Robertson v. Haun

1 Free. Ch. 265

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

The case is briefly this. In December, 1838, Robertson obtained a decree in this court against William G. Haun, foreclosing a mortgage, and ordering a sale of a number of negro slaves, embraced in the mortgage. At the sale made by the commissioner appointed to execute the decree, Conger became the purchaser of seventeen of the slaves sold, and gave bond, with security, according to the statute upon that subject, for the payment of the purchase money, which bond was forfeited, and an execution issued thereon, against which Conger filed his petition and obtained a supercedeas, alledging certain errors and defects in the proceeding which are supposed to affect his title to the slaves which he so bought. A motion is now made to discharge that supercedeas. The counsel for the motion has thought proper in his written argument to designate the order granting the supercedeas as unprecedented. To this it may be remarked, that it does not follow, as.a very logical conclusion, that a case without an exact precedent is therefore without the pale of remedial justice. Some reference to the practice of courts of chancery in regard to judicial sales, both in England and the United States, would doubtless have saved counsel from falling into this error. The theory of sales of this character is, that the court is itself the vendor, and the commissioner or master its mere agent in executing its will. The whole proceeding, from its incipient stage up to the final ratification of the reported sale and the passing of the title to the vendee and the money to the person entitled to it, is under the supervision and control of the court. The court will confirm or reject the reported sale, or suspend its completion, or even set aside the confirmation of.the report, according as the law and justice of the case may require. Even after the confirmation of a reported sale if it appears that any fraud, error or mistake has intervened, injuriously affecting the interest of the parties concerned, the court will set aside the order of confirmation and rectify the evil, or order a re-sale upon petition for that purpose. In such case the purchaser is not required to file a bill, but may attain his ends by mere petition. Laight v. Pell, 1 Edw. Ch. R. 577; 2 Mollay 385; 2 M’Cord’s Ch. R. 159; 2 Har. and John. 346.

The practice in this state in relation to such sales, has not been veiy regular or uniform. By the English practice the whole proceeding is considered in fieri until the report is confirmed, the purchase money paid, and the conveyances executed and delivered. After a confirmation of the report of sale, a rule is then made upon the purchaser to pay the purchase money into court; this done, a reference is made to the master to report whether a good title can be made; and upon his reporting in the affirmative the money is ordered to be paid over and the titles delivered. Blake’s Ch. 312. This practice has not been strictly adhered to in this state. Heretofore, as far as my knowledge of the practice goes, it has been the habit of the commissioners to give titles as soon as the purchaser paid the purchase money, or if sold on credit, as soon as the bonds were executed and delivered. Although we may not have adopted the English practice in form, yet its leading principles have doubtless been preserved. I entertain no doubt then that the petitioner, so far as form is concerned, is rightly before the court. The only question then is, whether he has shown sufficient to entitle him to the relief asked for.

There are two grounds taken in the petition. First. That the names of a portion of the slaves purchased by him, as designated by his bill of sale from the commissioner, are not embraced and described in the decree under which he purchased. I think it is obvious that the names of the slaves which the petitioner says are not mentioned in the decree, are in fact there sufficiently described to leave no doubt that they are identically the same with those 'mentioned in the bill of sale. Although there is some variance between the description in the bill of sale and in the decree, yet I think it will be found to consist rather in the difference of spelling, and the addition or omission of surnames, than in fact. The slaves are described in the decree as Bob Chesser, Cooper, Merritt Prudence, George Ray, and Bill Gage. In the bill of sale as Bob Chism, Francis Cooper, Merritt, Ray, and Bill Gage. It will thus be seen that the names correspond, except that in one instrument they are described by two names, and in the other by one of those names only. The decree orders the sale generally of all the slaves mentioned in the mortgage, and then makes an attempt at describing them. The slaves bought by the defendant, as named in his bill of sale, are found to correspond with those named in the mortgage. If, therefore, there was even a total omission of the names in the descriptive part of the decree, I do not think that it would at all affect the petitioner’s title; id cerium est quod cerium potest reddi. The omission in the descriptive part of the decree amounts at most to a mere clerical misprison, which could be corrected at any time upon proper application. Tomlins v. Polke, 1 Russell 475.

The second ground taken in the petition is, that four of the slaves bought by him are not included in the bill of sale. I cannot admit that this renders his title defective, although the decree directs the commissioner to make a bill of sale. This is intended for the mere convenience of the purchaser, and is not an essential ingredient in his title. The commissioner acts as the mere agent of the court in selling. It would not be pretended that in a case between private parties where an agent was authorized to sell personal property and gave a bill of sale, that such bill of sale was indispensible to the purchaser’s title. In the sale of personal property the title passes by delivery; it is not necessary that it should be evidenced by writing. It would be perfectly competent for the petitioner to establish his title to these slaves by parol evidence connected with the decree and mortgage in the case. Although the court will always protect its purchaser in a fair exercise of his rights, yet it will not permit him to avoid the sale by formal or technical objections to the title. The objections here, as I understand them, are not that the petitioner did not obtain a title to the slaves by his purchase, but that the evidence of that title is irregular and defective. A purchaser at a judicial sale as in all others, claiming to be relieved, should make out a fair and plain case for relief; it is not every small defect or variation from the description of. the property sold, that will avail him. If he gets substantially what he contracted for, he must be satisfied. 2 Harris and Gill, 390.

I am accordingly of opinion that the supercedeas granted in this case be discharged.