured to him a perfect legal title to the property, should the court, at a subsequent period, upon the grouud of fraud, accident or mistake, or for any irregularity in the proceedings, which must of necessity, in most instances, arise out of one or other of these causes, upon motion, assume jurisdiction, and the power to hear and determine the merits of such motion, it would thereby, in effect, take jurisdiction of matters not properly cognizable before it, even upon a regular proceeding instituted in such court for that purpose: for these are all matters properly cognizable before a court of chancery; and, whether presented by bill or motion, does not in any wise change or affect the question itself. The purchaser, when he leaves the common law court with perfect legal title sanctioned and approved by the court, is no longer to be considered before that court; his rights are matured, and he is so far disconnected from the proceeding, that he is not affected with notice of any after order made in regard to his title. And when brought before the court again by notice and motion, or otherwise, he stands there as a party defending his right to hold an estate to which his legal title is perfect; and when the validity of the title itself is assailed for fraud, accident, or mistake arising out of the irregularity of the proceedings or acts of the parties, he has a right to be heard before a tribunal that can rightfully exercise jurisdiction in such matters, with power and process to bring all the parties in interest before it, to put them upon their consciences to answer, to cancel deeds, to restore possession and award equitable compensation.

In view of the general powers of the common law and chancery courts, we feel clear upon this point; and although there

TERM, 1853.]

State Bank vs. Noland et al.

are several reported cases which would seem to question the correctness of our conclusions, yet, when carefully examined, they will be found to have been made under statutes which authorize such summary proceedings. As, for instance, the Kentucky decisions. In that State, the practice has grown up under an express statute. (1 Morehead & Brown's Laws of Kentucky, 628.) It is true that, in Carlile vs. Carlile, (7 J. J. Marsh. 625,) the court extended its power to act upon cases not embraced within the statute. But there is neither a reason given, nor an authority cited in support of the decision.

And in New York, the case of Jackson vs. Roberts, (7 Wend. 88,) was but the dictum of the court. The question of jurisdic tion was not raised.

In Alabama, it was held, in the case of The Mobile Cotton Pr. vs. Moore & McGee, (9 Porter R. 684,) that a sheriff's sale might be set aside upon motion after the purchaser (a third person) had obtained a deed for the property purchased: but the court, in that case, held, that the common law court had no power to vacate the deed; which makes the decision, in effect, this-that the common law court could indirectly divest the purchaser of his title, when, if a direct application for that purpose had been made, the court would have refused to exercise such jurisdiction. This, however, was a strong and peculiar case. Real estate worth $200,000, and above all incumbrances worth $75 or $100,000, was sold for $75, without the knowledge of either the plaintiff or the defendant, and against his instructions to the sheriff. The purchaser was apprised at once of this, and before he had paid the purchase money or received a deed; and the sheriff also reminded of the instructions given him. The deed was made hastily and under suspicious circumstances; and, as we may presume from the record, a motion made at the same term that the sale was made, to set it aside. We are not aware, under the Alabama practice, whether any formal acknowledgment is or not required to be made in open court, and an order admitting the deed to record; and if not, such irregularity could only have been brought to the notice of the court by motion.

State Bank vs, Noland et al.

[JANUARY

But under our statute, the practice is different. The purchaser's title is imperfect until the deed is brought in open court, approved, acknowledged, and admitted of record, an entry of which is required to be made of record. This proceeding is, in effect, an approval of the sale. The plaintiff and defendant still have day in court, and may, if such irregularity exists, repel the application to have the deed acknowledged and certified; and when they fail to do so, they stand in a different attitude from suitors, who have had no such opportunity to contest the regularity of such proceedings. Thus considered, that case has far less weight, as an authority, than other decisions, to which we will briefly refer.

In 8 Sm. & Marsh. Rep. 460, Gredley vs. Duncan et al., where property worth $2,000 was sold for $10, to the plaintiff in execu tion, and after the discharge of the defendant under act of bankruptcy, the court held that a proceeding by motion before the common law court to set aside the sale, could not be entertained, and that the chancery court could alone take jurisdiction of the

matter.

In the case of Day et al. vs. Graham, (1 Gilman R. 435,) where several disconnected tracts of land were all sold together, and purchased by the plaintiff's attorney for $50 62, when the land was in fact worth $4,000, to satisfy a balance due upon the judgment of $37 78, the defendant being at the time a lunatic, it was held, after a careful examination of authorities, that such sale could not be set aside by motion before a common law court, but that the party, if aggrieved, must seek redress for such grievance in a court of equity.

In the case of Adamson et al. vs. Cummins ad., (5 Eng. Rep.,) where slaves had been sold under judicial process to a third person, a motion was made in the court below to quash the execution and set aside the sale. It was held that a judicial sale might be set aside for fraud, or where the process, under which the sale was made, was void; but as there was no fraud shown in that case, this court overruled so much of the decision as set aside the sale, and affirmed it so far as related to quashing the process.

TERM, 1853.]

State Bank vs. Strong et al.

This decision, therefore, when limited as to the time for making the motion to set aside the sale as herein expressed, in no wise conflicts with it, but, on the contrary thereof, when viewed in reference to the particular state of the case and the immediate question discussed, the decision quashing the writ, was correct; for to that extent the common law court had control over its process, officers, and also over the parties interested. But where the process is only erroneous, and under which third persons purchase property, we can conceive of nothing so likely to destroy all confidence in such sales as to permit the purchaser, in this summary and informal proceeding, to be divested of his title.

The facts of the case before us, need no particular examination to show that they come within the rule we have laid down. A great length of time had intervened between the purchase and the application to set it aside. Several conveyances of the property purchased had been made and new rights sprung up, which make this a case over which the common law courts could not take jurisdiction. The party, if entitled to redress, must seek it in a court of equity; and, as this may be done, we intimate no opinion as to the merits of the case.

The judgment of the Circuit Court must be affirmed.

Mr. Justice WALKER delivered the opinion of the Court.

In each of these cases, the judgment of the Circuit Court is affirmed. See State Bank vs. Noland et al., decided at the present term of this Court.

It being the province of the jury to determine upon the weight of the evidence, this court will not set aside a verdict on the grounds of supposed preponderance of evidence against it.

Writ of Error to Pulaski Circuit Court.

F. W. & P. TRAPNALL, for plaintiff.

JORDAN, contra.

Mr. Justice ScoTT delivered the opinion of the Court.

In this case, no question as to improperly admitted testimony is embraced in the grounds of the motion for a new trial; nor is there any question presented on the record as to misdirection of the jury, because it does not appear what instructions the court gave or refused. And being of opinion that there is ample testimony in the record to sustain the verdict, we do not feel authorized to disturb it upon the ground of the supposed preponderance of the evidence in favor of the defendant. To settle that, was the peculiar province of the jury. Finding no error in the judgment, it must be affirmed.