#### Trabue *vs*Ingles.

Error to the Bourbon Circuit.

Chancery.

*Case*20.

The case stated.

*Mortgages. Commissioner’s sales.*

*Oct.*1.

Judge Breok

delivered the opinion of the Court.

Ingles exhibited his bill in chancery for the foreclosure .of a mortgage executed to him by Trabue, upon real estate, to secure the payment of about four thousand dollars.

*83Decreo of the Circuit Court.

It is too lute to object, fot the first time, in this Court, to the use of papers as evidence, which are exhibited in the pleading» *84and read in the Court below without objeeil0n‘

*83Trabue resisted the claim upon the ground that the note and mortgage which he had given to Ingles, were in consideration of a decree which the heirs of Thomas Boone had obtained in the Circuit Court of the United States for the District of Kentucky against Baylor’s heirs, and which, or a portion thereof he, Trabue, had undertaken to pay ; that Ingles represented himself ds the agent of Boone’s heirs, and authorized to collect said decree, but that he believed and so charged, he had no such authority, and consequently, that the note and mortgage were executed without consideration. He made his answer a cross bill against Ingles and the heirs of Boone.

The Court, on final hearing, decreed a foreclosure of the mortgage, and a sale of the morlgaged estate. To reverse that decree Trabue prosecutes a writ of error.

Several errors are relied upon. The first we shall no‘ tice has reference to the fact of Ingles’ authority as the agent of Boone’s heirs, to collect their decree against Baylor’s heirs.

It appears that at the time Trabue gave his note and executed the mortgage to Ingles, the parties entered into a written agreement, by which Ingles bound himself to have the decree of Boone’s heirs referred to. satisfied to the extent that Trabue had undertaken by his note and mortgage to pay it. In this agreement Ingles is regarded as the agent of the heirs and the administrator of their ancestor, Thomas Boone. The endorsement by Trabue upon this agreement, acknowledging the fulfilment thereof on the part of Ingles, to *ilsfullest meaning and extent,*rendered unnecessary the production of any other proof as to the satisfaction of the decree in the Federal Court, to the extent stipulated in the agreement. It is also sufficient, in the entire absence of any testimony or circumstance tending to raise doubt or suspicion as to the agency of Ingels on behalf of Boone’s heirs, to render unnecessary further evidence in that behalf.

But if additional proof were requisite, what purported to be a copy of the decree of the Federal Court, by which the decree against Baylor’s heirs is satisfied and discharged according to the undertaking of Ingles, together with the answer of Boone's heirs, or most of them, to the *84cross' answer of Trabue, admitting the anthoiity aná agency of Ingles, should certainly, we think, be deemed satisfactory, although the powers of attorney from the ,. a , r , *, ' ,*heirs to ingles, may not have been so authenticated as to authorize their being, read. It is true objection is now made to the copy of the decree from the Federal Court as-incompetent, but the objection comes too late. It was-referred to as an exhibit by the complainant, and read-without objection in the Court below. But even without that, we think the testimony sufficient as to the authority and agency of Ingles and his compliance with all the stipulations in the agreement with Trabue.

ohjeot°°inateihU Court, for the first time, to an allowance made sioner for^elmortgage^where the allowance does not appear to be unreason»ble'

*forUie°ChMtcei*lor decreeing the sale of mortgaedlands, lo aumfssioner8 C°TMñ the terms of sale being complied with, to put the sess¡on8eandPfor use tlteUrwrU of *háberefacias*his action is subject to the control of pxoper¡Urt ^ *m"

2dly. It is urged that, as the first sale was set aside, it was erroneous to tax ihe defendant, Trabue, with the costs of that sale.

So far as regarded an allowance to lire Commissioner, if defect in the sale was the result of his fault, it. might have been proper to have withheld it, and no distinct ab 1 41 Jowance to him seems to have been made on that account, The allowance made the Commissioner for bis whole serv‘ces> we are not prepared to say was unreasonable, or that it would have been had there been but one sale, t> . , , . , , . , , . iiesides, *no*objection was made to it m tne Lourt below, and for (bat reason also, we should not be inclined *to*sustain objections to- it here.

3dly. It is contended that the decree is erroneous in authorizing the purchaser to sue out a writ of *habere facias possessionem,*for the premises sold under the decree.

The decree directs Ihe Commissioner after the terms of ^he sa^e are con,pRed with, to deliver possession of the premises sold at tire end of twenty days after the sale, . . . ,, , , . . „ . . and authorizes the purchaser to sue out his writ of *habere fMias possessionem,*at the expiration of that period, upon the Commissioner’s filing in the Clerk’s office his certifi- ° .... cate that the teims of sale have been complied with, The power of the Chancellor to put in possession the purchaser rea' estate under his decree, and for that purpose to direct the writ of *habere facias,*is not controvert' , , ....... . . ' . . , ed ; but it is insisted that it is irregular and erroneous to make the emanation of the writ, depend upon the certificate or report of the Commissioner j that it is vesting *85him with judicial powers to decide whether the terms of the sale have or have not been complied with by the. purchaser.

The time at chaser shalfrec.eivephepossessaIes under closed1,S1s to°be soond discretion °0frllie clianoel*

It is true the duties of the Commissioner are ministerial or executive, and we do not perceive that other duties are imposed upon him by the decree in this case. He is directed to make sale of the estate, and when sold as directed, to put the purchaser in possession. As a means of accomplishing so much of his duty as requires him to put the purchaser in possession, the writ of *habere facias*is directed to issue. The Commissioner, it is true, may not strictly pursue the directions of the decree in making the sale, and the Court may afterwards set it aside. But the power of the Court to control the whole action of its Commissioner, to confirm or vacate the sale made by him. or award restitution of the possession of the premises sold, so far from constituting any valid reason or objection to that portion of the decree complained of, is in truth a sufficient protection against any injury that may possibly result from it. The Commissioner is the officer of the Court, and the presumption should be indulged, that he will do his duty in the execution of the decree. But we cannot, as contended, regard the portion of the decree under consideration as unjust or oppressive’ upon the defendant, or as introducing a dangerous rule of chancery practice.

The defendant, by the decree *nisi,*had six months’ notice that unless he paid the amount decreed the complainant, the mortgaged estate would be subjected to sale.

The time when a mortgagee should be decreed to surrender possession in case of a sale, is in the discretion of the Chancellor, and would depend upon the nature of the estate and the season of (he year when sold. In this case the estate was a farm or plantation, and the decree directing a sale, was rendered in November. We perceive no objection, therefore, as to the time within which, after the sale, the possession was to be surrendered.

The mortgagee as well as the mortgagor, was interest, ed in having the sale made upon such terms as to leave no doubt in regard to the time when the purchaser was to obtain the possession. If left with the mortgagee to with*86hold it till after a subsequent term of the Court, and per-baps a protracted controversy in regard 'to the validity of the sale, for the mere purpose of delay, ‘the-sale would be thereby affected, and probably to the prejudice of both parlies.'

*Trimble*for plaintiff: *Hawes*<£• *Williams*for defendant.

It seems to us, therefore, that there was no injustice or hardship in requiring the defendant to surrender possession as directed in the decree, and upon his failure, that there was no impropriety in authorizing the purchaser to sue out his writ of *hohere facias.*As a rule of chancery practice in a case like this, we are *not,*as at present advised, inclined to condemn it.

Some other objections are urged to the decree, which are deemed unavailable, and not necessary to be noticed.

Wherefore, the decree is affirmed.