Cavenaugh v. Jakeway

1 Walk. Ch. 344

• Court: Michigan Court of Chancery
• Decided: January 15, 1844
• Status: Published

Opinion

The Chancellor.

It was clearly the duty of the officer to have sold the lots separately; and, by selling them together, he has probably incurred the penalty given by the fifth section of the act. When several known lots, tracts, or parcels, are levied on, the ninth section requires them to be separately exposed for sale. This, however, is directory to the officer merely, and a non-compliance on his part will not make the sale void. The irregularity must be corrected by applying to the court out of which the execution issued, to set the sale aside. Whether the irregularity would affect a purchaser, not a party to the suit, as in the present case; or whether, he being a party, the Court would set aside the sale after the two years’ redemption had expired, it is not necessary for this Court to decide; nor can any such consideration give it jurisdiction, where it has none in the first instance.

There must be fraud to give this Court jurisdiction; irregularity is not sufficient. Chancellor Kent said, in Shottenkirk v. Wheeler, 3 J. C. R. 280, that there was no case in which equity had undertaken to question a judgment for irregularity. Every court has power to control its own process, in such a way as to prevent the abuse of it. It has as much power over its process, as any other proceeding before it. Stratford v. Twynam, 1 Jac. R. 418.

The bill does not make out a case of fraud. It alleges the lots were worth $1,500, when they were sold, and that they sold for $131.40 only. If the sale had been absolute, the great inadequacy of price would be a strong badge of fraud; but it cannot be so considered, when it is recollected complainant had two years to redeem in, by paying the $131.40, with ten per cent interest.

Demurrer allowed, and bill dismissed with costs.