Phillips v. Benson

• Decision Date: 04 February 1887
• Citation: Phillips v. Benson, 82 Ala. 500, 2 So. 93 (Ala. 1887)
• Parties: PHILLIPS v. BENSON AND OTHERS.
• Court: Alabama Supreme Court

2 So. 93

82 Ala. 500

PHILLIPS v. BENSON AND OTHERS.

Supreme Court of Alabama

February 4, 1887

Appeal from chancery court, Elmore county.

Bill in equity to set aside register's sale.

The bill in this cause was filed by the appellant, Sarah A Phillips, in her own right, and as executrix of the will of James D. Phillips, deceased, against John Benson, Samuel G Adams, and Lewis E. Parsons, Jr., and sought to set aside a register's sale of certain lands.The lands had been sold by the register under decree in the case of Samuel G. Adams against the appellant, Mrs. Phillips, and took place pending an appeal by her from said decree.The decree of the court below in said case was reversed, and the bill dismissed, by this court.Phillipsv.Adams, 78 Ala. 295.The bill in the present case alleges, among other things, that, while the register reported that appelleeJohn Benson was the purchaser at said sale, appellee Parsons, who was solicitor for the complainant in said case of Adams against appellant, in fact bought said land at said sale for $500, and in a day or two afterwards sold the same to said Benson for $600, and, with intent to defraud appellant induced the register to report said sale as having been made to said Benson for $500, and to execute to him a deed for said land reciting said consideration.It was not alleged that said sale had been confirmed.The appellees demurred to the bill upon the following grounds, among others: That the facts stated in the bill showed that the appellant"had a complete and adequate remedy at law," and "that if said sale was an invalid sale, and the purchase by Benson avoidable, this court[the court below] furnished a full adequate, and complete remedy by simple motion to set aside said sale."The chancellor sustained the demurrer, and the decree sustaining the demurrer is here assigned as error.

John A. Terrell, for appellant.

Watts & Son and L. E. Parsons, contra.

SOMERVILLE J.

1.The necessary inference to be drawn from the facts stated in the bill is that the sale which is sought to be impeached in this suit was never confirmed by the chancellor.If this be true, as we must assume in passing on the demurrer to the bill, the remedy of the complainant was not by original bill, but by entering objection in the chancery court to the confirmation of the sale, or, what is its equivalent, by motion to set it aside.Until confirmation of a sale made by a register under the direction of the chancery court, such sale is not complete; but the whole question of confirming or setting it aside is "under the control of the court, which can exercise a sound discretion in regard to it, granting or withholding confirmation as the rights and interests of the parties and the ends of justice may require."Sayrev.Elyton Land Co., 73 Ala. 85, 96.The cause not having been finally decided, the complainant had an adequate remedy without resort to a new and original suit.For this reason the decree of the chancellor sustaining the demurrer was free from error.

This is an appeal from an interlocutory decree, and, as this defect may possibly be remedied by amendment, we will proceed to pass on another question raised by the demurrer; and that is whether, in other respects, upon the facts stated in the bill, the complainant had a plain and adequate remedy at law, conceding that the sale was confirmed by the chancery court.There are several well-settled principles in this connection, upon the proper application of which this question depends.

2.If the facts apparent on the face of the register's deed be true, and the purchase of the land was made by the appellee Benson, he being a stranger to the judgment under which the sale was made, his title would be entirely unaffected by the subsequent reversal of such judgment on appeal to this court.The rule is that a sale made under a judgment or decree which is...