Seelye v. Smith

• Decision Date: 11 July 1888
• Citation: 4 So. 664,85 Ala. 25
• Parties: SEELYE v. SMITH ET AL.
• Court: Alabama Supreme Court

4 So. 664

85 Ala. 25

SEELYE v. SMITH ET AL.

Supreme Court of Alabama

July 11, 1888

Appeal from circuit court, Montgomery county; JOHN P. HUBBARD Judge.

Statutory action of ejectment brought by John H. Smith and others against Samuel D. Seelye. Judgment for plaintiffs, and defendant appeals.

Brickell, Semple & Gunter, for appellant.

W H. Graves and Watts & Son, for appellees.

CLOPTON J.

In defense of a statutory real action brought by appellees to recover the land in controversy, the appellant set up a title derived from a purchaser at a sale by the register under a decree of the chancery court rendered on a bill taken pro confesso, without personal service, to which three of the plaintiffs were defendants, who did not appear. Sections 3830-3835, Code 1876, which correspond with section 3489-3495, Code 1886, provide, among other provisions not necessary to be mentioned, that a decree made against a defendant, without personal service, who does not appear, is not absolute for 18 months from the rendition thereof, except as otherwise provided by the statutes, and that the court must direct a copy of the decree to be sent to such defendant. At any time within 18 months from the rendition of such decree, the defendant may file a petition showing a sufficient cause for setting aside the same, and permitting him to defend the suit on the merits, unless he has been served with a copy thereof, in which event the petition must be filed within 6 months from such service; and, upon hearing, the chancellor has full power to open the decree and proceed with the cause as if no decree had been rendered therein. Where personal service of the decree is made by serving the defendant with a copy, it is conclusive and binding on him if the petition to set aside the decree is not filed within 6 months from such service; and it is also provided that, before the execution of such decree within 18 months from the rendition thereof, the plaintiff or party interested must give bond, with two sureties, payable to and approved by the register, in a penalty prescribed by the chancellor or register, conditioned, in case the subject-matter of the suit is real estate, to account for its value, rents, and profits, and to abide and perform such decree as the court may render, if the decree taken on the bill pro confesso is set aside. The decree in the chancery suit was enrolled March 1, 1878. At what particular time the sale was made under the decree does not appear, but the sale was reported by the register, April 25, 1879, and was confirmed on the succeeding day. The bill of exceptions states that it did not appear, from the record or otherwise, that a bond was given, as required by the statute, before the execution of the decree, or that a copy of the decree was personally served on the defendants, or either of them. The question is whether the sale made under the decree of the chancery court shall be declared a nullity in a collateral action, when the record does not affirmatively show a compliance with the terms of the statutes in the execution of the decree. Appellees insist that the provisions of the statute are conditions precedent, on performance of which the jurisdiction of the court to make and confirm the sale is dependent, and that such performance must appear from the record. The contestation between the parties is whether the sale and confirmation are void, or only voidable. In Sayre v. Land Co., 73 Ala. 85, an original bill was filed by the defendant in the suit in which the decree of sale was entered, and in the same court, to vacate and annul the sale under the decree, on the ground that he was a non-resident of the state at the time the proceedings were had; that service was made on him only by publication; that the bond required by the statute was not given before the execution of the decree; and that he had no knowledge or notice of the filing of the bill, the decrees, or the sale thereunder, until about a year before the bill to vacate the sale was filed. The sale was made within six months after the rendition of the decree. It was held that the decree which the court is authorized to render against an absent defendant is not final or conclusive in the first instance, but provisional, subject to be set aside on application within the time prescribed by the statute, showing sufficient cause; and that the bond is essential to the execution of the decree before it becomes absolute. The sale and confirmation were set aside as being in violation of the provisions and prohibitions of the statute, and for want of jurisdiction and authority of the court to make the sale. The bill was sustained on the rule that courts of equity will intervene, upon proper application, after confirmation, to set aside sales of lands made by their officers, or under their process, when such sales are unconscionable, inequitable, or conducted in violation of law. Though an original bill was considered the proper mode, the sale having been confirmed, the attack was regarded and treated as direct, and decided on principles which are applicable when judgments or decrees or sales are directly assailed. While there are some expressions in the opinion rendered from which the voidness of the sale and confirmation might be inferred, such inference was not intended; a decision as to this matter being expressly pretermitted. It is said: "Whether the sale and confirmation ought to be pronounced void, as is earnestly insisted by the counsel for the appellant, is a question not free from difficulty, upon a consideration of which the case does not compel us to enter." We do not question that a sale made under such decree, without compliance with the statutory provisions, or before it became absolute, should be set aside on timely and proper application to the same court which made and confirmed the sale. But the present case raises a very different question.

The validity of the sale and confirmation is collaterally assailed, and the question is, what presumptions should be indulged, on a collateral attack, in support of the proceedings in the chancery court, after the decree has become absolute in fact and in law, and after the plaintiffs who were defendants in the chancery suit, have acquiesced for more than seven years without ever making application to have the sale and confirmation vacated and annulled? The controlling principle is that all reasonable presumptions are indulged to uphold judicial proceedings in a court of...