Tate v. Bush

Cooper, J., delivered the opinion of the court. Complainants by their bill attack the sale made under the decree for partition — first, because the court had not jurisdiction to decree the sale on the application of the infant by his next friend; second, because the infant was also non compos mentis and had no guardian; third, because the commissioner took the bonds of the purchaser in an amount equal only to the purchase-money, and not in double that sum, as was required by the statute, and also because the bonds were made payable to the commissioner and not to the parties in interest, and were not returned into court; and, fourth, because the sale was made on the premises and not at the door of the court-house. The first objection to the sale is disposed of by the decision in Duncan v. Wilson, 44 Miss. 643, in which case, after a full examination of the question, it was held that the chancery court had jurisdiction to decree a sale of lands for partition upon the application of the guardian of an infant co-tenant, although the statute had made provision for a sale of lands in which an infant was interested by the probate court. We are unable to see why the question of jurisdiction should be otherwise decided merely because the proceedings are instituted by the next friend instead of the guardian. The lunacy of the infant does not affect the decree. Freeman on Judgments, § 152; Shelford on Lunacy 395; Saunders v. Mitchell, 61 Miss. 321. The third ground of attack is untenable. The question is not whether the matters urged constituted error, but whether because of them there was a want of power in the court to make the decree. For the correction of all mere errors, the remedy of the parties was by appeal from the decree. Having failed to pursue this course, nothing less than a defect of jurisdiction can now be invoked. [153] The report of the commissioner does not show that the sale was made at a place other than the court-house door, but the fact that the purchase-money was secured by bonds equal to and not double its amount, as required by the statute, is affirmatively shown thereby; if, therefore, the statute in reference to the bonds was mandatory and not directory, the validity of the decree would be seriously involved. But we think the statute is not to be so construed that all sales not made in strict conformity thereto are void. It is not declared that sales made otherwise than as directed shall be void, nor does the end sought to be attained, the security of the purchase-money, fail because the penalty of the bonds was not double the purchase price. It is true that the bonds did not strictly conform to the statute, but they were executed with reference to it, and it became a part of the contract into which the purchaser aud his sureties entered. Execution, therefore, might have been issued on them as they matured for the amount of the purchase-money, and this would have been the extent to which satisfaction could have been had if the statute had been fully complied with. The failure of the commissioner to return the bonds into court cannot be visited on the purchaser. The parties in interest should have moved the court to compel such return. They cannot visit the consequences of their failure upon others. In Nesbitt v. Cunningham, 27 Miss. 292, there had been a sale of lands under a decree foreclosing a mortgage. Objections were interposed by the parties, and some of them being sustained, a decree of confirmation on terms was entered. At a subsequent term of the court the commissioner reported, setting out what had been done in execution of the decree made on his first report. A party in interest filed objections to this second report. Among other objections the point was made that the sale had not been made within legal hours; that the bonds taken had not been made payable to the right party; that the bonds did not conform to the statute, because they failed to show on their face that they bore interest; that the bonds were not returned by the commissioner into court at the [154] proper time. The court held, on appeal from a decree of confirmation, that it was too late for the party to raise the question as to the time of sale, he having failed to do so in his objections to the first report; that the bonds taken substantially secured to the party all that- the law contemplated, and that the purchaser was not chargeable with the neglect of the commissioner in failing to return the bonds at the proper time. If such objections were insufficient on a direct appeal, much the less can they prevail in a collateral attack. If it be admitted that a legal sale could not have been made except at the' door of the court-house, it yet remains true (in the absence of any statement in the report that the sale was made at any other place) that the time, manner, and place of sale were necessarily involved in the hearing of the application to confirm, and the presumption must be indulged, even on direct appeal, that the decree was founded upon sufficient evidence. George’s Dig. 373, 438. The remaining inquiry is whether a lien exists upon the land which may now be enforced to secure the payment of the purchase-money. We think there is no lien. The legislature, in providing for the sales of real estate in which an infant was interested by the probate court, directed that both personal security and a mortgáge on the land sold should be taken to secui’e the purchase-money, while in sales made by the chancery court only personal security was required. It is immaterial why the difference was made; in each case the lawmaking power has directed the security which it has deemed sufficient and proper; the courts cannot add another not provided. It was intimated in Tooley v. Gridley, 3 S. & M. 517, that the vendor’s lien might exist under judicial sales where no other security had been provided. See also Armigen v. Eglehart, Bland’s Chancery 519; Miners v. R. R. Co., 3 Ga. 341; Buford v. McCormick, 47 Ala. 428; Tarborough v. Wood, 43 Tex. 91. In Ferguson v. Shepard, 58 Miss. 804, it was said that where the law required a mortgage to be taken by the guardian on the sale of the lands of an infant, which mortgage the guardian failed to reserve, [155] the lien of the vendor could be enforced to secure the payment of the purchase-money. In Campbell v. McLeod, 53 Miss. 484, it was held that where a sale of lands was made to a married woman on credit and an invalid mortgage executed by her to secure the payment of the purchase-money, the lien of the vendor was not lost. But these are all cases in which either no other security was taken or where the law or the intention of the parties was that the land should be charged with the payment of the purchase-money. . In the case now before us the law provided an independent collateral security, and there was no express provision that a lien should be retained on the land. These facts, if shown in a sale by contract between the parties, would show a waiver of the lien by implication. It is only by analogy to cases of private contract that the vendor’s lien can be invoked as applicable to judicial sales, and, applying the rules, it follows that the complainants- are not entitled to enforce a lien on the lands, wherefore the Decree is affirmed.