Mobile Cotton Press & Building Co. v. Moore

COLLIER, C. X. It is well settled at common law, that courts of judicature possess a controlling power over the acts of their officers, which it is their duty to exercise in advancement of justice. Thus, if a sheriff is guilty of an irregularity in- his proceedings upon an execution, to the prejudice of either party, or a third person, the court will either set aside, or correct the act complained of. As, for example, if a sheriff, in executing a writ of habere facias possessionem, deliver to the plaintiff the possession of other or more land than he has recovered,, the court, on motion, will so modify the act, that complete justice be done. In Saul vs. Dawson, (3 Wils. Rep. 49,) the plaintiff, as tenant in common, recovered possession of five eighths of a cottage. A writ of possession was executed by the sheriff, who turned the tenant out of possession of the whole, and locked up the door. The court held, that the writ ought to have pursued the verdict, and made a rule upon the sheriff and the lessor of the plaintiff, to restore the tenant to the possession of three eight parts of the premises — remarking, that if justice was not thus administered, the tenant would be put to another ejectment— (See also 1 Burr. Rep. 629; 5 Burr, Rep. 2672; 1 Caines’ — 688 — R. 500; 5 Johns. R. 386.) It may be true, that in order to do justice, greater liberality is allowed in ejectment than other actions, yet the principle on which courts supervise the acts of their officers, is alike applicable to all) and as the question is res integra in this court, it may be Well to review the authorities in regard to it. in Ryerson vs. Nicholson, (2 Yeates’ Rep. 516,) a motion was made to set aside the sale of the defendant’s land, which had been made by the sheriff under a fieri fiacias, on the ground that he had sold several distinct parcels of land together. The court considered, that they had the right to entertain the motion, on the ground that the sheriff was its officer, and justice required that the proceeding should be summary in such a case. They further held, that, it was the duty of the sheriff to get the highest sums for the lands of unfortunate debtors, and not to permit the wealthy alone to become the purchaser's, to the exclusion of persons less affluent. That the highest price might be obtained, the general rule required that different lots of ground, houses, or parcels of land, Should be sold separately; unless the parties agreed to a different mode of sale, or the aggregate sum to be Obtained, would be increased by selling several lots together. As the facts of the case did not disclose anyreasod fóí a departure from the general rule by the sheriff, the shlé was set aside — (Rawley vs. Brown, adm’r, 1 Binney’S R. 61, is to the same effect.) The same court, in Friedly vs. Scheetz, (1 Sergeant & Rawle’s Rep. 162,) say, if any fraud was practised oh the purchaser, or any mistake in the description of land, Sold under a fieri fiacias, application should be made to — 689 — the court to which the writ is returnable, to set aside the' sale. In the case of the Ontario Bank vs. Lansing, (2 Wend.R. 260,) the plaintiff in execution inadvertently bid a sum less than its amount; the sale, on his application,was set aside, and a re-sale ordered, on his- stipulating to bid at least as much at the re-sale. The motion, in this case, was sustained, on the ground that the plaintiff might be prejudiced, if a mortgagor or a junior judgment creditor should seek to redeem the premises, which, it seems, had been mortgaged previous to the sale. Where a motion was made to set aside a sale under' execution, on the ground that real estate worth ten thousand dollars, was sold to satisfy a judgment of one hundred dollars, it appeared that the premises were so situated,- that a portion which would probably have brought more than enough to satisfy the judgment, could conveniently have been sold separately. The court held,- that the sale of the property an masse,- under the circumstances, clearly proved it to be fraudulent, and granted the motion — (Groff vs. Jones, 6 Wend. Rep. 522.) And in Jackson vs. Roberts, (7 Wend. Rep. 88,) the court remark, that a a party, who may be injured by the mistakes of a sheriff, can have relief by a summary application to the court under whose authority the officer acts,- or through the medium of a court of equity; and it is much better that he should be confined to these modes of redress, than to render all titles derived from judicial sales doubtful, and subject to be defeated, by allowing the written instruments by which they are evidenced, to be attacked collaterally, by parol evidence.” — 690 — The Court of Appeals of Maryland, in Arnott & Copper vs. Nichols, determined that a court possesses an equitable control over its executions, and may, on motion, quash the return of a sheriff — (1 Har. & Johns. Rep. 471.) And the same court, in Nesbit vs. Dallam, (7 Gill & Johns. Rep. 512,) set aside, on motion, a sale made en masse, of divers lots of ground situated in the same town, but separate and distinct from each other, remarking, that such a sale is prima facie void, and he who seeks to sustain it, must show its justice and expediency. In this case, it also appeared, that property sold for a sum not exceeding one fifth of its intrinsic value — on which the court remarked: “such a disparity between the price and value of the property sold, furnishes intrinsic evidence of the irregularity, impropriety, or unfairness of the sale; and connected with any of the several omissions of duty, or indiscretions of the sheriff before referred to, leaves not the court a shadow of discretion, as to vacating this sale.” In Kentucky, a statute was passed on this subject, in eighteen hundred and eleven ; so much of which as is pertinent, is in these words: “ and all sales by color of any execution, had or made by covin, fraud or collusion, between plaintiff and sheriff, or other officer acting under such execution; or between defendant and such officer ; or between any purchaser or any such officer, or ' in any wise contrary to the provision hereof, may be set aside, by motion to the court having proper jurisdiction thereof, to be commenced within one year, by any person or party aggrieved thereby, by serving a notice of the intended motion,” &c. — (1 Morehead, '& Brown’s Laws of — 691 — Ky. 628.) The courts of that State, have not considered this statute as impliedly inhibiting motions to set aside sales, for all causes not embraced by it; but the reverse has been held to be the law. Thus, in Carlile vs. Carlile, (7 J. J. Marshall’s Rep. 625,) it appeared that the sheriff, on the sale of a tract of land, announced to the bidders, that a greater amount was due in virtue of the execution, than really was due by it. and the land sold for the amount of .the execution ; the sale, on motion, was set aside. The court held, that there might be other causes than those mentioned in the act, and to motions for quashal for any of those other causes, the statute does not apply — (See also Cox vs. Joiner, 4 Bibb’s Rep. 94.) In Stockton vs. Owings, (Litt. Select Cases, 256,) it was held, that inadequacy of price is not per se, a sufficient cause for setting aside a sale of land under execution, but coupled with other circumstances, it may be— (See further, Hansford vs. Barbour, 3 Marsh. Rep. 515; Hart vs. Bleight, &c. 3 Monroe’s Rep. 273; 3 Litt. 128; Bleight’s heirs vs. Tobin, 7 Monroe’s Rep. 617) — In which latter case, it was decided, that the fact that the attorney for the plaintiff, who was concerned in the purchase, having sent the execution to another county, where a large quantity of land was sold in haste, &c. is strong evidence of fraud. . And fraud was also inferrable, from the purchasers having purposely misinformed a person who intended to purchase of the day of sale. And in Knight vs. Applegote’s heirs, (3 Monroe’s Rep. 388,) the clerk omitted to notice on the fieri facias; the credit for about half the judgment entered at its foot, and — 692 — the sheriff raised the entire sum by the sale of land, the title of the land, it was considered, would not pass to the purchaser. So, where the plaintiff in an execution prevents other persons from bidding for land levied on, by promising if they would not, to purchase it himself, and sell to them at a low price, such parts as they might want, and in consequence of such negotiation, purchases for less than its value, the sale would be set aside on motion — (Mills vs. Rogers, 2 Litt. Rep. 217.) From the authorities cited, we make these deductions: 1. A party injured by the improper execution of a fieri facias, may obtain redress, on motion to the court from which the writ issued; 2. That a sale of land will be set aside, where the sheriff is guilty of a mistake, irregularity, or fraud, to the prejudice of either party, or a third person ; 3. So, the misrepresentation, or fraud of a purchaser, furnishes just ground for invalidating the sale. In the case at bar, it is insisted, that conceding there was no fraud on the part of the defendants in error, yet the sale was made by the sheriff, under a clear mistake, against the wishes, and to the injury of both parties to the execution ; and that of consequence, it should not be allowed to divest the title. The counsel for Harding; who assumed the exclusive direction of the judgment, states explicitly in his affidavit, that it was the intention of himself and the gentleman who represented the defendant in the execution, that the property should not have been sold under the advertisement made in January, unless directions were given by him to the sheriff to sell — that in the verbal order which he gave to the sheriff — 693 — to advertise the property, he endeavored to convey to him his wishes on the subject: supposing the matter understood between the sheriff, Judge Hitchcock and himself, he gave it no further attention. Had he have known that it was proposed to sell the property on the first Monday of February, he would not have allowed it — -in any event, he felt bound to notify Judge Hitchcock of the sale, and would himself have bid the amount of the execution, or nearly so. All this, so far as it refers to Judge Hitchcock, is confirmed by him, who, in addition, charges by his affidavit, the sheriff, with a knowledge of the arrangement between Mr. Gibbons and himself. The facts from which fraud (either in the sheriff or the purchaser) is inferrable, is explicitly denied in their answers. Considering the case upon the facts which are not denied by the answers, and we think it clearly appears, that the sale was made by the sheriff, either under a misapprehension of duty, or else a misconception of the arrangement between the parties, which they endeavored to communicate to him. In either view, the result would be the same — the sale should be set aside. That the defendant in the execution has been injured, greatly injured, by the sale of the Hotel, is a fact beyond all controversy — property of the value of seventy jive thousand dollars, above all liens, has been sold for the comparatively trifling sum of seventy jive dollars. Not only .the defendant, but, in all probability, the plaintiff,would be prejudiced, if the sale were allowed to stand, as there may be no other property which can be subjected to the satisfaction of the execution. As this case may be disposed of, without fixing mala — 694 — jides upon any person connected, with it, we will forbear to consider the argument drawn from the great disparity between the sum for which the property sold, and its intrinsic value — the haste with which the execution of a deed succeeded the sale, notwithstanding the notice from the parties, that there was a mistake, &c. It was argued for the defendants, that even admitting that the sale might have been set aside before it was-perfected by a deed, yet having been thus consummated, the application to the equitable control of the court, comes too late. This argument, in our opinion, cannot be maintained. The sale was made, as we have seen, against the direction of both the parties toThe execution, at a time when they were not present, and cannot be allowed to divest the title. It is the levy and sale which i-s to give a title in equity, and which, if regular, may be perfected; the sheriff’s deed merely evidences these facts, and makes that a legal, which before was an equitable interest. It cannot be that the deed possesses such potency, as to give validity to a title which was previously invalid. It must be remembered, that the sheriff, in himself, is a mere agent of the law, not disposing of his own property, but only such interest as the defendant in execution was entitled to; hence his deed cannot operate, a confirmation of title, beyond what equitably passed by the levy and sale. If a party injured, might then object to the proceeding, as being in violation of law, his remedies must still remain unimpaired. Suppose the execution of the deed should bar the application for relief, parties injured would often.be reme695 diless. They might never hear of the levy and sale, until long after it was made — and besides, the sheriff might execute a deed, before an injunction ¿could be obtained, in despite of remonstrances to the contrary. In none of the cases cited, was it objected to the motion, that the purchaser had obtained a deed, though doubtless, the laws of the States in which the decisions were made, authorise the sheriff to furnish to him some written indicia of a sale and purchase. The case cited from 7 Wendell, shows such to be the law in New York, and seems to intimate that a deed interposes no difficulty. Whether the court should have granted the latter part of the motion, viz., have directed the conveyance by the sheriff, to be delivered up to be cancelled, may be questionable. We have not been able to find any case in which the motion went so far. The jurisdiction of the court results from the sheriff being its officer, and the reason why a notice is given to the purchaser is, that he may defend his interests in the proceeding against the sheriff — he is not obliged to appear, and if he does not, is not in contempt, but the court will decide upon the motion in his absence. Now, as the court only acts summarily, with a view to ascertain the • regularity of the sale, &c. — this being determined to be invalid, and so declared, can the court go farther, and direct the purchaser to deliver up the sheriff’s deed? We incline to think, that though this would be competent for a court of equity, yet it would be going beyond the just powers of a court of law. If such an order be legal, to disobey it would be illegal, and subject the purchaser to process for — 696 — contempt. At any rate, it is wholly unnecessary^-the sale may be set aside, and the deed declared to be void, and this will as effectually destroy the deed, as if it were cancelled in fact — the judgment on the motion will furnish record evidence of the invalidity of the deed. We are, then, of opinion, that the motion should be granted to the extent indicated,, on the plaintiff in error paying to the defendant Moore, the sum at which he bid off the property, with interest thereon since the day of sale. That the County court may administer the law as we have laid it down, its judgment is reversed, and the case remanded,