Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-07
SUPREME COURT OPINIONS.
September Term - Knoxville,
1870. o
Joseph n. Heiskcll, Attorney GEM
cral and Reporter.
NO. Ia
NeWland ~. Gaines


assignee of the purchaser in like manner be-
comes party upon report Of the assign
ment by the Clerk and Master, or upon be-
ing recognized by the Court, but upon an
agreement in pals not filed as evidence or reg
u1arly made part of the record, such assignee
cannot prosecute an appeal
An assignment Of a bid after the sale had
been set aside and the biddings opened, and q
sale had. is& sale of a pretended claim" and
is illegal.
Ideatity of name treated as evidence Of iden-
tfty OF person.
4 sale set aside upon reasons presented by
petition and affidavit, will be presumed to
have been properly set aside. ..
Decree entered nunc pro tune in Chancery
held proper.
Reasons which will support an application
to open biddings before confirmation
From the Chancery Court at Blounts-
vile; ]. P. Swan, Judge presiding.
The reasons presented in the petition,
which the Court say in the opinion, are
sufficient to authorize the opening of the
biddings were, that the price was grossly
inadequate, and that the parties interested
did not attend the sale; one, because he
was attending on a sick member of his
family; the other, because he had no no.
tice; that the property was sold at the
courthouse when it would have brought
better price on the premises, and that
twas sold without ''notice in the proper
newspaper"
Deaderck, Judge, having been of coun-
sci, did not sit on this case.
]. G. Deaderick, G. R. Vance, r. M.
Barton, and LogaH for Newland and
Vance.
H. H. 5ngersoIl, for A. Gibson.
VIM. Newlandond J. II Vance VS.. s. D. Gaines
and others.
OPINION.
Under a decree pronounced in this
cause at Blountville, certain lands in Sui.
ivan county were sold by the Master on
the 27th of July, 1868, and bid off by
James NJ. Davaulf, for 1925, all of which
appears from the Masters report, filed
the Sth of August, 1868.
AT the first term after this sale (the No
Vember, 1868, } no decree was entered OF
record. There appears in the transcript
exceptions to this sale by the complainant,
but there is nothing to show when they
were filed. On the 18th of February,
1869, the Master filed his report, reciting
that at the November term, 1868, said
sale had been set aside and the biddings
opened upon the application of complain.
ants, Newland and Vance, and that in
pursuance of this decree the biddings had
been opened and the land sold on the 18th
of February, 1869, to w. V. Vance and
Wilburn Newland, for 81, 1856. At the
May term, 1869, the cause was heard upon
both reports of sale, and exceptions, and
decree rendered setting forth that at
the November term, 1868, a decree had
been rendered by the Chancellor then
presiding, opening the biddings, end di-
recting the sans TO be kept open for three
months, but by accident or mistake said
decree was not entered of record, and
orders that said decree be entered nuuc
pro tune. This latter decree adjudges
that the first sale be set aside, and the
latter sale be confirmed. From this de-
cree Andrew Gibson, who the decree re-
cites is the assignee and vendee of James
M. Davault, the purchaser at the first
sale, prays and obtains an appeal to this
court.
A purchaser at Chancery sale
becomes so far party to the cause as to
authorize him 10 appeal from any subse-
quent decree affecting his rights. The
report of the Master and the notes for
purchase money is the record upon which
he becomes party to the cause; an as
signment of the bid by the purchaser re-
ported by the Master, or authorized by
the court, would doubtless authorize the
assignee of the purchaser to take the place
of and be entitled to the rights of the
latter.
The evidence upon which Gibson
claims the right TO the land, and to liti-
gate the question in this cause, is an
agreement entered into between Davault
and himself on the 23d Of February,
1859. This agreement is transcribed in
the record, though it does not appear to
have been filed as evidence or made a
part of the record in any regular mode.
But this objection out of the way, the
agreement itself cannot be recognized as
valid, or as living Gibson any status in
court 1t shows upon its face that il was
executed, after the sale 10 Davault had
been set aside by the court, and after the
land had been resOld to Vance and New
land. And although it does not say so,
in terms, yet it hears unmistskable evil
dence rof the fact that this was well
known 20 both Davsult snd Gibson at the
time this agreement was entered into. 1t
recites, that at the November Term,
1869, San effort was made to set aside
my purchase, although l had in good faitf
complied with the terms of sale. / claim
the properly under my purchase, and as
no record appears in the proceedings OF
November, 1868, of said court, setting
aside said sale, demand that faithful
compliance Of the contract be enforced
by the court, etc.
This agreement further provides that
Gibson is to prosecute the case at his owl
expense, that he may appeal to the Su-
preme Court etc.
There appears also in the record an
affidavit made by ga. Gibson" which
seems TO have been used upon the mo-
ton totopen the biddings, although the
date of it is not given. This affidavit
states that the property is worth one
thousand dollars or more, and that a con
frnation of the sale at 1926. 90 would be
manifest injustice TO the parties. We
are left to infer the said "a. Gibson,
who makes this affidavit, is the same mar
who appeals in this case. Nothing ap
pears to the contrary. 1t is clear there
fore that Davsult aud Gibson discovered
that the decree of November Term, 1868
| had not been entered of record, and sup
posing this to be fatal omission, Da
vault, by this contract, sells his ''pre
| tended claim" to Gibson, a claim tina
they then both knew had been declared
invalid. This was in substance an
effort upon the part of Gibson
10 purchase Davault's interest in
law suit; the contract is illegal ant
cannot be regarded as giving Gibson AM
status in court. This result is clear from
principles so familiar it needs no illustra
tons or authority to sustain the PROPOSE
ton. Davault's notes had been previous
| ly surrendered to him as appears from
| the decree, and the notes of Gibson whicl
are filed by him with the agreement be
fore referred to, have never been sccepte,
| by the master.
If Gibson stood in attitude before u
to have the cause revived, we should en-
| lCIldlu uO uOuUb u Jut OOIltItHCe
of the Chancellor's decree. 1t i
argued upon the authority of III
case of Johnson VS.. Qusrles, 4, Cold
c. Is; that mere inadequacy of price il
not sufficient to set aside a masters sal,
even before confirmation, that there mus
be accident, fraud, or some other cir
cumstances making it inadequate to con
firm the sale Without enqniriug as t
the correctness of this authority, at pres
ept, we think it clear that sstisfsct0r,
reasons were made to appear in this case
why it would have BEN inequitable an,
unjust to confirm the first sale.
The action of his Honor purports L
have been founded upon reasons, pre-
sentcd in the petition of the complainant
aud affidsvits There is ~ bill of eXcep
tions setting forth the sffidavils, or max
ing them a part of the record, and W
would presume unless the contrary ap
peared, that the reasons presented jus
tify the Court. Thee are affidavits