Raisin v. Statham

22 F. 144

• Court: U.S. Circuit Court for the Southern District of Georgia
• Decided: July 1, 1884
• Status: Published

Opinion

LocKE,

(orally.) The form of the proceeding adopted by the petitioners in this case is substantially that suggested by the United States supreme court in the case of Krippendorf v. Hyde, 110 U. S. 276, 283; S. C. 4 Sup. Ct. Rep. 27. That is a case involving personal property, while real estate only is involved in the case at bar; but the principle so strongly enunciated in the decision — that every court has power to control its own officers so as to prevent manifest mistake in the execution of its own process and'abuse of that process — is applicable to all property which may become the subject-matter of that abuse. The species of property involved does not suggest any ground of distinction; the fact which determines the application of the rule Is simply the mistaken or wrongful execution of the court’s process. The filing of a bill on the equity side of tho court, while, perhaps, in most cases the most appropriate form of proceeding, is not necessary. “The equitable powers of courts of law over their own process, to prevent abuse, oppression, and hardships, are inherent, and equally extensive and efficient.” Krippendorf v. Hyde, supra. The petition in the case, however, is filed as a petition pro interesse site, which is an equitable proceeding in its character. It is, of course, true that the custody which the law takes of personal property through a levy is very different from the constructive seizure of a levy upon the laud; but it would seem that the judicial comity which seeks to prevent conflict between the state and federal courts may be appealed to where the officer of the latter has imposed upon a tract of land a levy, after full notice, both to himself and the plaintiff in the process, of a prior levy by the officer of the state court, made by virtue of process having a superior lien, and has sold it under the circumstances mentioned in the petition, and summarily dispossessed the purchasers who bought at the sale by the officer of the state court, and who had been put in possession by him.

Under the Georgia statute the decree for unpaid purchase money against the defendant and against the property in question, upon which the execution owned by petitioners issued, confers a superior lien to that of a general judgment at law against the same defendant. Code, §§ 8586, 3654.

IThe state statute, as to the right of an officer to put a purchaser in possession of land bought at judicial sales, is as follows: “He may dispossess his defendant in the process, or his vendees or lessees of younger date than the judgment upon which the process issues; but he, may not dispossess other tenants claiming under an independent title.” Code, § 2624. It is- not disputed that petitioners, or their tenant, Perkins, claimed under a title independent of Statham; that he claimed under a sheriff’s deed at a regular judicial sale under' process, having a lien upon the land superior to every lion but that of taxes. The United States marshal could have no greater rights in putting a purchaser in possession than the sheriff had. Eev. St. § 946.. It is clear, therefore, that there has been mistake in tbe execution of the process of tho court; such mistake as, if permitted to stand, would result in an abuse of process, and injustice and oppression through that abuse. >.

The supremo court of this state (Georgia) has recently passed upon the main question involved in the case. They lay down the rule as follows:

“ Courts have full power over their officers and tlieir acts in making execution sales, so far as to correct wrong and abuses, orrors, irregularities, mis' takes, omissions, and frauds; and whenever they are satisfied that a sale made under process is infected with fraud, irregularity, or error, to the injury of either party, or that the officer selling is guilty of any wrong, irregularity, or breach of duty, to the injury of the parties in interest, or either or any oí them, the sale will be set aside.” Parker v. Glenn, Feb. term, 1884.

Numerous cases upon the same subject will be found cited in Mobile Cotton Press & Building Co. v. Moore, 9 Porter, (Ala.) 679. The court will therefore grant an order setting aside the sale by the marshal, under which the respondent Hart claims, and commanding the marshal to restore the property to the persons dispossessed of the same by him.