Myers v. James

72 Tenn. 370

• Court: Tennessee Supreme Court
• Decided: April 15, 1880
• Status: Published

Opinion

CoopeR, J.,

delivered the opinion of the Court.

At the last term of this Court a decree was rendered in this cause, ascertaining the debt of the defendant against the complainant, and oi’der-ing the land in controversy to be sold by the Clerk in satisfaction thereof, for cash, in accordance with the terms of • the mortgage or trust deed, executed for its security. The sale was made, under the decree, on the 8th of December, 1879, and the land struck off to the defendant, as the highest bidder, at the bid of • $5,000. The Master has reported the sale, and the defendant now asks for a confirmation of his report. The complainant objects to the confirmation, and has filed the following exceptions to the report: 1st, Because the sale was made under a decree of the Court, not by the trustee under the trust deed, and was made for cash, barring the equity of redemption. 2nd, Because the sale was made at an inadequate price. 3rd, Because the sale was made at an unfavorable time. 4th, Because the claim of a prior and superior title by the defendant, recorded in the Register’s office, and otherwise generally known, prevented the complainant from raising money on the property. 5th, Because the title was clouded by the alleged claim of defendant, who insisted upon said claim so that the property might be sold at a sacrifice. 6th, Because the sale did not accurately pursue the directions of the decree in the manner or the time of the advertisement. 7th, Because the report charges the costs of sale against complainant, when, by the decree, the costs were to be charged against defendant.

Exceptions to a Master’s report are allowed for the purpose of testing the question •whether the report is in accordance with the decree or order directing it, and, in proper cases, sustained by ’ the evidence on which it purports to be based. If the Master has obeyed the decree in the case of a sale, and, in other cases, has followed the weight of the testimony, exceptions are of no avail. Exceptions to a report are in the nature of a special demurrer, and must distinctly point out the discrepancy between the report and the record on which it is based: Ridley v. Ridley, 1 Cold., 332. A speaking demurrer is clearly bad, and speaking exceptions must be equally so, and for the same reason. The Court cannot go outside of the record to act upon them: Goddard v. Cox, 1 Lea, 113; Childress v. Harrison, 1 Bax., 410.

If a party has any ground for setting aside the report, which does not appear in the record, his remedy must be sought in some other mode than by filing exceptions. lie cannot, by exceptions to a report, have the benefit of a rehearing, or of a bill of review, or of an original bill.

All of the exceptions filed in this case seek either to modify the decree or to go outside of' the record- on which the report must stand, except the sixth and seventh, and are inadmissible. The sixth exception is too vague, because it does not specifically point out the departure from the decree in the manner and the time of advertisement which is complained of. The brief of the counsel in support of this exception, suggests that the trust deed requires the advertisement of sale to be made for thirty days, and if the decree is construed to direct the sale in accordance with the trust deed, then the report shows an advertisement for a shorter period. But the direction of the decree was to sell for cash, free from the equity of redemption, as provided in the trust deed, “ after advertising the said property according to law.” The decree has been obeyed.

The seventh exception is based on an erroneous construction of the decree. The defendant was ehai’ged with all the costs of the cause up to the decree, but not with the costs of executing the decree occasioned by the failure of the complain-ant to pay the money judgment within the time prescribed by the Court.

The exceptions must be disallowed

The complainant has filed a petition, supported by a full and able argument, seeking to have the decree modified so as to give the complainant the right to redeem. But this argument should have been submitted at the last term, when the decree-was rendered. ISTo sufficient reason is given why -Jais was not done. It would not, however, have Availed the client. The direction to sell for cash.1 free from the right of redemption was deliberately made, because these were the terms of the contract entered into by the parties, by which they ought to be bound, except under very peculiar circumstances, and because there had already been a long-delay to the prejudice of the defendant. It would, moreover, be an extraordinary case which would justify the Court in changing the terms of a de-cretal order after the order had been executed. If the affidavits, presented in support of the exceptions, which have been disallowed or improperly filed, are treated as an informal petition or application for relief upon the facts therein stated, they present no sufficient ground for refusing to confirm the sale. Mere inadequacy of price can never be allowed, to interfere with a judicial sale, for if it were otherwise, very few sales would ever be made.

Property, at the end of litigation, must go for what it will bring.

The Court has no right to interfere with the execution of its own decree, if fairly conducted, and, therefore, no power to indulge the unfortunate debtor.

The discretion of the Clerk in fixing the day on which a decree of sale will be executed, can only be controlled' in a clear case of its abuse. As the sale is still open for advanced bids, the time when it was made was no more unfavorable than any other day between the last and the present term, when it was required to be made, and so far as appears, • the day selected was as favorable as any. The prior title under which the defendant claimed, appeared in the pleadings, and he cannot be prejudiced by merely insisting on his rights.

The sale must be confirmed.