Finley the President, Directors Company, of the Bank of the United States

• Decision Date: 25 February 1826
• Citation: 6 L.Ed. 480,11 Wheat. 304,24 U.S. 304
• Parties: FINLEY, Appellant, against THE PRESIDENT, DIRECTORS, and COMPANY, OF THE BANK OF THE UNITED STATES, Respondents
• Court: U.S. Supreme Court

24 U.S. 304

6 L.Ed. 480

11 Wheat. 304

FINLEY, Appellant, against THE PRESIDENT, DIRECTORS, and

COMPANY, OF THE BANK OF THE UNITED STATES, Respondents.

February 25, 1826

Feb. 24th.

This cause was argued by Mr. Bibb for the appellant,^a and by Mr. Webster for the respondents.

This is a bill in Chancery brought by the Bank of the United States against James Finley, to obtain a decree for the sale of property mortgaged for the security of a debt due to the bank.

The mortgage deed was executed on the 28th of September, 1822, and contains a recital of debts due to the bank to the amount of 6,240 dollars, on account of which a note was executed on that day to the bank for that sum, payable sixty days after date. At the November term of the Circuit Court of the United States for the District of Kentucky, the bill was filed, stating the consent of the mortgagor to an immediate sale of the mortgaged property, although the day of payment was not arrived; and, on the same day, an answer was filed consenting to a decree for the sale. A decree was immediately entered, by consent of parties, directing the Marshal to sell the property. The Court then proceeds to direct the Marshal, after deducting the expenses of sale, his commission, and the costs, to pay to the bank the sum of 6,240 dollars, with interest from the date of the note. The sale was made in pursuance of the decree, and the report thereof was returned to the Court by the Marshal.

At the succeeding term, William Coleman filed his petition, stating, among other things, that he held a prior mortgage on the same lands, and praying that he might be made a party defendant to the suit. His petition was rejected and he prayed an appeal to this Court, which has been dismissed as irregularly granted. After dismissing this petition, the Circuit Court pronounced a decree affirming the sale made by the Marshal, and directing the credit to which Finley should be entitled for the money paid out of its proceeds to the bank. This decree also considers the debt due to the bank as amounting to 6,240 dollars, with interest from the date of the note.

The mortgage to Coleman is filed, and appears to be dated three days anterior to that made to the bank. A suit to obtain a sale of the premises was instituted in the State Court in March, 1823, and was depending when the final decree was pronounced at the suit of the bank. After the final decree had been pronounced, Finley filed a petition, praying that the sale and decree might be set aside, alleging, among other reasons therefor, that Coleman, the prior mortgagee, had not been made a party, although the existence of his mortgage was known to the bank.

The prayer of the petition was rejected, and Finley has appealed to this Court. The counsel for the plaintiff in error insists, that this decree ought to be reversed, because it was pronounced in a case in which proper parties were not before the Court.

It cannot be doubted that Coleman ought regularly to have been a party defendant, and that had the existence of his mortgage been known to the Court, no decree ought to have been pronounced in the cause until he was introduced into it. But this fact was kept out of view until the decree was pronounced, the sale made, the money paid to the creditor, and the report of his proceedings returned by the Marshal. If the manner in which the sale was made, and the money...