Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-11
SUPREME COURT OPINIONS.
September Term = Knoxville,
1870.
Joseph Ii. HeiskeII, Attorney GEN
eral and Reporter.

1870.
Joseph Ii. HeiskeII, Attorney GEN
eral and Reporter.
No. 151.
Joseph L. and Edward A. Abbott VS. Jutin
G. Fagg.
APPEAL-WRRh MATTER OF RIGHr.-An ap
peal lies as matter of discretion from I'd,
DEGREES OF Court of Chancery ordering an nc
count, or q saleor Partition but as a matter n
right from the last decree. - =
HDECREE-PowER CT COURT OyFR-A de
cree pronounced but not entered is within III,
control of the Court. --l71 =
CHANcERY SALE-PowER OF CoURr Over p Az
MENT OF DEBr.-At any time before confrma
against man resident, il mas he sst aside ~
payment of the attaching creditors deht
though the bidder be a third person. Revnlar
" the application should be made before the
continuation ordered, but the party beinc
thrown OF his guard by a promise from COM
plainants attorney to take the money II wa.
ailoWea 70 pc mace afterwards during the
term az Whlcn the confirmation was had.
SALE CoNFIBMATION.-Vario COMMUNICATION
affecting the confirmation of a sale stated mi
not apparently forming the basis of the deci
sien, the report OF sale not being excenteJ 10
and these matters being subject of eScep.
ton. ......-1.. ~ '-N0'p
From the Chancery Court at MaryyiIle.
S. J. w. Lucky, Oh.
Andrews for complainant.
mckinley 6 Hood, and c. t. Gates for
defendant.
OPINION.
This attachment bill was filed. on the
18th October, 1864, against Sessler &
Fagg, to recover a debt of $S1. 500. The
attachment, issued in the case, was levied.
on the Goth October, 1864, by the Sheriff
of Blount, on certain lands described in
his return. Judgment pro confesso was
rendered 2Sd of May, 1865, as of the last
rule day of the court. A decree was pro-
nounced in favor of complainants, at the
May term, 1865, for $685. 90, and costs.
1t was directed, in the decree, that the
Master, after having first advertised the
time and place of sale, for four successive
weeks, in BrownlOw's Knoxville Whi0.
and five public places in BlOunt county.
should expose the lands attached, at pub
lie sale, TO the highest bidder, and sell the
same on six months credit, in bar of the
equity of redemption. A sale was made
by the Master, on the 10Th of September,
1865, at which Joseph NJ. Greer became
the purchaser, at $500. The sale was
duly reported; but on the 26th of Deem
Der, 1866, il was set aside, by order of
The Chancellor, whose decree recites that
the land was bid off by the purchaser at
an inadequate price, and it was ordered
that ''the Clerk and Master proceed to re-
advertise and sell said lands, or SO much
thereof as will be necessary 10 pay and
satisfy complainants' decree upon a credit
of nine and eighteen months, in equal In
stallments," etc. The Master was d.
rected, in the decree, to make report of
sale at the next term, and the decree de-
clares, further, that sat request of com
plainants, said sale, as in the original de-
cree provided, shall be made il bar of the
right of defendant, or any of their credit
ors, or assignees, to redeem the same. "
In the progress of the cause, the Master
made a further report in which, among
other things, he states that in pursuance
of the last mentioned decree, 'and in DUR
suance of notices given by me him, | for
the legal space of time, in five different
places In BlOunt county, giving the legal
notices required, ~ he sold the land, in
the plesdings mentioned, known as the
Bicknell property, and lying in sight of
MaryVille, without survey, at public auc-
ton, at the courthouse door on the 9th of
March, 1866, within the legal hours, ETC.,
to NJ. McTeer, st the sum of 1900, and
took his notes, with security, retaining a
lien for the purchase money. On the
11th of December, 1866, an order was
made, in the cause, declaring that
son application of compliments, they
have leave to file an amended and
bill so as to bring
in new parties who have liens
on the lands attached 10 this cause,-6
months granted; No amended or supple
mental bill was filed, but on the 18Th De-
cember, 1867, decree was pronounced
in which the report of sale is set ont,
and by which the same is, il all things
the title of J. c. Fagg and
Henry Sesler Invested out of them and
vested, in fee, in the purchaser at the
Masters sale; in the same decree, iudg-
ment was rendered, in favor of the sue
cessOr Ot the former Clerk and Master,
against the purchaser at the sale and his
security, for the sum of 81, BOZ. 90, and
an execution awarded, and it was directed
that the Master should pay out of the
monies, when collected, the amount due
and the costs; and that he
should hold the balance subject to the
direction of the Court, and a writ of pos
session was awarded to place said NJ.
McTeer in possession of the premises.
Near the close of said decree, it is stated
that, Sin this cause, w. d. mckinley
comes for the defendants, presented an
opposing the Confirmation of the
sale in this case, and the Court refused to
set aside the sale, and the affidavit is
made part of the record, marked Exhibit
A, to the action of the Court refusing to
set aside the sale; and from the decree in
this case the defendant, Fagg, prays an
appeal, etc.
The affidavit of w. D. Mckinley, thus
made part of the record, states that, ''on
the first day of this term of the Court,
he had an interview with the respondent
Fagg [who sent him to Hon o. p.
Temple to settle the amount of this de-
cree, and that few moments after that,
affiant was informed by some of the par
It's that it was, or would be, arranged;
that the money was to be paid and that
would be an end to The matler;-then on
Thursday late in the evening, affiant was
informed that steps were being taken TO
have the sale 10 McTeer confirmed. At
FAINT, immediately went to his client,
Fagg, and was informed by him that
Friday morning was set by him and the
said Temple to pay him, Temple, the
money; but Fagg handed affiant the
amount of the decree in favor of COM
plainsnts), being about $40. Aff1ant
then came, before the decree in this case
had gone down on the record, and tender
ed to the solicitor of complainant, Alb
bolts, (Temple) the amount of the decree.
Affiant states that, at the time the motion
was made to confirm the sale, he had not
the least knowledge that such thing
would be attempted. Affiant states that
these ale, as be believes, good and valid
objections to the sale, and these he would,
for respondent sure have made, if had
not bsen off his guard, in the manner
above stated.
Affiant states that the sale is subject to
exception because the land was, when
sold, levied on by larger number of
other attachments from this court, which
are matters of record here, and from the
Circuit Court of Blount; and 80, at the