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Vol. I.)

LEE v. ROGERS.

(No. 5.

sale is void under all circumstances, and as to all persons, even though purchasers in good faith for a valuable consideration, and without notice. The principle stated in the authorities is, that the judgment is the sole foundation of the sheriff's power to sell and convey ; that, if the judg. ment has been paid at the time of the sale, the sheriff's power is at an end, and he acts without authority; and that the purchaser under a power is chargeable with notice if the power does not exist, and purchases at his peril. The following are the principal authorities upon the point : Hammatt v. Wyman, 9 Mass. 138; King v. Goodwin, 16 Mass. 63; Wood v. ;

. Colvin, 2 Hill, 568; Carpenter v. Stilwell, 11 N. Y. 69, 70, 76 ; Swan v. Saddlemire, 8 Wend. 681; Lewis v. Palmer, 6 Wend. 368; Craft v. Merrill, 14 N. Y. 461; Neilson v. Neilson, 5 Barb. 565–9; Cameron v. Irwin, 5 Hill, 275; Delaplaine v. Hitchcock, 6 Hill, 17; Deyo v. Van Valkenburg, 5 Hill, 246; Sherman v. Boyce, 15 John. 443; Jackson v. Anderson, 4 Wend. 480; Mouchat v. Brown, 3 Rich. 117; Hunter v. Stevenson, 1 Hill (S. C.), 415; State v. Salyers, 19 Ind. 432; Skinner v. Lehman's Heirs, 6 Ohio, 430. Tax sales after payment of the taxes have often been held to be void even as to innocent purchasers, upon the same principles. Jackson v. Morse, 18 John. 441; Curry v. Hinman, 11 III. 420; Hunter v. Cochran, 3 Barr, 105; Dougherty v. Dickey, 4 Watts & Serg. 146 ; Blight v. Banks, 6 Mon. 206.

The Wheelock judgment having been fully paid before its assignment to complainant, and before any sale under it, there can be no doubt that the sale was void. There was no vitality in the execution issued by complainant's direction, and there was no power in the sheriff to sell. This is the legal aspect of the case. But complainant's counsel insists, that at the time of the assignment of the judgment, Coffee led complainant to believe that the judgment was still unsatisfied, and that, conceding the sales to be void at law, he, and those claiming under him, are in equity estopped from alleging the prior payment of the judgment, and the invalidity of the sales under it. Whatever the equitable rights of the parties might be, if the question had arisen between complainant and Coffee alone, I am unable to take that view of the case, as it is now presented. Immediately after the assignment of the Wheelock judgment, and the confession of judgment in favor of complainant, Coffee confessed another judgment in favor of Freanor, which at once became a lien upon the land, subject only to the rights of complainant then vested — the prior lien of complainant's own judgment. This was before any steps had been taken by complainant to enforce the satisfied Wheelock judgment. Complainant had paid nothing whatever for the Wheelock judgment. He had at that time parted with nothing. He had in no particular placed himself in a worse position than he was in before in consequence of the assignment. At the time he took the assignment, he also took a confession of judgment for the entire amount of his debt, which became a lien on Coffee's lands, and of itself, without reference to the assignment, gave him all the advantage he could by any possibility have obtained by the attachment proceedings, which he forbore, and put him even in a better position than the attachment would have done. The only possible object to be obtained by the assignment of the Wheelock judgment was, to get ahead of the Haggin and Tevis judgment, the lien of which had already attached ;

Vol. I.

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Vol. I.)

LEE v. ROGERS.

[No. 5.

and even for this purpose no consideration was paid or given. Besides, the assignment of the Wheelock judgment was taken under very suspicious circumstances, to say the least. Complainant dealt not with the judgment creditor, but the judgment debtor. The judgment debtor professed to control the judgment against himself. The judgment debtor, not the judgment creditor, procured, brought to him, and delivered the assignment, and without any new consideration. This is a circumstance that ought of itself to have excited the suspicion of a prudent man, and put him upon inquiry, as to how it happened that the debtor controlled the debt apparently due from himself to another. It, doubtless, would have excited inquiry, had the complainant intended to pay any consideration for the judgment, or had he been actuated by any other motive than a desire to get into a better position than he could occupy by any act of his own by obtaining a preference over a vested lien already attached in favor of Haggin and Tevis. For this purpose it was evidently not desirable to scrutinize the claim assigned to him too closely, as his knowledge would only make him particeps criminis in the wrongful act. For any other purpose the assignment was useless, as his own confessed judgment took precedence over all others, and afforded him all the security and all the advantages that the Wheelock judgment could give. The Wheelock judgment had cost complainant no new consideration — he had parted with nothing - at the time when Freanor's lien attached; and with refer

ence to him he was not, under the circumstances at that time, a bona fide purchaser of the judgment for a valuable consideration.

Freanor's right vested at the time his lien attached, and at the time the Wheelock judgment had been fully paid ; and, as to him, there was then no matter of estoppel in favor of complainant. Subsequent to that time, no act of either Coffee or the complainant, or both combined, could affect the rights of Freanor.

The subsequent issue of execution upon the Wheelock judgment, the sale thereunder, and the allowing of complainant's lien under his own judgment so far as not satisfied by other sales to lapse, in no way affected the rights of Freanor already vested. In my judgment, the sale and conveyance to Freanor under his judgment vested in him the legal title to the land. Freanor's title was from that time perfect, and in no respect dependent upon the proceedings to annul the sales under the Wheelock judgment, subsequently taken. The only effect of the decree in the case of Freanor v. Lee was to remove a cloud from his title previously acquired. I see no sound reason why, upon the receipt of the sheriff 's deed, he could not at once have maintained an action at law upon his title to recover the land against the complainant, or any other party who might have been in possession. See the authorities before cited.

If I am right in this view, then Freanor's deed to Thomas J. Haynes conveyed a complete title, irrespective of the proceedings in equity, in which the sales and conveyances to complainant under the Wheelock judgment were declared void.

But if wrong in this, the view I take upon the other points would lead to the same result. I am by no means clear that the power attorney to J. W. Haynes is not of itself ample to empower him to authorize Colonel Crockett to appear in the case of Freanor v. Lee and consent to the decree

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VOL. I.)

LEE v. Rogers.

(No.5.

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entered. It is true that there is no express power to convey land, or authority in so many words to abrogate titles to land. But is not the power assumed by Haynes under the circumstances of this case incidental to other powers granted ? It does authorize Haynes to collect, demand, and receive all money due complainant, to sue therefor, and employ counsel to appear for him as he may deem expedient for the recovery of the same, and for that purpose “to submit to arbitration and compound the same," and s particularly to prosecute through final process any and all judgments to ie belonging, and at the sale under the execution issued thereon to become the purchaser in my name of any lands,” &c. This power of attorney was executed on July 5th, 1859, — the day on which complainant left California, and four days after the first sale on the Wheelock judgment. The subsequent sale on the second execution issued on that judgment was made by Haynes himself, August 1st, in pursuance of this power of attorney and instructions from complainant. The power of attorney then was made in part with special reference to collecting the money from Coffee on these judgments, the object at the time being to obtain money, not land. The title even on the first sale had not yet vested in complainant. He had only got an inchoate, contingent interest, which might be defeated on paying the money and redeeming within the time appointed by law. The subject matter, then, upon which this power of attorney was intended to operate was in part these judgments and executions, and with a view to securing the money due thereon; and to that end the attorney was authorized to act as to him it should seem best for the interest of his principal, to employ counsel in relation thereto, and “ to arbitrate or compound the same."

The end to be accomplished was to obtain a real, substantial satisfaction of these judgments by collecting the money, and the attorney was authorized to bid in the property in case it should be deemed necessary or advisable, at the contemplated sale, and to receive the redemption money in case it should be paid on the sale already made, and other sales to be made. Haynes proceeded to sell, and there being no other satisfactory bidders, he purchased for complainant, the amount being credited on the judgment. It turned out that he got no money, and in the opinion of his counsel no land, and consequently no real, although an apparent satisfaction of the judgment. He had, as he had good reason to suppose, utterly failed to accomplish his trust, — had failed to collect the money or obtain an equivalent, the title having failed through an incurable rice in the judgment through which he sought to make the money. An opportunity occurred, however, by which, through a compromise or compounding of the matter, he could effect the object of the power and still secure payment. Even if he erred as to complainant's real legal rights, there was the strongest reason to fear the loss of the property. It is difficult to see wherein this fails to come within the purview of the power. The contest is not yet ended. The fruits of his efforts are about to slip from his grasp, unless he proceeds further; and he does proceed, and through a compromise secures the full amount due his principal. It appears to me that this power to enter into the arrangement by which he ultimately secured complainant's debt is incident to the main power conferred to collect these judgments. But however this may be, this power of attorney was not the only authority Haynes had. It is not necessary

Vol. I.]

LEE v. ROGERS,

[No. 5.

that authority should be conferred by a formal, technical power of attorney. After these sales had taken place, and after the execution of the sheriff's deeds, Haynes had informed complainant, by at least two letters received by him at Washington, before the war broke out, that his title was likely to be contested by Coffee's creditors, on the grounds already discussed ; and in one of these letters Freanor was particularly referred to, as one who claimed the title under the Wheelock judgment to be void. In answer to these letters, and in reference to the threatened contest mentioned therein, he writes to Haynes, and in a letter bearing date April 6, 1861, among other things, says: “ As to the Oakland property, you must be governed by your own judgment as to its management, and, should it be necessary to go to law, employ whom you think best.And in a letter dated April 6, 1861, in answering the letter referring to Freanor, and acknowledging the receipt of Rogers's opinion that complainant's title is invalid, he says, among other things :

“ As to the clause in my letter of August 22, '60, you must, as in all cases connected with my Oakland property, be governed by your own judgment, and such legal advice as you may deem expedient." Thus, in addition to the fact that the collection of the demand against Coffee, and the completion of the enforcement of the Wheelock judgment, had been committed to Haynes by his formal power of attorney dated July 5, 1859, the complainant, after being informed that the title acquired was likely to be attacked by creditors of Coffee, and Freanor especially, and of the opinion of counsel that his title was invalid, further by letter commits the matter to Haynes's discretion, with directions to employ such counsel as he should deem prudent. In one of these and in other letters he directed him to employ Colonel Crockett in all matters relating to his interests where his services could be had.

In my judgment, under this power of attorney, and these subsequent instructions taken together, Mr. Haynes was fully empowered to employ counsel in the case of Freanor v. Lee subsequently commenced; and that both they and the counsel employed were authorized to pursue the course they did, if in their judgment that course was most conducive to the interests of complainant. That they acted in good faith, I see no good reason to doubt. Soon after the last letter from complainant referred to was written, the war of rebellion broke out, and complainant resigned his commission in the United States army, and withdrew himself within the rebel lines, where he continued in the rebel service during the war, and there was no further opportunity to communicate with him in relation to the matter. Freanor filed his bill against complainant to remove the cloud from his title. Mr. Haynes consulted Colonel Crockett, who had been complainant's attorney, and whom complainant had directed him to consult in all matters pertaining to his interest. The facts of the case having been fully investigated, both Colonel Crockett and Mr. Rogers, Haynes's own attorney, were of opinion that complainant had no title. Upon this hypothesis, the action was in no sense necessary to give Freanor a title, for that he already had. A decree would only serve to remove a cloud upon a title already perfect at law. Complainant was without title, and without the means, so far as anything to the contrary appears, to satisfy his own judg. ment from any other source. Upon negotiation between Freanor and Haynes, brought about through Coffee, it was ascertained that by an ap

Vol. 1.)

LEE v. ROGERB.

(No. 5.

pearance in Freanor's suit on behalf of complainant, and consenting to a decree removing the cloud, Freanor would consent to a sale of the land and the payment of the proceeds, first, on his own demand against Coffee ; secondly, the demand of complainant; and, lastly, that the balance should go to Coffee's other creditors. By this means the complainant would get all the money due him, thereby accomplishing the original object of his judgment, while on the other hand he was likely to lose all. Upon the hypothesis assumed, Freanor was in a position to hold the land himself. Nothing could be done without his assent, and he was not willing to surrender his rights for the benefit of complainant, although he would do it for Coffee's benefit. It was, therefore, in the minds of complainant's agents, and their counsel, only a question whether it was for complainant's interest to permit the cloud to be removed in consideration of getting the moneys due him, or, by refusing to enter into the arrangement, risk losing all. The former course was pursued, and I think wisely. It was such a course as any prudent counsel would be likely to advise, and any prudent business man to adopt, if present and acting for himself. I see no good ground for supposing that there was any fraud perpetrated by any of the parties engaged in this compromise. It matters not whether Freanor in surrendering his rights was actuated by motives of friendship for Coffee, or by a due regard for the intrinsic justice of the case. He was in a condition to prescribe terms, and it cannot be denied that he acted with liberality, and a due regard to the just claims of all. The arrangement agreed upon was subsequently carried out, and the result was, that Freanor obtained his money; complainant his; Coffee's other creditors theirs; and Coffee was partially, if not wholly, relieved from the inconvenience of insolvency. By the conditions of the arrangement under which Freanor conveyed to Thomas J. Haynes, complainant was only entitled to receive the amount due him. That he received, and after receiving his money, he had no further interest in the property, and it was no concern of his what became of it or its proceeds.

I do not think that either Haynes or Crockett, under the circumstances, either exceeded his powers, or improvidently or unwisely exercised them.

But if I am mistaken as to the powers of Haynes and Crockett, I think still that the judgment entered upon the appearance and consent of Colonel Crockett in Freanor v. Haynes is valid, as to the vendees of Haynes, without actual notice for a valuable consideration. The judgment is in all respects regular on its face. Colonel Crockett was an attorney of the court. He appeared as such in the case. It is true, his appearance refers to his authority, as derived through Haynes as attorney in fact of complainant, and the written authority to appear is filed and made a part of the judgment roll, or record. But the power of attorney to Haynes is not in the record. The record stops with the authority given to Crockett by Haynes. Whether Haynes was duly authorized or not, was a question to be determined by the court in ascertaining whether jurisdiction of the person had been acquired ; and it must be conclusively presumed that the court determined the question of Haynes's authority correctly, and upon sufficient evidence. Purchasers were not bound to look bevond the record to see whether the judge committed any error or not. They were entitled to rely on the judgment, as they found

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