
    NOVEMBER TERM, 1844.
    Henry Tooley v. Horace Gridley, et al.
    The jurisdiction of the Circuit Court to foreclose k mortgage is equal to that of the Superior Court of Chancery.
    A sale by a commissioner under a decree to foreclose a mortgage of the mortgaged premises, is incomplete, and may be set aside before confirmation.
    The Circuit Court having jurisdiction to foreclose mortgages, has power to regulate all proceedings in cases for that purpose until they are finally disposed of.
    A decree ordering a sale of mortgaged premises, which directs the commissioner to sell the property, make the deed, and pay the complainant what is due to him, is informal.
    A confirmation (of a sale conducted by a commissioner, of mortgaged property) made by the'parties themselves, is as valid as if made by the Court.
    Where the complainant, having obtained a decree of foreclosure and sale of mortgaged property, had the property sold upon a credit of six'months, accepted the bond given for the purchase-money, and issued executions upon it after it ripened into judgment, he was held to have confirmed the sale by the commissioner, as fully as if it- had been formally confirmed by the Court.
    A sale made by a commissioner of the Chancery Court, though irregularly made, will be rendered valid, if repeatedly acquiesced in at the time, by the party seeking afterwards to set it aside.
    The Superior Court of Chancery in this State, has no right to revise and correct the decisions of the Circuit Court on the Chancery side.
    T. obtained a decree in the Circuit Court of Adams county, foreclosing a mortgage made by G., upon a lot of ground. The decree of foreclosure was rendered by that Court, and the lot sold by a commissioner at public sale to K., who gave a bond for the purchase-money, which was forfeited, and execution . issued against K., which was levied on the mortgaged lot, which was sold to M., who bought for K. But the monies produced by this sale, instead of being received by T., were by that Court appropriated to an older execution against K., in which judgment of the Court T. acquiesced. M. sold the lot thus purchased to L., but the sale was fraudulent, K. being still the real owner; in this state of fact T. filed his bill in the Superior Court of Chancery, to have the various sales of the lot set aside and his decree enforced; held, that the Superior Court of Chancery had no jurisdiction of the case.
    Where a decree of foreclosure ordered the mortgaged premises to be sold on a credit of six months, when there was no law authorizing such a decree, and the sale took place in conformity with the decrtee, and was acquiesced in by the complainant’s accepting the bond for tjie purchase-money, and issuing execution on it; held, that the complainant was estopped from making any objection to the validity of the sale on account of such irregularity.
    
      Whether upon a sale under a decree of foreclosure upon credit, a lien similar to the vendor’s lien is not retained by the Court as ultimate security without an express reservation in the decree to that effect; quaere.
    
    If such a lien exist, the original mortgagor of the property would not be a necessary party to a bill seeking to enforce it; and such a bill might be filed in a Court that did not render the original decree of foreclosure.
    Appeal from the decision of the Superior Court of Chancery.
    The bill in this case charges, that complainant, in March, 1838, filed his bill in Adams Circuit Court against H. Gridley, to foreclose a mortgage on the last of three notes, for $2900. A pro confesso was regularly taken, and a final decree made in Oct. 1838, for the sum of $3153, and a sale of the mortgaged premises, part of lot 4, square 9, in the city of Natchez,-ordered, on a credit of six months, to be made by the sheriff of Adams county, as a Master in Chancery. The sherifF was directed to take a bond with sufficient security, and to execute a deed to the purchaser, and to brirfg the purchase-money into Court, and to make a return of his acts to the Court; the amount due complainant to be paid to him, and the surplus to defendant.
    Izod, the sheriff, received the decree 20th Nov. 1838, and on the 7th June, 1839, returned that he had sold the property to J. R. Kane for $3700, and also returned Kane’s receipt for the surplus money.
    On the 8th Feb. 1839, the sheriff returned to the clerk’s office a bond of Kane, F. Little, and T. Mackin, to complainant, for $3202.74, for the purchase-money of lot 4, square 9, reciting the sale under the decree, &c. On the 8th July, 1839, the bond was endorsed by the clerk, “not paid,” and on the same day a fieri facias issued on it, bearing test the second Wednesday in April, 1839. This fi. fa. was levied on the same lot, and also on several other lots, household furniture, &c., and four slaves, as the property of Kane, and returned, — advertised, and not sold for want of bidders, on the 14th Oct. 1839. A venditioni issued 29th Nov. 1839, and returned, “ sold the property, &c. for $3963.”
    At the May term, 1840, complainant entered a motion to appropriate this money to the satisfaction of his execution, on the ground of the priority of his mortgage lien and debt. The motion was overruled.
    
      An alias fi. fa. issued 29th June, 1840. On the 17th August, 1840, the sheriff returned that he had sold the property of Thos. Mackin, advertised, for $1850, to complainant, and the property of F. Little, advertised, for $2551, to other persons. Complainant receipted this execution, to the extent of $1635, as the proceeds of the sale of Mackin’s property.
    On the return of the alias fi. fa., Mackin moved to quash the execution, on the ground that there was no such judgment as it recited, which was sustained:
    Izod, it is charged, made no return of his acts under the decree, nor was his sale confirmed, nor did he comply with the directions of the decree, and the sáme remains unexecuted, and has never been paid .or satisfied.
    Izod made a deed to Kane for the mortgaged lot as sold. It is charged that Kane was not a bona fide purchaser, and never paid any consideration therefor. Charges that the fi. fa. of the 8th July, 1839, was void, there being no judgment as recited in it. Same charge as to the venditioni, that the sale of the mortgaged premises under the execution, was fraudulent; that Kane has been, and still is in possession.
    That one McMasters was the ostensible purchaser, at the sale on the executions, and that the sheriff made him a deed ; that McMas-ters was a clerk of Kane, and a man of no property, and never paid the purchase-money, or if he did, he received it from Kane.
    Charges that the mortgage is still in force, unsatisfied.
    The deed to McMasters bears date 1st June 1840, and was recorded 30th Nov. 1840, and on the same day, McMasters conveyed it by deed to Sidney A. Lacoste, Kane still remaining in possession ; that Lacoste took his title with full knowledge that McMas-ters was not a bona fide purchaser. That Lacoste was not a bona fide purchaser from McMasters, that he holds it upon some secret trust, and has never paid for it, or if he has, not with his own funds.
    That Izod never received the consideration from McMasters, nor did he advertise the sale according to law.
    That the mortgage is still in force on the property in preference to any other claim under the sale, and the mortgaged premises are .sufficient to pay the debt, and are the security selected by complainant, who has done no act to deprive himself of this security.
    
      He offers to surrender up his deed for Mackin’s property, if the Court will set aside the sale to Kane, and also the sale to McMas-ters.
    Charges that Kane and McMasters refuse to surrender their deeds or rescind the sale,.
    Prays that Kane, McMasters, and Lacoste be compelled to deliver up their deeds to be cancelled, and the sale to Kane be set aside, and a resale be directed, that complainant may have the full benefit of his decree, and that the same be corrected by the appointment of a Commissioner instead of a Master; that all proceedings under the decree be set aside, and the decree be regularly and duly enforced, and if necessary, a certiorari be awarded to remove the record and proceedings into this Court for general relief.
    To this bill there was a demurrer, assigning four causes.
    1st. Izod, Little and Mackin, are not proper parties, having no interest, &c.
    2d. The matter in controversy grew out of a proceeding in the Circuit Court, and is a part of a suit still pending there.
    3d. The irregular execution of the Circuit Court can be corrected in that Court..
    4th. The facts charged do not amount to fraud, although the Circuit Court refused to apply the money made under the sheriff’s sale to McMasters. The sale was valid as to a purchaser in execution, although the execution was informal and liable to be set aside, and it was no fraud in the sheriff, or any one else, to withhold the purchase-money from complainant, after the Court had overruled his motion to that effect.
    
      Montgomery and Boyd, argued in behalf of the demurrer.
    
      G. Winchester, in behalf of the bill.
    The merits of plaintiff’s bill upon the demurrer may be discussed by onsidering, first, the rights which he seeks to obtain; second, the remedy by which he has sought his rights ; third, the jurisdiction of the Court, in which he has sought to enforce his rights, to afford him the relief which he seeks.
    In sustaining the demurrer, the Chancellor expressed no opinion, either as to the right, or as to the remedy, but dismissed the bill upon the want of jurisdiction. He was of opinion, that whatever might be the rights of complainant upon the statements and charges contained in his bill, or whatever might be his proper remedy for enforcing those rights, that the jurisdiction to enforce his rights belonged to the Circuit Court of Adams county.
    First. As to the rights of the complainant upon the facts stated in the bill. Complainant sold 'a house and lot in Natchez, to Horace Gridley, and took a mortgage on the property, to secure the payment of the notes given for the purchase-money. Upon this mortgage he obtained a decree, on the 27th of October, 1888, in the Chancery side of the Circuit Court of Adams county, of foreclosure and sale, for the sum of $3153, due on the mortgage. The house and lot were sold under the decree by the commissioner (or, as he is called in the decree, the master) appointed, to Kane ; the deed was executed and delivered, and a six months’ bond taken, with Little and Mackin securities, and returned into the clerk’s office. But the commissioner made no report of his sale, and the sale was never confirmed, and no part of the purchase-money has ever been paid by Kane or his securities. The house and lot has since been sold under' executions upon judgments in the Circuit Court against Kane, and purchased by McMasters, and a deed made to McMasters by the sheriff, which deed and sale were fraudulent, McMasters never having paid any consideration, being a clerk in the tippling-shop of Kane, and notoriously unable to pay' the amount of the purchase-money ; and McMasters has since conveyed to Lacoste, but for no consideration, and fraudulently, the house and lot still really belonging to Kane, and Kane having always continued in possession.
    Upon these facts, stated in the bill, and admitted to be true by defendant’s demurrer, what are the rights of Tooley under the laws of the land ? By his contract of mortgage, and by his decree in rem,.he has a clear right to make the money decreed to be due to him under his mortgage out of the mortgaged premises.
    The sale and deed to Kane, the bond taken ’and returned for' the purchase-money, the sale of the house and lot to McMas-ters, and the conveyance from McMasters to Lacoste, have not divested Tooley of his right to have satisfaction and payment of the money decreed to be due him upon his' mortgage out of the mortgaged premises.
    The mortgage is a mortgage upon the house and land, to secure the payment of his debt; and the decree is a decree against the land that it shall pay the debt. Nothing but an actual payment, out of the proceeds of the sale of the'land, will discharge the house and lot from the mortgage, or satisfy the decree against the land.
    Whether Tooley has a right to make his money on execution upon the bond out of other property of Kane, or out of property of Little and Mackin, his securities, or not; or whether there is any other property of Kane’s or his securities sufficient, out of which he can make his money, is wholly immaterial. Pie 'may have the right, and he may be able to make it out of the securities, by an execution on the bond, or he may not have the right, or he may not be able to find sufficient other property. ' But 'the question here is, has he still a right to make his money out of the house and lot ? and we say he has that right, by virtue of his mortgage upon the land, and his decree upon the land.
    The legal, obligation of the contradi is, that, if the mortgagor does not pay the money by a given day, the land shall pay. The decree is, that the mortgagor, not having paid, the land shall, according to the legal obligation. Nothing but a payment is a discharge of the legal obligation. J The law authorizing a sale on six months’ credit upon bond, .with security for the purchase-money, is merely remedial. It does not intend that such bond shall discharge the lien of the mortgage upon the land ; and if such were the intention of the_ statute, it would clearly impair the obligation of the mortgage contract, and be unconstitutional. For on the execution of the decree, by a sale, the law can no more compel the mortgagee to accept a bond, with security, to pay the price of the land, in extinguishment and discharge of the mortgage obligation to pay the money out of the land, than it could constitutionally require him to take a similar bond for the payment of his debt, in discharge of the mortgage, before he should obtain a decree ; or than it could authorize the Chancellor to decree to him a six months’ bond with security, for the satisfaction and in discharge of his mortgage, in lieu of the'ordinary decree of foreclosure and sale.
    
      The bond is merely accumulative and remedial security to enforce payment out of the land, but does not discharge the land from the mortgage lien upon the land merged and still alive in the decree against the land. It does not change the remedial proceeding from a proceeding in rem to a proceeding in personam, and the mortgagee’s security for his money from.a real security, or security in the thing mortgaged,'into a personal security. Nor will it do to reason that a new lien is gained by the forfeiture of the six months’ bond, not only upon the mortgaged premises, but even a more enlarged lien on all the property of the purchaser and his securities also, .which is more beneficial than the old mortgage lien. For between the interval of giving the bond and its becoming a lien by forfeiture (if indeed the judgment lien statute extends to forfeited bonds), the lands of the purchaser and his securities, and all their visible tangible property may be transferred bona fidey and converted into money, so that there will be nothing to which the lien can attach. But the true and unanswerable objection to this reasoning is, that whether a new and better security for the money is gained or not, it does not meet the objection, that to change the mortgagee’s security, against his consent, in any the slightest particular, whether prejudicial to him or not, is to violate the obligation of his contract; and he cannot be constitutionally forced to give up a'security he has selected by contract, for a security the law or the Court may deem more to his benefit.
    If the mortgagee, as against the title of a purchaser at a commissioner’s sale, his alienee, and all persons claiming under him, still retains the security of the thing mortgaged for the payment of his debt, until his debt is actually paid, as far as the proceeds of the sale will go to pay it, then the securities of Kane in the bond have a right to require Tooley to make his money out of the house and lot; or if he should make it out of their property, they, as an indemnity, have a right to be subrogated to the benefits of his mortgage and decree against the land, as against Kane and all "persons claiming under him.
    Tooley, still having the right to have the decree for his mortgaged debt enforced and satisfied out of his mortgaged property, has also a right to.have all obstacles to the enforcement of the decree against the land removed.
    
      These obstacles have arisen from an irregular act of the master or commissioner who sold under the decree, in his executing and delivering the deed before the money was paid, and even before he had made a report of his sale, and before the sale was confirmed. Until this deed is recalled and cancelled in a Court of Equity, as well as the deeds under Kane to McMasters and to Lacoste, the title to the house and lot will be good at law against any title which can be acquired by a sale of the house and lot on an execution upon the bond, or (if the sale to Kane should be set aside) on another sale under the decree ; because this title having been passed from Kane to Lacoste, Lacoste’s title would be unaffected by any proceeding to set aside the sale to which he were not a party. Until these deeds are regularly set aside, by a proceeding ex directo, in the same or some other Court, having jurisdiction, in a collateral suit, their regularity could not be inquired into, and Tooley’s rights are all conveyed away by them under his decree. Independent of the charges of fraud upon the deeds to McMasters and Lacoste, Tooley has a right to have these deeds recalled and cancelled, on the ground that the purchase-money by Kane has never been paid, nor the sale confirmed, in order that he may enforce his right under his mortgage and decree to. make his money out of the land.
    For McMasters and Lacoste, even if bona fide purchasers, and for valuable consideration, will be held, in equity, cognizant of the fact, that the money had not been paid, nor the sale confirmed, which facts appear upon the face of the title of Kane, or enough appears to put them on inquiry, and if they did not know the money was unpaid, it was crassa negligentia not to inquire and ascertain the fact, that the six months’ bond had or had not been paid. If the money had been paid, the sale would have been complete without confirmation. But even a confirmation would give the purchaser no right to a delivery of the deed without payment. »
    Tooley has the further right to have the whole cause and proceedings removed from the Circuit Court by certiorari into the Superior Court of Chancery, if necessary, for the purpose of having the decree of that Court executed in the Superior Court of Chancery, and the irregular proceedings in that Court corrected ; at least, I suppose such a removal was within the constitutional power of the Superior Court, and might be necessary. But this point, I consider, on more reflection, not material, as I think it unnecessary.
    _ But, in addition to the ground that the money has not been paid, nor the sale confirmed, and that the deed was improperly delivered to Kane, if the cognizance of McMasters and Lacoste of these facts as bona fide purchasers for a valuable consideration, is not sufficient to entitle Tooley to a cancellation of their deeds, they are charged in the bill as mala fide and fraudulent purchasers without consideration, to defeat creditors.
    A mortgagee, a creditor, or a subsequent bona fide purchaser, have all a right to have fraudulent deeds, made to defeat or prejudice their respective rights, cancelled.
    Such, then, are the rights which Tooley claims in his bill of complaint in the Superior Court of Chancery, to which the defendant has demurred.
    1st. The right, by virtue of his mortgage, upon the house and lot sold to Gridley for his purchase-money, and by virtue of his decree against the house and lot, to have his mortgage debt paid to him out of the house and lot.
    
      2d. The right to have the deeds to Kane, McMasters, and La-coste vacated, that he may be enabled to enforce his decree against the house and lot, either by a sale on execution, upon the six months’ bond, or by setting aside the sale to Kane, and directing a sale under the decree by the same or another commissioner.
    To this view of the rights of the complainant, the only objection urged by”defendants is, that Tooley has a right to make his money under the bond, out of other property of Kane, or out of property of his securities. T.he bill states that there ,is not sufficient other property of Kane or his securities to satisfy the debt, which, being admitted by the demurrer, is a sufficient answer to the objection. But a more proper answer is, that whether Tooley has a right under the bond, which is questionable, and can make it out of the securities or other property of Kane’s, or not, it is inconceivable how such right, if it exist, can affect his right by obligation of his contract and decree against the house and lot, to make it out of the house and lot, unless the legal obligation of Tooley’s mortgage was destroyed by forcing upon him another contract by bond, -with security, for the payment of his money at a future day ; which, if the bare statement of.the proposition does not show to be a violation of the obligation of his contract and unconstitutional, like the statement of any other self-evident proposition, then argument can do little or nothing in its support.
    But until the sale to Kane is confirmed, even the right to make his money under the bond is 'questionable. If it exists, it is only an additional right, and not destructive of his right to make it out of the house and lot. Additional security does not destroy older security.
    3d. By what remedy is complainant to obtain the debt due to him under his decree upon his mortgage out of the mortgaged house and lot ?
    He may, say defendants, take out execution upon the bond, and if his lien on the house and lot still remains good against the title of Lacoste, he can make it by a sale of the house and lot. But we reply, although Tooley should have a right to make his money by a sale of the house and lot, on the execution upon the bond, if the title-deed had not been delivered-to Kane and the title passed to Lacoste from Kane, yet the title-deed having been improperly delivered before the money was paid, and being the oldest legal title under the decree, if it is permitted to remain outstanding, it will be a better title at law than the second title under the same decree to a purchaser under the bond, and thus it is an obstacle in the way of complainant’s carrying his decree into effect by an execution upon the bond; or if not a better title, it is a cloud upon the title.
    Beside, as the commissioner has never made his report, and the sale has never been confirmed, it is at least doubtful whether an execution can be taken out upym the bond until a report is made, and the sale confirmed. It is true, complainant might, by motion in the Circuit Court, compel the commissioner to report, and then have the sale either confirmed or set aside, and either proceed to sell the house and lot under the bond, if the sale should be confirmed, or sell by a new direction under the decree, if the sale should be set aside. But still this proceeding would not- reach the title now in Lacoste under the decree, unless the deed to Kane and the deeds under him are absolutely void, and not merely voidable, because delivered before the money was paid, or the sale confirmed.
    But, say defendants, complainant may make his money by execution on the bond out óf other property of Kane, or out of the property of Little and Mackin, his securities.
    Beside, that defendants’ pleadings do not show there is such -other property of Kane or his securities sufficient to satisfy the debt, the complainant’s bill expressly states,- that there is not sufficient other'property of either Kane or his securities, and defendants’ demurrer admits the statement.
    But suppose there were sufficient other property of Kane and his securities, and that there were no difficulty in reaching'it by an execution on the bond without any confirmation of the sale, or'by having the sale confirmed, provided the commissioner can report such a lawful sale pursuant to the decree, as will justify a confirmation.; yet this right to make his money out of other property of Kane and his securities, by this remedy of an execution upon the bond, even if it were adequate to the satisfaction of the whole debt, is not now the question. Should this Court now decide, that the plaintiff can make his money by an execution on the bond out of other property of Kane and, his securities, such decision, in this case, could have no binding effect. If this remedy had been so easy and complete, it is likely complainant would have tried it, and-made his money before this time. He, or his counsel, could have no desire to pursue a circuitous and dilatory course by original bill to subject the house and lot to the payment of the debt, from the mere preference of making the money out of the house and lot, if the money could have been made by so simple and summary a remedy. But whatever may be our rights or our remedy against other property of Kane or his securities, or whatever may be our prospect of making our money by the pursuit of those rights and that remedy, the question here is, have we not a right to make our money out of the house and lot mortgaged, and against which we have obtained our decree; can we be divested of the tide which we acquired by our mortgage to the house and lot, as a security for our money, against our consent, by anything but an actual payment of the money; and have we not a right to have the decree which we obtained for the enforcement of our mortgage against the land, enforced by an actual payment out of the land ? If so, our decree for our money out of the house and lot can only be enforced effectually by a removal of the obstacles, which the title Lacoste now has to the house and lot under the deed from the commissioner to Kane,, and of the sheriff to McMasters on execution against Kane, presents to its enforcement.
    Our only complete and adequate remedy, the only one by which we can carry our decree into execution against the house and lot, so as to obtain the mortgage debt decreed 'to us, is to Vacate the title conveyed to Kane before he had paid the purchase-money, and before the sale to him was confirmed ; and the titles from Kane to McMasters, and from McMasters to Lacoste, which were obtained not only with a knowledge that Kane had not paid the purchase-money, and that the sale to him had not been confirmed, but which were obtained mala fide and without consideration, in legal fraud of our rights.
    An original bill in Chancery is the proper remedy to remove these obstacles, to vacate these deeds, whether they be only voidable or absolutely void, and to carry into effect our decree against the house and lot.
    4tb. Upon the, right of complainant to cancel the deeds as obstacles to the execution of his decree against the house and lot for the debt due on his mortgage, by the remedy of an original bill to remove obstacles and enforce'the decree against the house and lot, the Chancellor expressed no opinion, but sustained the demurrer, and dismissed the bill solely on the question of jurisdiction.
    He was understood to be of opinion, that the'Circuit Court, having concurrent jurisdiction in divorce and mortgage causes with the Superior Court of Chancery, and having'first obtained the jurisdiction and rendered the decree, the Superior Court could take no jurisdiction ; nor could the orignial cause be removed by certiorari into the Superior Court, at the instance of complainant, after the decree for any cause or purpose ; and that having jurisdiction to render the decree in the mortgage cause, it necessarily had the jurisdiction to execute its own decrees, and to remove all obstacles to their execution. The question of jurisdiction was new under our judicial system, and the state of the facts in this case novel, and at first sight perplexing. The questions upon the rights arising out of all the facts of the case, and of the proper remedy, and their con-nexion with the question of jurisdiction, did not present itself to my mind, previous to the argument before the Chancellor, in so clear and simple a view as it has since ; and had the case been presented to him in the same light here shown, I think his decision would have been different.
    By the Constitution, superior general jurisdiction in equity causes is given to the Superior Court of Chancery as a court of original equity jurisdiction, while the original jurisdiction given to the Circuit Courts is both inferior, and special, and limited. Its original jurisdiction to render a decree in equity is confined to divorce and mortgage causes arising within, th,e county, and these causes are removable by certiorari into the Superior Court of Chancery.
    The Circuit Court has not an equal and concurrent jurisdiction in mortgage and divorce causes with the Superior Court of Chancery ; nor when it has first taken or obtained jurisdiction of a mortgage cause, does it thereby exclude the jurisdiction'of the Superior Court of Chancery, which can at any time take the cause out of the jurisdiction of the Circuit Court by certiorari.
    
    The Constitution creates courts and confers jurisdiction, or leaves it to the legislature to do both. Where jurisdiction is conferred by the Constitution, it cannot be altered by statute. But the Consitution does not deal in definitions, it contains no scientific treatise upon itself, it confers jurisdiction in general terms, and the meaning of these terms is not to be ascertained from the Constitution itself, but from their meaning under a previously existing judicial system to which they refer.
    Jurisdiction means, as we find when we recur to that system, the judicial power to render a judgment, or decree, in civil causes, which have the binding and conclusive effect of res adjudicata upon the matter adjudged, decreed, or ordered, between all persons, parties to the cause, and' those claiming under, by or through them. It is of different kinds. It is constitutional, or statutory, or Common'Law. It is legal, or equitable, or probate, or police. It is appellate or original. As original, it is either exclusive, or concurrent and equal, or ancillary, superior or inferior. What the kind of jurisdiction is, what is its extent, and what its nature, can never be learned from the Constitution alone, but is ascertained solely by reference to the science and the system of a judiciary, as it previously existed in the State, and in other Common Law States.
    According to that system, our Superior Court of Chancery is a Court of superior general original jurisdiction in all equity causes, and the rule which applies in ascertaining the extent of its jurisdiction, is, that by virtue of its general jurisdiction, it has jurisdiction of every equity cause which is not expressly withdrawn and excepted out of its jurisdiction, and by virtue of its superior original jurisdiction, it has power to take away all causes from all inferior equity jurisdictions by writ of certiorari, to remove them into the Superior Court, whenever the purposes of justice may require it, and at any stage of the proceedings.
    It is equally clear too, that the Circuit Court is an inferior equity court in mortgage and divorce causes, because by the Constitution, these causes may be removed by certiorari into the Superior Court, and the jurisdiction thus be taken from it by the Superior Court; and it is a court of special limited jurisdiction, and the rule which governs in ascertaining the extent of its power is, that if has no jurisdiction except such as is expressly given to it.
    As the jurisdiction of the Circuit Court is limited to mortgage and divorce causes, it has no jurisdiction to entertain an original cause or bill, which seeks a decree to vacate or annul deeds, or even to carry into effect a decree obtained in a divorce or mortgage cause in that Court. No such jurisdiction is expressly given it, nor can it take it by implication, because necessary to the carrying into effect its decrees in mortgage or divorce causes, any more than it could do as a court of law to carry into effect judgments upon the law side of the court.
    Jurisdiction to try, decide, and execute a decree in a cause, for the removal of obstacles to the execution of a decree in equity, or a judgment at law, by the cancellation of voidable or void deeds, is not jurisdiction to try, decide, or execute a decree or mortgage cause. Nor is jurisdiction by an original bill to carry into effect a decree in equity, or a judgment at law, jurisdiction to render a decree in a mortgage or divorce cause. It may be a suit to remove obstacles, or carry into effect a decree in a mortgage or divorce cause, or a decree in equity, or judgment at law in any other cause. It is immaterial what the decree or judgment is, or in what Court it is obtained, jhe removal of obstacles to the execution of which, or the execution of which by an original bill is sought, whether it be a mortgage or divorce decree, or any other decree or judgment,-r- in any Court, the question of jurisdiction is one and the same. An action of debt will not lie upon a judgment in a Justice of the Peace Court, before a Justice of the Peace, because it is an action to carry into effect a previous judgment obtained in that Court. Neither will any action lie in any law Court to vacate a deed made to defraud judgment creditors, because such deed is an obstacle, to the execution of a judgment obtained by such judgment creditors. Every Court, whether of limited or general, of superior or inferior jurisdiction,,may exercise every power properly pertaining to such Court, according to the regular course of the law for the exercise of its jurisdiction, whether it be for commencing and carrying on a cause to a final decree, or for executing a decree by the. regular process of the law against any resistance" which may be made to its process, or to the exercise of its jurisdiction. But this does not give Courts jurisdiction to try any and every cause which may affect or impede the rights of suitors acquired by virtue of and in consequence of a decree or judgment obtained ; otherwise there would be an end of all ancillary jurisdiction, or jurisdiction in a Court of Chancery founded upon the defective and inadequate jurisdiction and remedies of other Courts.
    If complainant has a right, by the remedy of an original bill, to vacate the legal title which, Lacoste has to the house and lot, by virtue of the deeds to Kane, to McMasters and to Lacoste, upon the ground that the deed to Kane is either void or voidable, because it was delivered before the purchase-money was paid and the sale confirmed, and McMasters and Lacoste both had notice of these /acts, or because McMasters and Lacoste were not bona fide purchasers, and for a valuable consideration, and has a right by original bill to have a decree to carry into effect his mortgage decree against the house and lot, so as effectually to make his mortgage debt out of the mortgaged premises, then the jurisdiction of this cause belongs to the Superior Court of Chancery, by virtue of its general jurisdiction, this cause not being expressly excepted out of its jurisdiction.
    The jurisdiction does not belong to the Circuit Court, because it being a Court of limited and special equity jurisdiction, the jurisdiction is not expressly given to it; and even if it were a Court of equal afid concurrent jurisdiction óf causes to remove obstacles and carry into effect decrees on equity and judgments at law, first obtained in its own Court, it has never first obtained jurisdiction of this cause.
    The Superior Court of Chancery, as both a Court of general original equity jurisdiction, and as a Superior Court also, would, if it were necessary to the purposes of justice, or to the complete exercise of its jurisdiction in this cause in order to carry into effect the decree of the Circuit Court against the house and lot,-have authority to remove the original cause by certiorari from the inferior Circuit Court.
    But although this relief is also asked in the event it should be found necessary, I am now satisfied it is wholly unnecessary, and shall not, therefore, urge the consideration or decision' of this point. I will barely mention, that although the Constitution mentions only the defendant as entitled to remove the cause by certiorari, this does not exclude the right of plaintiff for good cause, because being made an inferior Court, by subjecting its causes to removal by certiorari, the rule expressio unius exclusio alterius is not applicable, but th& reverse is the rule applicable to a Court of general and superior jurisdiction ; the jurisdiction belongs to it by virtue of its general jurisdiction, unless it is expressly excluded. It cannot be excluded by implication. The right of defendant to remove is expressed particularly, the right of the plaintiff is expressed by the general words, giving general original and superior jurisdiction, and depends on general law, to which the Constitution has reference.
    
      But it is unnecessary to remove the former cause. The Superior Court in this cause may decree the setting aside the former sale and the cancellation of the deeds, and leave the plaintiff then at liberty to execute his decree in the Circuit Court by an application to that Court to direct another sale of the house and lot for cash, or on credit of six months. Or it may go further, and by new decree direct the sale of the house and lot to satisfy the debt in execution, and satisfaction of the decree in the Circuit Court. Or it may decree a confirmation of the sale to Kane under the former decree, and that the purchase-money be paid, or that execution issue upon the bond, and that the house and lot shall be sold to pay the purchase-money ; and for any deficiency, that it shall be made out of property of the securities in the bond, and that the deeds to Mc-Masters and Lacoste should be vacated, unless the purchase-money, with interest thereon, is paid to Tooley, in satisfaction of the mortgage debt, either by Kane or Lacoste, or McMasters.
    The mere directions for its execution, which are contained in the former decree, are not res judicata and unalterable, except by bill of review. New and different directions may be given for enforcing the decree for the money out of the house and lot.
    But these are questions which properly arise at the final hearing, upon making the decree, and do not arise on the demurrer. The only questions for decision now are, has Tooley a right, by original bill, to have his decree'for his mortgage debt enforced against the house and lot, and to- have the title deeds, under which Lacoste now holds the legal title, cancelled as void, or voidable deeds, which obstruct the execution of his decree; and whether the Superior Court of Chancery has jurisdiction to gran.t this relief. The deed to Kane may be void at law for want of authority in the commissioner to deliver it before the money was paid, or the sale confirmed. The decree directed the commissioner to execute, but did not direct him to execute and deliver it before the money was paid, or the sale confirmed, and he should have returned it as part of his proceedings, with his report of the sale for confirmation, as directed by the decree. But whether the deed was void or voidable for this cause, plaintiff has equally a right to have them cancelled, as against La-coste, who had notice of these defects in the title of Kane, as they appeared on the face of his title. He was bound to'know the sale was unconfirmed and money unpaid, and if he,did not, it was crassa negligentia. And if it was either void or voidable for this cause, the title to Lacoste under it was equally void or voidable.
    But, if it was neither void nor voidable, yet if McMasters and Lacoste are fraudulent purchasers, Tooley has a right to vacate their deeds in order to enforce his execution upon the bond against the house and lot as Kane’s.
    The deed to Kane is void, for.want of authority in the master or commissioner who executed it, to deliver it to Kane before the sale was confirmed or the purchase-money was paid. He ought to have returned it in his report of the sale, as part of his proceedings, into the Circuit Court, for its approval and confirmation. It does not appear that the master, in selling the house and lot, did in any respect pursue his authority, by advertising the premises for sale, or by selling it on a credit of six months, for bond with security for the purchase-money. It is true, a bond is filed in the clerk’s office purporting on its face to have been tajeen umjer the decree ; but, without a report of the sale, there is no legal connexion shown; in other words, there is no proper, legal, and competent evidence of any connexion betweemthe bond and the decree. Before confirmation, too, the sale is incomplete; and, until confirmation,, there is no sale. Nor has the commissioner any authority to convey the title ; for the sale may be set aside because there was no advertisement, or for some other cause, which makes it wholly an illegal sale. Whether the sale was valid, and ought to be confirmed, or wholly invalid, and must be set aside, cannot appear but by a report of the commissioner. If the return which ■ is made by the master upon "the copy of the report be taken as a report, then it is clear the sale is illegal and invalid, as none of the legal requirements to the exercise of the master’s authority to sell are shown to have been observed. The deed was therefore delivered to Kane by the master in chancery without any lawful authority in him to deliver it: 1st, because the sale to him, Kane, was illegal and invalid, and could not be confirmed ; 2d, because it never was confirmed ; and 3d, because the purchase-money was never paid.
    Or the deed is voidable because the sale has never been confirmed, or, should it be confirmed, because the purchase-money has not been paid.
    Whether void or voidable,. Tooley has equally a right to have it vacated. If wholly void for these causes, then the titles to McMasters and Lacoste, acquired under it, are equally void, and Tooley has a right to have all these deeds cancelled, as clouds upon his title to sell the house and lot under the decree to satisfy his mortgage debt.
    If only voidable because delivered before the sale was confirmed or the purchase-money paid, then McMasters and Lacoste both knew, or were bound to know, these facts when they purchased ; as the facts appeared upon the face of the title to Kane, or sufficient to put them upon inquiry, and it was crassa negligentia in them if they did not know the money was unpaid, as they knew the house and lot must have been sold on a credit if legally sold, and, by inquiry, could have ascertained whether the purchase-money had been paid.
    But, even if the sale to Kane is complete,-and the deed to him valid, and neither void nor voidable for want of confirmation of the sale, or payment of the purcha,se-money, and if Tooley’s sole remedy now is to take out execution upon his bond, and make his money out of any property owned by Kane and his securities at the date of the forfeiture of his bonds, yet, upon the statements in the bill, Tooley has a right to have the deeds to McMasters and Lacoste vacated.
    He has a right to claim the house and lot, as still the property of Kane, and, as such, subject to his execution and the lien of his bond judgment, because the deeds to McMasters and to Lacoste are charged to be made to defraud creditors ; and if Tooley’s mortgage lien upon the house and lot, as a security for his debt, is wholly extinguished by the bond, yet as a judgment creditor upon the bond he may file his bill to have any deed from Kane, for any property whatever, vacated, because not bona fide and for a valuable consideration, but mala fide and without consideration, to defraud creditors.
    The rights of Tooley against Lacoste, then, upon the facts stated in the bill, are.
    
      1st. As mortgagee of the house and lot for the payment of his mortgage debt under his decree, he has a right to have the deeds to Kane, to McMasters, and to Lacoste, all vacated, because the' deed to Kane is void, or because it is voidable.
    2d. As a judgment creditor of Kane, if the deed to Kane is neither void nor voidable, he has a right to have the deeds to McMasters and Lacoste vacated, as made to defraud creditors, and as void under the statute of frauds.
    A court of equity has jurisdiction to decree a deed either voidable or wholly void to be delivered up to be cancelled, as its existence in an uncancelled state has a tendency to throw a cloud over the title. 2 Story’s Commentaries on Equity, p. 9, 10, 11, sections 699, 700, 701 ; 1 John-. Ch. Rep. 52Q to 524 ; 2 Swanst. Rep. 546 ; 11 Vesey, 535 ; 1 Madd. Ch. Pr. 186 to 190 ;_3 Bro. Ch. Rep. 16, note; 17 Vesey, 111; 5 Vesey, 606; 1 Ves. & B. 244; 10 Price’s R. 31 ; 13 Vesey, 581.
    When the Court of Chancery has obtained jurisdiction of a cause for one purpose, it may retain it generally for relief. 1 Story’s Com. on Eq. "88 ;' 2 John. Cas. 424 ; 10 John. R. 587 ; 17 John. R. 384 ; 1 John. Cas. 417; 1 Wheat. 197 ; 1 Munf. Rep. 98 ; 3 Conn. Rep. 139, 166 ; 3 Bibb, 303 ; Story’s Equity Pleadings, 343.
    Where a bill is brought to have the benefit of, a former decree, the plaintiff cannot examine witnesses to the matters in issue in the former cause; but, on such a bill, the Court may examine the justice of the' former decree, but then it must be upon the proof taken in the cause wherein the decree is made. 2 Vern. 409 ; 1 Ves. 245 ; 2 Madd. Ch. Pr. 523.
    In general, on a bill to carry a former decree into execution, the Court can only do that, and not vary it; but there are instances, where the. Court' has considered the directions, and whether there was any mistake, especially as between new parties. Westv. Skip, 1 Vesey, 245 ; 2 Madd. 523.
    An original bill to execute a decree of lands against a purchaser, who claimed under parlies bound by that decree, allowed good on demurrer. Organ v. Gardiner, 1 Ch. Cas. 231 ; 4 Bridgman’s Eq. Dig. 113.
   Mr. Justice Clayton

delivered the opinion of the Court.

•This was a bill filed in the Superior Court of Chancery by the appellant, stating that he had in the year 1835 sold a certain house and lot in the city of Natchez, to the defendant Gridley, for the sum of $7500, and had taken a mortgage upon the premises to secure the payment of the purchase-money. After the money became due, and there had been a failure of payment, he filed a bill of foreclosure in the Circuit Court of Adams county, and obtained a decree for the purpose, at its October term, 1838. By the decree, M. Izod, the sheriff of Adams county, was appointed to make the sale ; he'proceeded to do so, sold the premises to James R. Kane in January, 1839, and took his bond payable in six months, in pursuance of the decree, with Francis Little and Thomas Mac-kin as his sureties, for the sum of $>3700. This bond he returned to the Court, and executed a deed to the purchaser for the lot, though the sale, according to the statement of the bill, was never confirmed. This bond was not paid, and after its maturity, execution issued upon it, which was levied, among other things, upon the same lot for which the mortgage was given. There were other executions also in the hands of the sheriff at the same time, founded on judgments of older date than that of Tooley. The money arising from the sale was brought into Court, and a motion made by Tooley to have it appropriated to his execution. This motion was overruled, and the money applied to the executions issued upon older judgments. Another execution issued', which was levied on property of Little and Mackin, but after the sale, and at the return term thereof it was quashed upon motion. A part of the property sold was purchased by Tooley, and the residue by other persons, who failed to comply with the conditions of the sale. When the lot originally mortgaged was sold under the execution against Kane, it was purchased by one McMasters, and by him conveyed to La-coste. The bill alleges, that the purchase of McMasters was col-orable and fraudulent, that he made no payment for it unless with., the money of Kane, and that Lacoste purchased it of McMasters with a full knowledge that the money due to Tooley was unpaid, and that McMasters had paid nothing for it, unless with the money of Kane. It also charges, that Lacoste paid nothing for it, and that he holds it as trustee for Kane. That Izod never received the consideration from McMasters, nor did he advertise the sale according to law. The bill offers to surrender complainant’s deed to Mackin’s property, if the Court will set aside the sale to Kane. Prays that Kane, McMasters, and Lacoste, may be compelled to deliver up their deeds to be cancelled ; that the sale to Kane be set aside, and a re-sale directed ; that all the proceedings under the decree be set aside, and the decree regularly and duly enforced ; and, if necessary, that a certiorari be awarded to remove all the proceedings from the Circuit into the Superior Court of Chancery.

To this bill the defendants filed a demurrer, and assigned as causes, — 1. That improper parties were joined. 2. That the matter grew out of a proceeding in the Circuit Court on its Chancery side, and is part of a suit still pending there. 3. Tbat/ibe irregularity in the execution of the decree may be corrected in the Circuit Court. The Chancellor sustained the demurrer, and dismissed the bill for the want of jurisdiction ; from which order this appeal is taken.

At the commencement of the suit for the foreclosure of the mortgage, it was open to the complainant to have sought his remedy in either the Circuit Court or the Court of Chancery. ” He selected the former. He now seeks the aid of the latter, because of error or irregularity in the proceedings of the former, which has caused injury to him. The first error complained of, is, that the sheriff, who executed the order of sale, did not make advertisement, nor did he make report of the sale to the next term of the Court.

It does not very clearly appear from the bill, what is the present situation of the suit in the Circuit Court. If it is still pending, and there has been no confirmation of the sale, nor anything equivalent to it, then the sale of the sheriff under the decree is incomplete, and may be set aside in that Court. Confirmation of a report of sale is usually necessary to its validity. Ex parte Minor, 11 Ves. 559. The Circuit Court having jurisdiction to decree the foreclosure of mortgages, must have power to watch over the execution of its decrees, and to regulate all proceedings under them, until the case is finally disposed of. The Chancellor was of opinion that the cause was still pending, in such a state that the Circuit Court had power to afford relief by setting aside the sale. See Tooley v. Kane, 1 Sme. & Marsh. Chancery Rep. 518.

But if,- as we are inclined to believe, the acts of the parties in this case amounted to a confirmation of the sale, and vested the title in Kane, the purchaser, still the complainant has no right to the relief sought in this bill. The decree itself is peculiar and informal. It directs the sheriff “ to sell the premises on a credit of six months, the purchaser thereof to give bond and sufficient sureties for the payment thereof, to execute a deed, for the same to the purchaser, to bring the moneys arising on said sale into Court, and to make, report of his proceedings thereon, with all convenient speed, and to pay over the amount due him to the complainant.” What is psually embraced in the interlocutory and final decrees together, is all here blended into one. The commissioner is directed to execute a deed, and to collect and pay over the money in the first instance, instead of retaining this part of the decree, as the subject of the final order. If the complainant had objected to the form, of this decree, for that cause, it would no doubt have been modified ■to suit his views, and put in the usual shape. If he had objected to thfe sale for want of notice, or for want of a good bond and sureties, the Court would no doubt have set it aside, upon the requisite proof. Now if the money had been collected and paid over, no one would contend that any farther confirmation was necessary to pass the title ; and yet the complainant has given his assent to the sale as fully by accepting the bond, and by issuing executions upon it after it ripened into judgment. A confirmation by the parties themselves, by their own acts, is as valid as if by the Court. To this extent the acts of the complainant have gone in this case. The terms of the decree were not objected to by him, the credit of six months was suffered to expire ; then he caused execution to issue upon the bond given upon the purchase, and which had the effect of a judgment. After a sale had taken place under this execution, and the money had been applied by the Court upon his own motion, he acquiesced in the judgment of the Court, and made no effort by appeal or writ of error to get it reviewed or reversed. When another execution issued, and a sale was made under it, he became the purchaser of property, and accepted a deed for it; and when the execution was quashed, again acquiesced in the judgment. All these acts of confirmation surely bind him, and render the sale valid. This bill was filed in another Court, to get all these proceedings set aside, and to reinstate the complainant to the position which he occupied when the first decree was pronounced. The Chancellor was right in declining the exercise of any such jurisdiction. The Constitution has given no power to the Chancery Court to revise and correct the decisions of the Circuit Court on its Chancery side. Nor is it perceived, under what head of its original jurisdiction it can claim or exercise the power to set aside the whole or any part of the proceedings in another Court, which have transpired in a matter falling under.its legitimate cognizance. Irregularity in carrying the decree into effect confer no such authority. It was competent to the Circuit Court to pass upon and correct that matter; and it is not for a court of concurrent jurisdiction to interfere.

It is urged in argument, that the decree for a sale upon a credit was erroneous, because it impaired the obligation of the complainant’s contract, who had a right to have a sale for cash, and thus violated the Constitution. The mortgage was executed in 1835, and the law then in force in regard to sales upon credit, applied only to sales under decrees of the Superior Court of Chancery. H. & H. 512. The statute authorizing sales upon credit under decrees of foreclosure in the Circuit Court, and under which this sale appears to have been made, was not passed until 1838. If this objection had been urged at a proper time, it would have been entitled to much consideration. See Bronson v. Kenzie, 1 How. U. S. Rep.; Bumgardner v. Circuit Court, 4 Missouri Rep. 50; 1 Kent, Com. 418. The time, however, to urge it, was when the decree was made ; it was not the only time, but it was the most appropriate. If it had been urged and disregarded, he might have had it settled by the appellate tribunal. He did not do this ; he not only submitted to the terms of the decree without any expression of dissatisfaction, but he tacitly adopted and ratified the sale, by issuing two executions upon the bond given by the purchaser, and by claiming the proceeds of those executions. Unless the sale was incapable of ratification by subsequent confirmation, it would be a great stretch of power to attempt to annul it. So far as the sale to Kane is in controversy, the action of the Circuit Court, we think, is conclusive, because the complainant has confirmed it by his own acts ; and it is equally so, in regard to the appropriation of the money produced by the sale under execution, because no appeal or writ of error was taken from the decision.

The bill embraces too many objects and parties. It mingles matters over which the Court clearly has no jurisdiction, with some of which, if standing alone, it might take cognizance. Thus, if the lot really belongs to Kane, and McMasters and Lacoste are in effect but trustees for him, the complainant, upon a bill filed for the purpose, after a return of nulla bona upon his execution, might subject it to his debt.

It may be worthy of inquiry, too, whether in a sale under a decree of foreclosure, upon credit, a lien similar to a vendor’s lien is not retained by the Court as ultimate security, or whether it requires an express reservation in the decree to produce that effect. See Armiger v. Iglehart, 1 Bland, 519. We throw out the, suggestion without having formed any definite opinion. If the lien exist, the mortgagor need not be a party in the bill filed to carry it into effect. The matters settled by the first decree, and'the regularity and propriety of the proceedings under it, could not again be brought into litigation in the Superior Court of Chancery, because beyond its jurisdiction. It would be an original proceeding, not calling into question the proceedings of the Circuit Court, but endeavoring to enforce rights growing out of such decree. These remarks are made only to point out the limits of our opinion, so as not to mislead the party, or preclude him from any remedy or relief to which he may be entitled.

The decree of the Court below will be affirmed, and the bill dismissed without prejudice.

Note. The decision delivered in.the Superior Court of Chancery by the Hon. Robert H. Buckner, Chancellor of the State, when this case was before him, upon the demurrer to the bill, will be found reported in the 1st Vol. Srnedes & Marshall’s Chancery Reports, 518, to which the profession is referred.  