# Gray v. Brignardello

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United States Supreme Court
68 U.S. 627
Gray v. Brignardello
2. A decree nunc pro tunc is always admissible where a decree was ordered or intended to be entered, and was omitted to be entered only by the inadvertence of the court; but a decree which was not actually meant to be made in a final form, cannot be entered in that shape nunc pro tunc in order to give validity to an act done by a judicial officer under a supposition that the decree was final instead of interlocutory.
IN July, 1853, Franklin C. Gray, of California, died in the State of New York, leaving there a widow, Matilda, and an infant daughter, Franklina, and property held in his name, in California, appraised at $237,000. In January, 1854, administration was granted to J. C. Palmer and C. J. Eaton. In February, 1854, William H. Gray, a brother of deceased, filed a bill in chancery in one of the State courts of California, to wit, the District Court of the Fourth Judicial District, against Palmer, Eaton, the widow, and infant daughter (service on the infant, then residing with her mother in Brooklyn, New York, being made by advertisement in a California newspaper, and one H. S. Foote being appointed by the court her guardian ad litem), alleging a partnership between him and the deceased in his lifetime. In April, 1855, Eaton, who had now resigned his administratorship, commenced a similar suit against his late co-administrator Palmer, but not at this time making William H. Gray a party. In October, 1855, these two suits were consolidated by consent of parties, and on the 27th October, 1855, a decree was entered by consent, the fact of consent, however, not being stated in the decree itself. The decree adjudged that a partnership existed between Eaton and the deceased, and a different partnership between William H. Gray and the deceased, each partnership embracing all business and all property, real and personal, of the parties, and decided that the partnership of William H. Gray was subject to that of Eaton; it further settled the proportionate interest of each partner, and directed an account of the partnership transactions to be taken by a certain James D. Thornton, who was appointed a commissioner for that purpose, and that he should make a report of his actings and doings. The decree proceeded further in these words:
'And the court doth further decree, that the commissioner, after he shall have made such reports as aforesaid, and the same shall have been passed upon by the court, and in accordance with such further directins in this behalf, if any, which the court may give him, do proceed to sell, as in sales under execution, all the property, real and personal of the said partnerships, both or either of them, of whatever name or nature, for cash.'
In pursuance of the directions of this decree, the commissioner made a report on the 25th of March, 1856, and this report being still unconfirmed, he proceeded to sell the decedent's property, and, on the 3d May, 1856, sold a lot in San Francisco to a certain Brignardello, for $19,040. The sale was public; every way fair, apparently, so far as concerned Brignardello. The price was a very good one, and it had been paid. The commissioner subsequently, May 14, 1856, made a report to the court of his sale, stating that he had 'sold the real estate ordered to be sold by the decree pronounced on the 27th October, 1855.' The whole proceeds amounted to about $70,000.
It will be observed that the decree above set forth contemplated, apparently, a sale only after the commissioner should have made a report, and the same had been passed on by the court. This circumstance appeared to have struck some of the parties concerned, and the record brought up to this c urt disclosed the following further proceedings in court, dated eleven days after the sale; and the only further proceedings which it did disclose. They read thus: DECREE AMENDING INTERLOCUTORY DECREE.
W. H. Gray
v.
J. C. Palmer, adm'r of F. C. Gray, dec'd, et als., and
C. J. Eaton
v.
J. C. Palmer, adm'r of F. C. Gray, dec'd, et al.
On this day came the several parties, Palmer and defendant, by their respective attorneys, and it appearing to the court that copies of the rule to show cause made on the 10th day of May, 1856, and of the affidavit on which said rule was founded, have been duly served on the respective attorneys of the several defendants, and on H. S. Foote, guardian ad litem for the infant defendant, and the said defendants having shown no cause why the motion of said W. H. Gray, to amend the interlocutory decree entered in the above causes on the 7th day of April, 1856, should not be granted, and the court being satisfied that said interlocutory decree and that said error was the result of a mistake and inadvertence on the part of the attorney who drew up the same: It is ordered that the motion of the said W. H. Gray to amend said interlocutory decree, so as to make the same conform to the original decree and to the commissioner's report filed herein, on the 25th day of March, 1856, be and the same is hereby granted.
And ordered, on motion of said W. H. Gray, that the following amended interlocutory decree be entered nunc pro tunc, in lieu of the said decree which was entered on the 7th of April, 1856, to wit:
Same Parties
v. Same Parties.
James D. Thornton, the commissioner, appointed, &c., having filed his report herein on the 25th day of March, 1856, it is hereby ordered, that the said report be, and the same is hereby confirmed; and it is further ordered, that said commissioner do proceed to sell all the property, real and personal, of the said partnership, as directed in the former decree of the court, and to receive the proceeds, out of which he shall pay the costs and expenses of this suit, and the remainder shall be paid and distributed to the several parties according to their respective rights, &c. But it is ordered, that before making said distribution, &c., commissioner report to this court his proceedings in the premises and the amount in his hands subject to such distribution, and the several interests of the respective parties therein upon the basis settled in his former report.
Indorsed: Filed May 14, 1856.
The result of all the sales, payments, and other proceedings in the business was, that the property, real and personal, of the decedent, was wholly absorbed, and the estate left in debt to the surviving brother, William H. Gray, in a sum of $3533.17; there not having in fact been enough of the estate of $237,000 left to pay for a tombstone that had been erected to the Gray deceased; and $900, or thereabouts, being, by common consent of parties, appropriated to that purpose, and made 'a charge upon the estate generally.'
The widow now conceiving that the proceedings had been collusive and irregular, took an appeal from the decrees obtained by Eaton, as also by Gray, against her husband's estate. This was about six months after the sale. On the hearing of the appeal, the decree was reversed in the case of Eaton's bill, as to the infant, on the ground that she being in New York, had not been sufficiently served by a publication in California, and in the case of W. H. Gray's bill, as to all the defendants, because the proof was not sufficient to establish a partnership.
Brignardello and others being in possession, however, under his purchase, the widow and infant daughter, joining in their action, now brought ejectment in the Circuit Court of the United States for the Northern District of California, the suit on which the writs of error now here were taken.
The title of Gray, the decedent, being undisputed, and the land aving passed by his death, intestate, under the laws of California, to his widow and child, in equal shares, a prim a facie title was made in favor of the plaintiff. In order to defeat this title the defendants set up that they were bon a fide purchasers, at a judicial sale under decree of a court having jurisdiction, putting in evidence the judicial proceedings already mentioned. Various objections, on the other hand, were set up to the validity of the proceedings prior to the rendition of the decree, as e. g. that the infant, being in New York, was not properly served with process by a publication made in California. The court below charged that the infant was not served, nor brought into court; that the judgment-roll in the consolidated action was no record as to her; and that the deed of Thornton the commissioner was void as to her, and this notwithstanding that the purchasers were innocent purchasers, for full price and at a sale fairly conducted; but it charged also-this instruction being specifically excepted to-that the decree did operate to divest the title of the widow. Judgment was accordingly entered in favor of the infant for an undivided moiety of the lot, and against the widow as to the other half; such several judgment being permitted by the rules and practice of the court. Two writs of error were now sued out; one by Brignardello and others, the defendants below (case No. 169 upon the docket); the other by the widow, Matilda C. Gray, one of the plaintiffs (case No. 223). The points raised here were the correctness of the judgment, as above stated.
Mr. Galpin, for the widow and infant, relied on several grounds taken in the court below against the validity of the proceedings, prior to the rendering of the judgments in the equity suits. He also contended,
1. That the decree of sale, having been reversed for not serving the infant, and for error, the sale fell with the decree by which it was supported. The general doctrine, that 'the judgment may be reversed for error, but the authority of the writ [of sale] stands, for it is distinct from that of the judgment,' was not denied; but it was contended that the present case was peculiar. Here, on appeal, it was declared that no partnership had ever existed. Every semblance of authority to sell was thus carried away. There was not a 'distinct authority' existing after reversal of a judgment, but an annihilation of any semblance of 'authority' for what had been done. The case thus fell within the authority of the New York case, Wambaugh v. Gates. On a reversal upon a bill of review, indeed, the title of the purchaser is not lost; because a bill of review commences a new action, and a different one from that in which the decree was rendered. But an appeal is part of the same action, in which and out of which the title grew, and the action is not terminated until the appeal is determined. Having bought prior to that determination, the purchaser bought pendente lite, and took subject to the result of the appeal.
2. There was no existing authority to sell when the sale was made, and no subsequent proceeding mentioned in the record shows an authority that acted retrospectively, even if such authority could be given, which it could not be. Can an illegal act, done without any authority, be supported by a subsequently made but antedated direction? If so, a sheriff may take one's property or life, in advance of the verdict, and find his authority in a subsequent execution or sentence, entered nunc pro tunc, as of the day of trial.
Mr. Carlisle, contra, and after replying to the grounds taken by the other side as to the validity of the proceedings in the equity suits prior to the order of sale:
1. There is no suggestion of fraud on the part of the purchaser. The sale was public and fair; the price more than full; and havin been made while the decree was in force, the purchaser's rights are not affected by a reversal. This ancient and generally settled principle of law is acknowledged in this court, and in the courts of California alike. It must be settled everywhere, as well for the interests of heirs and debtors as of purchasers themselves. No man would buy or bid at a judicial sale, if he was to lose the land because of the subsequent reversal of the judgment.
Acts done under even a fraudulent judgment, so far as they affect third persons, are valid.
2. That part of the record dated May 14, 1856, shows that there was a power to make the sale. From the recitals in that part it may be inferred that the court did, on the 7th April, 1856, make an order of sale, and that the omission to put it in proper form 'was the result of a mistake and inadvertence on the part of the attorney who drew up the same.' An entry nunc pro tunc is accordingly made, and the sale is validated. The recital of record, that a decree was entered on the 7th April, 1856, is sufficient evidence that one was made; though it may not appear in the record brought up.
Mr. Justice DAVIS delivered the opinion of the court.

## Notes

* ↑ 9 California, 616.
* ↑ 4 Selden, 138.
* ↑ Fenno v. Dickinson, 4 Denio, 84; Traver v. Nichols, 7 Wendell, 434.
* ↑ Grignon v. 2 Astor, 2 Howard, 340; United States v. Nourse, 9 Peters, 8; Reynolds v. Harris, 14 California, 667; Farmer v. Rogers, 10 Id., 335.
* ↑ Sims v. Slacum, 3 Cranch, 300; Blight v. Tobin, 7 Monroe, 619.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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