Harlan v. Murrell

33 Ky. 180, 3 Dana 180, 1835 Ky. LEXIS 66

• Court: Court of Appeals of Kentucky
• Decided: June 6, 1835
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

^HE decree f°r foreclosing the mortgage, and selling the slave mortgaged, is erroneous:—

First. The bill describes the debt only by reference to the mortgage — “the notes, to secure which the mort§aSe was givent are not made exhibits by the bill, and ought not therefore to have been used on the hearing, without proof, and have been improperly copied into the record; and the mortgage only describes one of ,, V . ,, . them as a note tor “« hundred and ninety• — ” I his is hardly sufficient to justify a decree pro confesso, for a hundred and ninety dollars.

There should be nothing left to the discretion of a ministerial officer unnecessarily. A decree for a sale by a commissioner should prescribe the manner in which it is to be made — at least, that it shall be public, and duly advertised. A commissioner is directed to sell mortgaged property (nothing further:) the decree is reversed.

Second. The court ought to have directed the commissioner how to sell the slave. He ought at least to have been required by the decree, to make a public sale, and to advertise the time and place of sale a reasonable time previously thereto. But the decree only directed him to sell. This was improvident, and we think, erroneous. The commissioner ought not to have been left altogether to his own discretion, as to the time and manner of sale. Such unqualified power should never be delegated to any ministerial agent, and especially in such a case as this — in which, the decree being rendered by default, it was peculiarly the province of the chancellor to guard the rights and interests of the mortgager, against unnecessary embarrassment and jeopardy.

Decree reversed, and cause remanded.