Swan v. Smith

1. Judicial Sale. Under decree in chancery. By agent or commissioner.' Confirmation. A commissioner, directed hy the decree of a chancery court to sell certain land, advertised the same in due form, but, being called out of the State before the day appointed for the sale, engaged an auctioneer .to make the sale for him. The sale was made by the auctioneer at the proper time and place, was fairly conducted, and the property brought its full value. The commissioner, upon his return, received the money'bid, executed a deed to the purchaser, and reported the sale to the court in bis own name and asked that it be confirmed. It was confirmed by the court. Held, that the action of the court below in confirming the sale was correct. 2. Res Ad judicata. Supreme Court. Decree of sale. Confirmation. Where, upon an appeal to this court, the rights of the parties in the case have been adjudicated, and directions given for the sale of the land in controversy and the application of the proceeds, that decision must be regarded as the law fixing the rights of the parties, on a subsequent appeal to this court from a decree confirming the sale of the land.

Appeal from the Chancery Court of Lincoln County. Hon. H. S. Van Eaton, Chancellor. Isaac Smith filed a bill in chancery against James T. Swan, Mary S. Swan, his wife, and Pierre Becker & Son, to subject to a judgment held by the complainant against Swan certain land which it was alleged he had fraudulently conveyed to his wife. Upon appeal to this court (57 Miss. 548), the conveyance was declared to be fraudulent, and the court below was directed to ' have the land sold and the proceeds applied (1) to the reimbursement of Becker & Sou for an amount paid out by them in i’elieving the land of certain encumbrances held by J." C. Hardy and others, and (2) then to the payment of the complainant’s judgment. The laud was accordingly sold, and the sale was confirmed by the Chancery Court. Thereupon Swan and wife appealed. 1. The former decision of this court, in subjecting the entire property to the complainant’s judgment, put Mrs. Swan in a worse attitude than that of either Becker & Son or Hardy, through whom she claimed title. That was error. Harrington v. Allen, 48 Miss. 498 ; 46 Miss. 489 ; 54 Miss. 158 ; Salmon v. Smith, ante, p. 399. 2. The Chancery Court erred in confirming the sale of the land, because it was not made by the commissioner, nor under his personal supervision. 72 111. 282; 3 Wall. 205 ; 15 111. 394 ; 8 How. (U. S.) 495, 544; 1 Dana, 185 ; 13 N. Y. 587 ; 5 Paige, 487 Sugden on Powers, 222 ; 3 Vt. 189 ; 2Litt. 109 ; 47 Ga. 73; 1 McLean, 197. This court clearly erred in directing the sale of the entire property. The fact that there was an interest in the property not subject to sale was overlooked by the court, because not pressed by counsel. The reason for not correcting the error is not sufficient to justify a persistence in the wrong done. See authorities cited by Messrs. Sessions & Cassedy upon this point. 1. The former decision in this case (57 Miss. 548) is the law of this controversy, and the decree thereunder granting relief to the complainant is res adjudicata. 9 Smed. & M. 138 ; 13 Smed. & M. 445 ; 10 Geo. 136 ; 1 Geo. 66 ; 14 Smed. & M. 100. 2. The decree of the court below confirming the sale of the land was correct. The true theory of judicial sales is thát they are made by the court. The commissioner is but a seeker of bids. Johns v. Sargeant, 45 Miss. 332 ; 8 Cow. 58 2; 29 111. 473 ; 5 Paige, 487; 97 Mass. 459.