Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1861-05-25
DECISIONS OF THE SUPREME COURT
OFFICIAL.

DECISIONS OF THE SUPREME COURT
OFFICIAL.
Stale o. Tsnas S sapa az NsssVille, De-
cember Term, 1860.
Wood vs.. Chilcoat.
This bill was filed to enjsin the prosecution o.
an action of ejectment and to divest the title oU
of Chilcoat to the land saed for. 1t appears thai
as the property of the complainant, Woody was
levied on and sold to satisfy justices execution
for the sum of Sl56.69, together with cost, in
favor of McPhail, against one ID. S. Hobbs and
principal, L. d. Atkins, as surety, and the defend
ant Chilcoat, as stayor, upon the assumption that
the land was, in law, liable for the debt Of
Hobbs.
The sale took place on the 9th of September
1855, and Atkins, one of the defendants in the
judgment, became the purchaser. The proof
clearly establishes, that in truth, the land was
struck off by the Sheriff. TO Atkins, who was the
highest and last bidder, st the price of $50 90
But after the sale, whether the same day Of the
SALE or subsequent day, is left in doubt from the
pro0f1 Atkins advanced his bid to the full amount
Of the judgement and cost for which the land
was cold. For this, however, no authority is
shown in the. record and the sheriff, in his re
turn of sale, states that Atkins bid the sum of
SlSl.05, and that being the highest and best bid,
the land was struck off to him."
The Sherif7s receipt, accompanying his return,
also states, that said sum of SlS105, was paid by
Atkins and Chilcoat. defendants. This return of
the Sheriff. however, is dated the 9Th of October
six days after the day of sale.
The proof clearly establishes that the return OF
the Sheriff il incorrect, and that the land was
really struck of to Atkins, at fifty dollars, as be
fore stated
More than two years after the SALE namely, on
the 10th of October, 1857, Sherifs deed was exc
cuted for said land, to Atkins and defendant Chill.
coat jointly by the direction of Atkins by the
cessor of the Sheriff, who made the sale. The &C
ton of ejecteent, sought to be enjoined was then
brought against complainant, for the recovery of
possession of the land, on a joint demise in the
names of Atkins and defendant Chilcoat
Shortly afterwards, to wit: on the I'd of June,
1885, compromise was made between the COM
plainant and Atkins. Atkins, by deed, recsnyeyed
all his right title, claim and interest in the land
acquired by his purchase at the Sheriff sale back
to the complainant for the consideration of seventy
five dollars In said deed it is recited that Atkins pur
chased the land at the execution sale for the sum of
fifty dollars, and dter1oards the bid on the same
was raised" by him and Chilcoat On the day of
the execution Of said deed, instrument under the
hands and seals Of complainant and Atkins was also
executed by the terms Of which the pending action
of ejectment was to be dismissed each one of said
parties agreeing to pay one half OF the costs OF suit
In pursuance of this agreement, 8 motion was made
in the Circuit Court to dismiss the action, but the
iustment interposed, and upon his objection, the
Court refused to dismiss the suit and thereupon the
present bill was filed.
In addition to the foregoing facts it is alleged that
the land not subject to seizure and sale; on the
property of Hobbs this assumption Is based upon
the following state of facts On the 18th November
1867, the complainant purchased the land from said
Hobbs, and took a conveyance from him for the
same. But this deed of conveyance was not regis
tered until the 9Th of April 1855, the day which
Al, l., 1au &c Tf
compainant's deed was handed to the register, and
noted for registration on his book at 10 minutes
past o'closz p. NJ, the 9th April, 1885, and the
officers rem of the levy, upon the execution.
shows that it was made at O'Clock, P. NJ, on the
same day.
1t was attempted, by parol evidence, to dsprove
the truth of the officers action TO the time of the
levy and to establish that in fact the levy not
complete until after the notation of complainants
deed in the Registers office.
We need not enter into any discussion of this
point of the case inasmuch if it were admissible
to contradict the cfcers return; in case ike the
present the proof does not sustain the assumption
of the bill and furthermore this matter, if availa-
Bile at all would be so at law and Is therefore pnt
aside by the demurrer 20 the BILL
The question to be considered is, whether Chill
coat can be regarded, in equity, having acquired
any interest in the land, against the complainant
by the mere force of the Sheriffs deed, conveying
1t to him and Atkins jointly.
We have seen that the sale was made to Atkins
alone. Chllcoat was not present. indeed. the proof
shows that he was beyond the limits of this State at
the time of the sale
We have also seen that, in fact, fifty dollars was
the true consideration of the sale. Now, the first
question is, was the advance made by Atkins, from
$50 to SlSI05, authorized by law so to be bind
ing on the complainant? We think not. By the act
of 1912. ch 6, sec. 6, 1t is provided that where
bona fds creditor of the Judgment debtor "shall
become a purchaser of any real estate at execu-
ton other SALE he may at any tine within tWen
ty days after such sale, make an advance On his
bid" &c.
But this right is given only to bona tide creditor
of the person whose land IS Sold; for, by the last
clause of the ninth section it is expressly declared
that "n no case shall the holder claimant (of the
land sold) increase his bid against the debOr any
bona fde creditor offering to redeem the real es-
tate except as provided in this act Code, sec.
2l27, 21321
1t is clear, therefore, that the advance upon his
bid subsequently made by Atkins, (whO not a
creditor either of Hobbs or of the complainant
was in violation of law and fraud on the right
of redemption and consequently, no legal right can
grow out of it. The objection that the Sherif's re-
turn of the fact that Atkins IBID the sum of SlSl 05
and that the land struck off to him al that
price, cannot be collaterally impeached or contra
dicted, is not tenable. This principle can have no
application especially in equity, where the act Of
the officer constituting the return were ndIG fds
or in violation of law, beyond the scope Of his
official duty, in the particular case.
There can be no doubt that, upon bill to re-
deem, the complainant might have impeached the
truth of the return of sale, and have shown by pa
rol evidence, that the fact otherwise. And it
clear, that, upon an application to redeem, by the
complainant Atkins could have demanded nothing
more than the fifty dollars and the interest there
on. The advance being under the circumstances,
a fraud upon the rights of complainant. This being
the legal result as to Akins what right did the de-
PENDANT Chilcoat, acquire by the Sherif's conveys
ance subsequently made to him and Atkins jointly?
1t may be conceded that, in so far as Akins &C,
qured legal right to the land, by hi2 purchase at
the execution sale he might transfer that right to
another. in whole, or in part, and empower the
Sheriff to convey the title accordingly And it
might further be conceded that behoVeen tsEaSslveS
the SherifTs deed to them jointly, made by the di
rectinn OF Atkins, was operative TO make Chileoat,
(whO paid an equal part OF the Slal.oal owner of
moiety of the land.
But it Is obvious, that, against the complainant.
Atkins could confer upon another, no greater right
than he has himself acquired by his purchase; so
that Chcoat must be regarded as standing precisely
in the shoes of Atkins, under whom alone be derives
whatever right he may be held to possess. Upon 8
bill to redeem, the question would have been exact
ly the same, against boh as against Atkins alone.
But it Is said that the complainant having forfeited
all right of redemption by failing to redeem within
the two years given by law, cannot be now heard to
make any objection to the validity of defendants
title to moiety and the land. gha % certainly a
plausible difficulty, but net en- ins1perable one II
is true the complainant did not offer to redeem the
land within two years, so far as the record shows
and in the absence of fraud in the transaction and
the subsequent voluntary reeonyeyance by Atkins.
the argument for the defendant would be unsasweT-
ahle.
But the advance by Akina, to Eiore than thrice
the amount actually bid by him, for the land was
gross fraud, both in law and in fact upon the COM
pIainant's right and redemption; and with the in
in this fraud the defendant Chilcoat became an ac-
compice, by his subsequent acts
Now, whether or not, all other considerations
aslde the complainant could have awaited himself
of this fraud after the expiration of the time for