#### C. S. Meng *vs.*Absalom Houser and William Steen.

*Service of Subpoena*— Waiver *of Irregularity*— Commis*sioner's Report*— Commissioner's *Sale*— Bill *for Foreclosure*— Practice—P *leadings.*

Defendant was served with subp'mna to answer by copy left at his residence— he being at the time, as alleged by him, in the military service of the State: *—Held,*that defendant (if the service'was irregular under the Act of 1811) had, by his subsequent acts and conduct, waived the irregularity.

"Where defendant is in the military service of the State, service of subpoena to answer by copy left at his residence is, it seems, valid.

A Commissioner’s report of his own acts in execution of an order must, he treated as true until the contraryjbe shown.

Where property is advertised by the Commissioner to he sold for cash, it is no variance for him to announce at the sale that payment will be received in United States treasury notes.

Where mortgaged property has been sold by the mortgagor to several purchasers, the mortgage is properly enforced primarily against the last purchaser.

Where A purchased land at a Commissioner’s sale under a decree for foreclosure, and then conveyed to B, the aid of the Court, by rule and attachment, to compel the defendant to deliver possession to B, was refused.

BEFORE OARROLL, OH., AT CHAMBERS, COLUMBIA, DECEMBER, 1866.

The decree of his Honor, the Chancellor, is as follows:

Carroll, Ch. The motion made in December last was to rescind the order of the Commissioner for an attachment against the defendant, William Steen. After argument, the Commissioner was directed to inquire and report whether, prior to the sale of the mortgaged premises on the ■ 5th November last, advertisement!of such sale was published, and how published, for twenty-one days, as required by the order of Chancellor Leseshe. The Commissioner’s report has been submitted. But previously to the motion before the Court being disposed of, a further motion is presented *211on behalf of the defendant, Steen. The motion last made is, in effect, that the rales granted by the Commissioner against Steen, the sale of the mortgaged property, the decree directing it, and the order *pro confesso,*be all set aside, and the defendant Steen be now admitted to answer, plead or demur, as he may be advised.

In support of the motions submitted, various grounds have been assumed. Service upon Steen of the subpoena to answer was made by leaving a copy of the writ at his place of residence. It is contended that Steen was not thereby lawfully served with process, because he was at that date in the actual military service of the State, and was for the time protected from suit by the Act of 1841. (11 Stat. 208.) Whether the Act conferred the immunity from suit which is claimed, need not be considered. The bill was filed in February, the subpoena served upon Steen in April, and the decree for foreclosure and sale made in June, of the year 1861. After an interval of five years, the order for sale was renewed on the 14th June, 1866, and the sale under that order was made on the 5th November, 1866. That Steen was aware of the suit appears by his own affidavit, in which he states, as to the service of the subpoena, *“*that, as he supposed the same null and void, he paid no- attention to it.” He does not state that he was absent from his residence either when the subpoena was served or the decree for foreclosure and sale made. According to the proof, the probability seems to be that he was at his dwelling in Union at both those dates. From the commencement of the suit until subsequently to the sale, he appears to have offered no opposition or objection to it at any of its stages. There was on his part not merely acquiescence in the proceeding, but distinct recognition of the decretal order made, and submission to it. It appears that he had frequent interviews with the plaintiff concerning the sale before it occurred, and as to the divi*212sion of the mortgaged premises into convenient parcels, so as to enhance the price. He was present at the sale, was one of the bidders, and actually purchased a portion of the mortgaged property. The purchasers of the other parcels of the mortgaged premises have paid the purchase-money to the Commissioner, and have received from him deeds of conveyance. More than that, the Commissioner, as he reports, has paid to H. E. Means, the assignee of the plaintiff, but not a party to the suit, more than $1,600 of the proceeds of the sale; “the defendant Steen,” says the report, “ having informed the Commissioner that he would surrender possession of the premises on the 1st January, 1867, and the Commissioner not supposing there would be any litigation in the matter.” Such acts and declarations on the part of Steen, with their necessary effect upon the other purchasers at the sale, and their actual influence over the Commissioner’s disposition of the bulk of its proceeds, may well be considered as constituting an equitable estoppel against any attempt by him to impeach the sale in question. It was at least competent for him to waive the irregularity complained of, if it existed, and he is regarded as having done so unequivocally.

What has been said of course disposes of the other and more direct objections made to the sale. But it may. not be amiss to suggest some additional considerations specially applicable to them.

In his report, the Commissioner states that notice of the sale was posted by himself, in person, upon the door of the court-house, for twenty-one days prior to the 5th November last, besides being published in three successive numbers of the local weekly newspaper. The advertisement is objected to — not as to the mode, but as to the time of its publication. A witness deposes to having seen the notice upon the court-house door before the day of sale, but does not remember how long before. When, in response to an *213order of the Court, the Commissioner submits a statement of his personal acts in the execution of a prior order, such statement, it is apprehended, must be treated as true until the contrary is shown. The presumption is that the officer has performed his duty. That presumption is here confirmed by the testimony adverted to, and no opposing evidence appears.

The mortgaged property was advertised to be sold for cash, and immediately before the sale it was announced that payment would be received in United States treasury notes. It is objected that cash means coin, and that the premises were therefore sold upon other terms than those specified in the advertisement of sale. It would be difficult to show that the term cash in the notice of sale was intended to mean or actually imported any thing else than ready money,in contradistinction to credit. That it does not mean coin when employed in an advertisement of sale is shown by the very case cited to sustain the objection, *{Farr*vs. *Sims,*Eich. Eq. Oases, 131.) If the Commissioner’s announcement, that payment would be received in United States treasury notes, was in reality a variance from the published terms of the sale, such variance was undoubtedly to the advantage of the defendant Steen, and the objection now made to it comes most ungraciously from him. In the Commissioner’s report it is stated that the announcement referred to was made at the instance and request of Steen himself, and it may be added that, in his written response, under oath, to the report, the defendant Steen has not ventured to deny that statement, but evades denial by saying that, *“*if the same was made, it was made in ignorance of his legal and equitable rights.” The proceeding by rule is said to be an appeal to the equitable discretion of the Court. If there is controversy as to the facts, or if the right of the party who is the actor be not clearly established, or if other persons not parties are interested, the Court will not *214interfere, but will leave tbe matter to be determined by formal suit. *{Key*vs. *Griffin,*1 Rich. Eq. 67.) It is manifest that what has been already performed under the decree cannot be undone in this proceeding. The larger part of the proceeds of the sale have passed into the hands of Means, the plaintiff’s assignee, who is no party to the suit, and is beyond the reach of any order that could be granted. If any order or decree avoiding the sale is to be made, he undoubtedly should be impleaded. The motions to set aside the services of the subpoena to answer and the sale of the mortgaged premises are refused. As to the matters of defence upon the merits, it is sufficient to say that they cannot be here considered. A decree of the Court can be opened only by petition for rehearing or by bill of review.

At the sale by the Commissioner, a part of the mortgaged property was purchased by Spencer M. Rice. Having paid the price, Rice received from the Commissioner a conveyance of the property purchased, and on the same day, as it appears, sold and conveyed it to D. A. Townsend. The defendant Steen refusing to yield possession of the premises, certain proceedings were had before the Commissioner, who, on the 29th of November last, and upon the motion of the solicitors of Townsend, made an order that Steen surrender the possession to Townsend within seven days, or in default thereof be attached. That order the defendant Steen contends was unauthorized, and his motion is that it be rescinded. When a sale is made under a decree, the purchaser, by the very act of purchase, submits himself to the jurisdiction of the Court as to all matters connected with such sale. (Sugd. Yend. 78.) Being thus a *quasi*party to the cause, he is admitted to move for such orders as may be necessary to defend, enforce and perfect Ms rights as purchaser. (Sugd. Yend. 72; 2 Dan. Pr. 1277, 1283-84.) This privilege is granted to enable the purchaser to have Ms contract of purchase made with the officer of the Court *215fully executed and completed. But it is not perceived that D. A. Townsend occupies a position that entitles him to any such standing in the Court. The contract of sale between Rice and the Commissioner must be regarded as fully performed. The price has been paid by the one party, and the deed of conveyance executed by the other. Rice has no claim to be let into possession, for he has transferred his entire interest to Townsend. The purpose of the Commissioner’s order for an attachment is not to complete the contract between himself and Rice, but to enforce a right springing out of another and subsequent contract of sale between Rice and Townsend, with which the Commissioner has no concern whatever; and the order is granted upon the motion and for the benefit of Townsend — a stranger to the first contract of sale, and not even a party to the cause. The judgment of the Court is that the order is erroneous, and should be rescinded; and it is so adjudged and decreed.

The defendant Steen appealed, on the grounds :

1. That the bill of foreclosure was informal and void, in this that it prayed for only a foreclosure of a part of the mortgaged premises, and that to advance the personal and individual interests of the mortgagee, the plaintiff, and as it was to the prejudice of the defendant, Wm. Steen.

• 2. Because the defendant, Wm. Steen, has never been legally made a party to these proceedings, he having been in the actual military service of the State at the time of the filing of the bill, and also at the time of the alleged service of the subpcena; and the said service and the order *pro corifesso*should, therefore, have been set aside, and the defendant permitted to appear and plead.

3. That the motion on the part of Wm. Steen requiring *216the complainant, Clough S. Meng, to amend bis bill by making A. L. Hunsucker and Dr. James E. Hix parties defendants, should have been granted, as they are necessary and indispensable parties.

4. Because tbe defendant, Wm. Steen, should be allowed compensation for all tbe improvements put upon tbe premises, be being a purchaser without actual notice.

5. Because tbe complainant, O. S. Meng, should be required to account for the sum of $1,787.17, received of Dr. James E. Hix, as tbe purchase-money of tbe Isaac E. Peak lot, a part of the mortgaged premises, being tbe part left out of bis bill of foreclosure.

6. Because tbe mortgaged premises were not legally advertised for twenty-one days, as required by tbe decretal order of Chancellor Lesesne, and tbe acts and declarations of tbe defendant, Wm. Steen, cannot cure that defect.

7. Because the sale was not made in accordance with tbe terms of tbe advertisement, thus causing a great sacrifice of tbe property of about fifty per cent.

8. Because tbe acts and declarations of tbe defendant, Wm. Steen, referred to in tbe proceedings and tbe decretal order of Chancellor Carroll, were done and made in utter ignorance of bis rights, and therefore cannot prejudice bis equitable claim to relief.

9. Because tbe report of tbe Commissioner, dated was not responsive to tbe order of Chancellor Carroll of tbe of December, 1866, but stated matters not called for and not referred to him for inquiry, and on which tbe Chancellor predicates bis decree.

*21710. Because tbe report of tbe sale of tbe mortgaged premises by tbe Commissioner not having been confirmed, the payment by tbe Commissioner of $1,600 to Henry E. Means, not a party to tbe suit, was done in bis (tbe Commissioner’s) own wrong, and cannot deprive tbe defendant, ¥m. Steen, of any of his legal and equitable rights, and, if necessary, bis Honor should have ordered him to be made a party. •

11. Because there is error in tbe decree in supposing there was any evidence by any witness to prove the premises bad been advertised twenty-one days before tbe sale, as tbe witness referred to (Davis Groudelock, Esq.) stated be could not say bow many days before tbe sale he saw the paper on tbe court-house door, and it was not pretended that tbe premises bad been thus advertised in any but one place, and tbe Commissioner was objected to as being incompetent to prove tbe advertisement, as be could not act as judge and witness at one and tbe same time, and tbe objection sustained, and not appealed from, but acquiesced in.

12. Because the defendant, Wm. Steen, cannot be deprived of bis freehold or land by bis parol declarations, and be cannot be required to prove tbe negative proposition, that bis land bad not been legally advertised for twenty-one days before tbe sale.

13. Because there are so many irregularities in the proceedings, and so many doubts and uncertainties in the whole matter, that the sale should be set aside, and a resale ordered, under a decree distinct and clear in all its terms as to the right of the purchaser to turn the defendant out, and as to what kind of money should be paid, so that those in attendance on the sale might be prepared to bid, so that *218justice and equity may be done to tbe defendant and his creditors and all concerned.

14. Because, from the further fact, that the bond for titles from A. L. Hunsucker to the defendant, Wm. Steen, who had purchased the premises of said A. L. Hunsucker, and paid him large amounts, and all Steen’s papers in reference to the said lot, at the time of the filing complainant’s bill, being then in the hands of Dawkins & Gadberry, complainant’s solicitors, and the same being now burned, as it is said, and the plaintiff, as mortgagee, being the trustee of Wm. Steen, the loss of his papers, thus occurring, is such an accident as would, in equity, entitle him to the relief he now asks of this honorable Court.

15. Because the Commissioner refused to hear evidence to prove Wm. Steen was in the Confederate army, or service of the State, at the time of the filing of the bill and supposed service of the subpoena; and also refused to hear evidence to prove that Steen had been, for much of the time, *non compos mentis,*and wholly unable to attend his business, and that the war and the stay laws show the cause of the delay, and the facts show that 0. S. Meng dared not to sue Wm. Steen while he was at home, but sued soon after he went into the army. Therefore, the defendant should be relieved.

D. A. Townsend also appealed from so much of the decree of the Chancellor as sets aside the order granted by the Commissioner, on the grounds:

1. Because, the defendant, Steen, in refusing to.surrender the possession of the mortgaged premises after the sale, was guilty of contempt of the Court, which subjected him to rule and attachment.

2. Because D. A. Townsend, as the vendee of the purchaser, was entitled to the aid of the Court to obtain pos*219session of the premises sold under the decree; and if not entitled to it as a matter of strict right, yet (it is respectfully submitted) the Court might have resorted to its process of attachment in this case without enlarging the established jurisdiction of the Court, and because that process is the usual mode of enforcing obedience to the decrees of the Court.

*Thomson, Shand,*for appellant, Steen.

*Arthur,*for Townsend.

*Groudeloch,*for plaintiff, Meng.

The opinion of the Court was delivered by

Dunkin, 0. J.

The Chancellor, for the reasons stated in his decree, deemed it unnecessary to consider whether the Act of 1841 conferred on the defendant, William Steen, immunity from suit. But the earnestness and ingenuity with which the second ground of appeal has been urged have induced further inquiry. At the time of the service of the subpoena to answer the bill, to wit, April 26, 1861, the residence of the defendant, Steen, was in Union village, and the service was effected by leaving a copy. The defendant was at that time a member of Captain Gadberry’s company, in the First regiment of South Carolina volunteers under Colonel Maxcy Gregg, then stationed near Charleston. This was not a corps created under any of the provisions of 'the Act of 1841, but was a regiment of volunteers organized under special resolutions of the Convention of 1860-61, and commanded by field officers, appointed as therein particularly directed.

But it is difficult to distinguish the terms of the Act of 1841 from those of the Act of 1794. In the provision for *220immunity from arrest, the later Aet is merely a transcript of the former. So far as may be inferred from previous judicial interpretation of the Act of 1794, the service here made was valid and not inconsistent with the immunity intended by the Act. In *Gregg*vs. Summers, 1 McC. 461, personal service on a defendant while on militia duty was set aside, and for the reasons there stated. But the Court add: “A writ may be served by being left at the most notorious place of defendant’s abode.”

The original order for foreclosure and sale was made June 11, 1861. The sale was not then made; and, in December following, the Act of the Legislature suspended' all orders for sale, -under decree, &c., until the same should be renewed in open Court, or at Chambers. At the sittings of the Court of Equity for Union, in June last, the previous order was recited, and the sale was directed to take place on the first Monday of August following. The sale was not made until 5 November. The Chancellor states, that, in the meantime, the defendant, Steen, “conferred with the plaintiff as to the division of the mortgaged premises into convenient parcels so as to enhance the price.” “ He was present at the sale, and purchased part of the property.” Other purchasers paid the purchase-money, received conveyances; and a large portion of the money has been paid to the plaintiff’s assignee. Late in December, the defendant submitted a motion to the Chancellor to set aside the decree of foreclosure and all the previous proceedings, principally on the ground of want of legal service of the subpoena. This Court is of opinion that the motion was properly dismissed.

The defendant’s first ground of appeal objects, that all the mortgaged premises were not included in the proceedings for foreclosure. If the defendant has any-equity against other parties, it should be made to appear (as indicated by the Chancellor) by the proper proceeding. But, so far as *221this Court can understand from tbe facts submitted by the defendant, the mortgage was properly enforced primarily against the last purchaser from the mortgagor. See *Clows*vs. *Dickerson,*5 John. Ch. 235. The other grounds of appeal are sufficiently met in the decree of the Chancellor; nor do the Court deem it necessary to add to the authorities cited by him for refusing the extraordinary aid of this Court to D. A. Townsend.

The appeal is dismissed.

■Wakdlaw and Inglis, J. J., concurred.

*Appeal dismissed.*