State journal & flag., 1846-12-25
VOLUME A..

sale under execution OF an equity of redemp
ton, the reason must be the same when i
has been decided that such Is the law with
out any statute.
1t is said by the District Judge in thi,
report written out by himself, that tho Su-
preme Court of Alabama in Williams and
Battle Us. Jones have cited no authority in
support of their position. This probably
proceeded from the fact, that the objection
here stated was not made, and such would
seem to be the fact from the report OF the
case; but it is matter of history, known 10
all practicing lawyers. that from the decls
sion of the case of McGregor and Darling,
as explained afterwards in Perkins and FL
liottr S. Mayfield. the opinion of the bar has
been, that it applied equally to deeds of
trust, as to mortgages; and the only qpes
ton about which the Court in Williams g.
Battle, Us. Jones, appears to have felt any
difficulty, was, whether they should abide
by the previous decisions, or for the reas>
ons SO orcibly stated by them depart from
them. Il appears TO me, that the criticism
of the District Judge, if not in bad taste. is
wanting in the respect which courts usually
extend towards each other when difference
of opinion, was at least entirely unnecessa-
~. He had cited decision of the Uni-
ted States Court, which he considered con-
elusive authority against the doctrine asset
ted in McGregor & Darling rs. Hall, aud ii
was therefore matter of perfect indlffer-
ence, whe,herW illiams & Battle Us. Jones,
was correctly decided or rot.
The court in the decision of the last Use.
did not attempt to derive any aid from the
fact, that it was sale of the interest of
grantor in deed of trust, but assuming ii
to be identical with the sale of an equity Of
redemption, and lamening that such de-
c;sion had been made, simply acquiesced in
it, and gave effect to the law as established
by their predecessors. The conclusion
then is inevitable, that the structures of the
District Judge were wholly uncalled for.
and unnecessary to the determination of
the cause before him. The effect however
is to weaken the influence oc the State tri-
bunals, and 10 bring The administration Of
justice into contempt.
In fact he seems to have entirely misnp
pretended the decisions Of the Supreme
Court of Alabama. He reasons lis if he
supposed the effect of a sale under execu-
tion against the mortgagor, was TO annul the
mortgage and vest in the purchaser, moi
only the equity OF redemption, but the inte
rest Of the mortgage Invested of the lien.
The Supreme Court decided no such thing.
but are explicit in saying, that the purcha-
ser may become substituted 10 the moriga-
,ubt nd m, nd
estate occupy his situation.
Having determined that the bonds were
mortgages; and the Decatur Bank had no.
tice of their existence, decree of forecIo-
sure followed as a matter of course. The
criticisms upon the decisions of The Su-
preme Court, were then wholly gratuitous,
and such departure from judicial dignity
and proprety, must find its apology in
misapprehension by him oil the decisions he
assa,s.
The evil ofhaving different rules Of de.
cison, between the Federal and State
Courts, 10 the same State, as to the kind or
title of property, which should be subject to
sale by execution is so apparent, that ii
would seem to be the duty of the Federal
Courts, when rule has been promulgated
by the highest State Courts. and long acqui.
esced in, TO abide by it, though its correct.
ness were doubtful; as it would have the
same sanction and title TO respect, as a stat.
ute Of the State, which would be clearly
obligatory on the Federal Judge. 1t is also
worthy Of consideration, whether the point
decided in McGregor q Darling Us. Hall, is
not construction of the act of 1920 for.
bidding the sale of equitable titles. and there
fore conclusive upon the Federal Court.
But if am mistaken in this, il appears to
me. that suitors in the Federal Courr, have
the right to expect, that the adjudications
of the highest court of the State, in which
the cause is pending, should not be nverrul-
ed and disregarded, upon the authority Of
decision, of primary court OF another Slate,
which if coming in conflict with the appel
late court of the State in which ii was made,
could not be regarded at all.
In thus speaking of the late Chancellor
Of Mississippi, do so with great respect.
Whilst living, esteemed him as lawyer OF
no ordinary pretensious, and now that he is
dead, would abate nothing from his mer-
its. He had vast amount Of labor to
perform, and had not The time TO devote TO
the investigation Of the causes before him,
to enable him to do himself full Justice. Still
less would | be willing to depreciate the
high attanmenls Of the District Judge If
they were much less than they are, the in.
stlcts ofmy nature would prompt me to rem
der respect to age, and station. But
would respectfully suggest to him, that uni.
iormity OF decision between the different
courts of the same State. both State and
Federal. is matter of great moment to the
people OF the State, and that this should moi
be sacrificed, either from pride OF opinion
or the ostentaiious desire Of the display Of
superior knowledge. by seeking opporuni.
ties of putting the State court in the wrong
And may also be allowed 10 say, that al
lawyers, and especially Judges, should LEAF n
that the law like all other sciences is progress
sing. and that although general principle,
remain unchanged, their application must
and will be modified, according to the chan
ges, necessities, and improven ents of socie
~. The tendency of the decisions of the
Supreme Court of Alabama, like those o
the English, and American Courts general.
Iy. is to lendlan unfavorable ear 10 offences
which enbarrass the administration of jus
tice, and are not altogether compatible with
sound morality. 1t has been my purpose
l. Al