Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-11


causes, determining the principles in.
volved, and ordering anaccount, or a sale,
or partition, before the account is taken,
or the sale Or partition is made; or be
may allow such appeal on overriding q
demurrer; or he may allow any party to
appeal from decree which settles his
right, although the case may not be dis
posed of as to others" a. Te
| Whatever mayshave been the previous
decisions of this and other courts, it is
manifest, from the very terms of this
section, that, in the view of the Legisla-
ture, which enacted the Code, DEGREES or
deTing accounts, partitions and sales,
were not final, and that it requirtd special
Legislation to authorize an appeal before
the reports were made and the case final
y disposed of. 1t is not obligatory upon
us TO consider the cases determined in
other courts, or to review our own cases,
before the Code. 1t is sufficient to de-
clare that in our opinion, the intention of
the Legislature was to allow the appeal as
matter of right when the last decree is
pronounced in cause in the court below,
and as matter of favor, In the cases
specified in 5 3,157, and that, in the case
before US, the right existed, when the de-
cree was pronounced on the 18th Decem-
Der, 1867, and the appeal then granted
brings up the entire cause. This question
has been also considered, at the present
term, in the cases of Mathes vs. Meek Sc
Simpson and Harrison & Brothers vs..
Farnsworth, and its further discussion is
not demanded by the facts of this case.
Without declaring any opinion upon
the questions raised, ia argument, as 10
the validity of the levy, the mode Of adj
vertising the second sale, and the pIopri-
ETY. of selling without the right of re-
dempticn; and without considering what
was the effect, if any, of the leave grant,
ed, on the application of compliments,
to file an amended and supplemental bill,
ten months after the second sale occurred;
of their failure to file it; and of their de-
lay, for twenty-One months, after the
sale, to obtain decree of Confirmation,
We. cannot ignore the strong statements
made in the affidavit of w. ID. McGin-
ley. 1t might, perhaps, have been more
regular to present the matters contained
in that affidavit, in a petition for re-hear-
ing, but in reviewing the action of the
Chancellor, we must consider the case
just as it was presented to him; and, in
this view, it appears that, after the decree
of continuation was pronounced but be-
fore it was entered of record, the amount
due complainants was rendered
to their attorney, and, on this ground,
the confirmation of the sale was opposed
and the Chancellor was requested, but
refused, to set the sale aside. There can
be no question that the decree was per-
fectly within the control of the Chaucel-
lor. It had not been entered of record,
and if it had been so entered he could,
upon good cause shown, or even if he had
changed his own opinion, have set it aside
at any time during the term. See Tim
mons VS.. Garrison, Hum, 100. The
purchaser, at the time the affidavit was
presented, had no title to the land. By
the act of purchase, he had submitted
himself to the jurisdiction of the court
as to all matters connected with the char
scter If purchase. Calvert on Parties in
Eg. 81, 62, NJ. 10 Law Lib. BE could
have been relieved of his bid upon a pro-
per applications; and, if such were the
fact, might have shown that no title could |
be communicated to him. His contract |
was not complete until confirmation of |
the sale, and even then the title was not |
vested in him, and the sale only was COM
pleted. Such would have been the legal |
effect of the decree of confirmation if it |
had been regularly entered and the term !
had passed without any objection or op- |
position. But while the term continued, |
and so long as the confirmation was in |
allegiance, we hold that it was within the |
power of the defendants, or either of /
them, to prevent the confirmation by sat |
isfying the amount of the decree against I
them with interest and costs. Regularly
they should have paid, or offered to pay,
the money into court; or should, at least,
have deposited it in court TO await the
result of the litigation. But, according to
the statement of the affidavit, the defend
ants and their counsel were "throWn off
their guard" by the premise made by
solicitor to receive the
money, and had no knowledge of the in
tention to take a decree until they were
it had been pronounced From
that appears in the record, the
of compliments attorney to re-
ceive the amount of their debt had not |
been revoked, nor had be ceased to act in
that character. The defendants and their |
counsel had been lulled into security and |
relied upon the promise which had been
made; and we hold that, under che cir
the Chancellor should have
the payment of the money
into court, and should have directed the
or surrender, of the notes
executed at the Masters sale. But, in
stead of this, a sale, which was made in
the absence of defendants, who had been
driven from the country, for less than
half the value of the land; and when
other proceedings were pending against it
that, probably, deferred bidders from
bidding something like its true
value was confirmed before any of
the purchase money was paid writ of |
possession was ordered; and the right of |
had been barred by a previous
decree. Under all the disadvantages sur
rounding the sale, theland had brought an |
amount greatly larger than the debt of .
COUpldludutS, Dut dS luC pulC1ieSSiS udN /
paid no part of the purchase money, it |
was impossible that they could have been
injured by setting aside the sale. The de-
cree of the Chancellor was inequitable |
and calculated to do irrepayablc injury to |
the defendants; and proceeding to rem
der such decree as we think he should |
have rendered, it is ordered that the de- |
cree of confirmation be reversed and |
that decree be entered in this cause, re-
handing the case TO the Chsncery Court |
at Maryville; TO the end that defendants /
may, at any time before or during the
next term of said court, pay to the COM
plainsnts, their authorized agent or attor-
ney, or to the Clerk and Master of said
court, the amount decreed in their favor
with interest and costs; and, on this be-
ing done, a'decree will be pronounced in
said court, setting aside the Masters sale,
and cancelling or ,surrendering the notes
of the purchaser. On he failure of de-
PENDANTS to make said payment the
Chancellor Will pronounce such decree as
he may deem proper. The costs of this
cause, in this court, will be paid by COM
plainants. NELSON, Judge.
A true copy.
Test: J. F. DEADERIoK, Clerk.