Henry Tooley, Jr. v. James K. Kane, et al., 1 Miss. (S. & M. Ch.) 518

CkaNoellor. The complainant shows, in substance, by his bill, that he obtained a decree in the Circuit Court of Adams county, to foreclose a mortgage against Horace Gridley, upon a lot in the city of Natchez. The decree was placed in the hands of an officer, who sold the lot to the defendant, Kane, made him a deed therefor, and took from Kane a bond for the payment of the purchase-money, with the defendants, Little and Mackin, as sureties.

The bond was returned, and payment not being made thereon at maturity, was forfeited, and thereupon, an execution of fieri facias issued against the obligors therein, according to the provisions of the statute upon that subject.

This execution was levied upon the lot aforesaid, and other property of the defendant, Kane, which were afterwards sold, under a venditioni exponas; that the defendant, M’Master, became the ostensible purchaser of said lot; that Tooley moved, at the return term of the vendi. expo., to have the money made thereon applied to the satisfaction of his debt, but this motion was overruled, and the money otherwise applied ; that another execution was issued and levied on the property of the defendant, Mackin, which was advertised, and sold in part to complainant, who receipted, on that execution, for the property by him purchased, to the amount of $1635 ; that this execution, on the motion of Mackin, was subsequently quashed, on the ground that there was no judgment to support it; that .the commissioner, executing the decree, made no report of the manner of executing the same, nor was there any order confirming his proceedings in the premises.

It is charged that Kane was not a bona, fide purchaser of the mortgage lot; that he paid nothing for it; that the fi. fa. under which M’Master purchased was void, there being no judgment to sustain it; that M’Master was a clerk of Kane ; that he paid Ho money for the lot, or, if he did, that it was the money of Kane ; that Kane still retained the possession of the lot; and that M’Master made a fraudulent sale to the defendant, Lacoste.

Complainant insists, that his mortgage still retains its lien upon the lot, and prays that the sale thereof to Kane, from Kane to M’Master, and from him to Lacoste, may be set aside, and declared fraudulent, and that a resale thereof way be ordered, under the original decree ; that all proceedings under that decree be set aside, and that the decree be regularly enforced, and for a certiorari, if necessary, to remove the case from the Circuit Court, and for general relief. To this bill the defendants have filed a joint demurrer.

Thé' only, point made by the demurrer, which I deem it necessary to notice, is that which questions the power of this Court over a case situated like that stated by the complainant’s bill. The constitution of this State has conferred, through the legislature, upon the circuit courts, concurrent jurisdiction with this Court, for the foreclosure of mortgages, and their power in that particular must be regarded as coextensive with the powers of the Superior Court of Chancery.

In giving this jurisdiction, it was doubtless the purpose of the constitution to afford a remedy that should be adequate to the attainment of the ends of justice, and to place at the command of these courts all the principles and. rules of practice, which belong to a proceeding to foreclose a mortgage. Under decrees of foreclosure and sale, the Court designates some one as an officer, to execute the decree, by making sale of the mortgaged premises, whose acts in the case are to be reported, for the consideration of the Court.

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, as the law and justice of the case may require.

Even after the confirmation of a reported sale, if it appear 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 resale, upon petition, for that purpose. Robertson v. Haun, Freeman, Ch. R. 270.

In this case, there having been no formal report by the commissioner, and no act of the Court, recognizing and confirming his acts in the premises, the whole case rests in fieri, before the Circuit Court; and the sale under the mortgage, as well as the sale under the execution on the bond, were under the power and control of that court, subject, as we have seen, to be set aside or confirmed, according as the law or justice of the case required.

But it was said, that supposing the sales to Kane and to M’Master to be under the control of the Circuit Court; that the sale from M’Master to Lacoste would still remain in the way of enforcing the decree ; and that the Circuit Court has no power to set aside that sale.

To this it may be answered, that as the decree, foreclosing the mortgage, still remained, in legal contemplation, open and unexecuted, Lacoste is to be regarded as a purchaser pendente lite, and consequently acquired no claim to hold the lot, against the decree, which is equally as binding and conclusive against him as against the mortgagor. 11 Ves. jun. 197 ; 2 Ves. and Beames, 200.

I do not, therefore, perceive the necessity of filing a bill to enforce the decree in this case ; but if such necessity existed, I cannot doubt, that the power would rightly belong to the Circuit Court; it would not be assuming a new ground of jurisdiction, but exercising a power incidental to the jurisdiction over the original bill. It may be laid down as a general rule, that every court has the power to enforce its own orders, judgments, or decrees. I am, accordingly, of opinion, that the demurrer should be sustained, and the bill dismissed.