Swan v. Smith , 58 Miss. 875 ( 1881 )

Chalmers, C. J.,

delivered the opinion of the court.

The commissioner, who was directed by a decree of court to make a sale of realty in the event of a failure upon the part of the defendant to pay the amount decreed to be due, advertised the property in the mode and manner required by law, but, being called out of the State before the day of sale, engaged the services of an auctioneer, by whom the sale was made at the time and place designated. The sale was in all respects fairly and legally conducted, and the property brought its full value, as was shown by the proof upon the motion to confirm. The commissioner ratified the act of the auctioneer by receiving the money bid, by executing a deed to the purT chaser, and by reporting the sale to the court in his own name and asking a confirmation. That the court properly confirmed the sale under these circumstances, is settled bv the case of Johns v. Sargeant, 45 Miss. 332. The same principle is announced in Cranston v. Crane, 97 Mass. 459 ; Gillespie v. Smith, 29 Ill. 473; and Hawley v. James, 5 Paige, 487.

When this case was heretofore before us (57 Miss. 548), we treated the acquisition of the title of Hardy, by the payment made for that purpose by Becker & Son, as enuring to the benefit of the latter, and directed that the amount paid should be reimbursed to them, which has now been done.

We see no injustice in this to Mrs. Swan, under the circumstances of the case; and even if our former decision on this point was wrong, it must be accepted as the law of this case.

Decree affirmed.