
    Windle vs. Coffee’s Representatives.
    
    
      1. Where the defendant rested his title to real estate sued for upon a sale of mortgaged premises, by order of a Court of Chancery, and there was no order of sale, and confirmation of the sale, appearing on the record introduced as evidence of title: It is held, that the complainant should not be permitted to urge this objection, when the validity of the decree and sale hact been assumed by the parties in the pleadings.
    2. When a decree directed that real estate be exposed to public sale to the highest bidder for cash, at a specified time and place, and the Marshal made a deed, reciting that he sold upon an order of sale and a copy of the decree: It is held, that the sale was valid, though the record exhibited no order of sale or confirmation of such sale.
    Windle was indebted to Joel T. Coffee, and on the 27th of October, 1825, executed to him a mortgage upon a tract of land in Overton county. Coffee’s debt at the date of the mortgage was $1,238 21. In the beginning of the year 1827, Coffee with Windle’s assent went into possession of the tract of land, and so continued until his death, in March 1837. In the year 1827 the United States filed a bill in the Circuit Court of the United States, holden at Nashville, setting up a judgment against said Windle, charging Coffee’s mortgage to be fraudulent, and praying that it might he set aside, or if found to be Iona fide, that it might be foreclosed, the land sold, and after paying Coffee’s debt, the surplus applied to its debt. Coffee and Windle both answered this bill, denying the fraud and asserting the honesty of Coffee’s debt. A decree was made in this cause upon bill and answers, foreclosing the mortgage, and directing a sale of the land, to pay, first, Coffee’s debt. This decree bears date 15th June, 1829. No account was ordered or taken of rents or profits, nor was it demanded by Windle. This decree is as follows:—
    “Be it remembered, that the above cause came on to be heard before the Honorable John McLean and John McNairy, Judges, and upon this 15th day of June, 1829, upon bill and answers, and it appearing to the satisfaction of the court, that the said Joseph H. Windle was indebted to the United States as charged in said bill. It also appearing to the satisfaction of the court, that said Windle was indebted to said Coffee in the sum of $1,225 85$, as stated in the answer of the said Joel T. Coffee, and that the said land, described in said bill, had been mortgaged by said Joseph H. Windle, to the said Joel T. on the 27th day of October, 1825, to secure him in the payment of the aforesaid debt of $1,225 85$. It is, therefore, ordered, adjudged and decreed by the court, that said mortgage be forever foreclosed, and that said land be exposed to public sale to the highest bidder for cash, at the court house in the town of Monroe, in the county of Overton, on the first Monday of September next; and that so much of the proceeds thereof as shall be sufficient to pay the debt of the said Joel T. shall first be applied to the payment of his debt, and the balance, if any, or so much thereof as shall be sufficient, shall be applied to the payment of the judgment of the United States, as specified in said bill, together with the costs of the suit at law, and the costs of this suit, and the residue, if any, shall be paid over to the said Joseph H. Windle.”
    There is in the record a deed, dated 18th October, 1829, from Robert Purdy, Marshal, to Joel T. Coffee, which recites, that said land was sold under said decree, and by an order of sale issued under it. No such order, however, appears of record in the said Court of the United States, and the deed is the only evidence of the sale., Coffee received this deed, however, and had it registered in Overton county, April 28th, 1830, all the time keeping possession of the land.
    Nothing was said or done by Windle to question Coffee’s title, till about the year 1836, when Coffee having made an effort to sell the land, Windle interposed an objection, of what precise nature, it does not appear. Upon the sale to Coffee by the Marshal, it would seem, he bid only five hundred dollars for the land, leaving a large balance of debt still due by Win-dle. No steps were ever taken by Coffee, however, to enforce the collection of this balance. Windle during Coffee’s possession, occasionally cultivated, in'some way, some small portion of the land, and got fire wood, &c. from it, he residing near the land on another tract. Coffee, after Windle’s interference to prevent his selling the land, said on one or two occasions, that he would as soon have his money with 6 per cent as the land. Thus matters were when Coffee died in 1837; after his death his administrators attempted to collect of Windle the balance of the debt originally secured by the mortgage. Windle on the 27th of October, 1838, files his bill in the Chancery Court at Livingston, to enjoin the administrators from proceeding to collect said balance of debt; to be allowed to redeem the land, and for an account of all subsisting claims between him and Coffee’s estate. He alledges that the land was sold under the decree, but that Coffee bought under an agreement between him and Coffee, that it should be still redeemable, and that Coffee so held the land till his death. The agreement is denied by the answers and all the statutes of limitation relied on by way of defence. Eroof was taken, which failed to show an agreement as to redemption, and the bill was dismissed by Chancellor Williams.
    From this decree an appeal was taken to this court.
    
      James Campbell, for complainant.
    In the year 1828, Windle was indebted to the United States by judgment, and a bill was filed against Windle and Coffee, and in 1829, a decree was obtained, stating that Windle had executed said mortgage, and decreeing that the same be foreclosed, and the land sold, and the debt due Coffee firstpaid, and the balance be applied in discharge of the' judgment due the United States. In this decree no commissioner was appointed to execute it, nor does it legally appear it ever was executed, or that any thing was ever done with it as required by law. The decree remains a perfect dead letter on the records of the federal Court at Nashville.
    A deed is introduced into the record which deed recites, that James N. Menifee, Deputy for Robert Purdy, Marshall of West Tennessee, had undertaken to sell the land, and Coffee bought it for $500; the deed says there was an order of sale. It does not appear from the record that this formality was observed; it does not appear than any order of sale was ever issued; there is no evidence of sale or confirmation of sale; this is too recent an occurrence to indulge in presumptions. This sale if it ever did occur, of which there is no evidence, took place in 1829, the order of sale issued in 1829, this bill was filed in 1838, less than ten years afterwards; it will Be straining the doctrine of presumption too far certainly to say that. James N. Menifee was appointed to execute this decree, when there is nothing in the record to show it.
    To say that we will presume that there was an order of sale when there is nothing in the record to show it, and when the decree of the federal court does not appoint James N. Menifee or Robert Purdy to execute it, and does not command the Clerk to issue an order of sale, would be straining the doctrine of presumptions farther than ever this court was asked to strain it even in relation to proceedings before Justices of the Peace. You are asked in defiance of what appears in the record, in a case not ten years decided — to presume that James N. Menifee was appointed to execute this decree, when the record shows no such thing. This is not a case of a record being destroyed by time or accident; this is not a case of a record being lost; as they frequently are in controversies before Justices of the Peace. This is not a case where the record cannot be found, as they frequently are in controversies before Justices of the Peace, where they render two or three thousand judgments in the course of a year, and throw them all together in a solid heap. This is a case from the Federal Court, one of the most important judicial tribunals in the State, where the olficers of the court are presumed to be men of superior intelligence, learning and science in the administration of justice, and where we eaq-not but presume, if we presume anything, that a record is kept of every thing that is done, and where we cannot presume that the record is lost, for here it is produced and contains no appointment of Jas. N. Menifee to execute the decree, it contains no sale or confirmation of sale; undoubtedly the counsel of the defendants must show these things, and must furnish record evidence of the facts, if they wish to avail themselves of a title or pretence of title derived to them under the decree of the Federal Court; if they do not, the pretended sale of James N. Men-ifee is a nullity. Who authorised Jas. N. Menifee to sell this tract of land? Where is his authority? They produce a decree — that shows no authority. Where is his appointment? The record must show that he is appointed. They produce no record showing it. The proceeding then in the Federal Court is a perfect nullity; the burden of proof lies upon them, to show that this was a legal sale. They do not show it.
    The result of the matter is, if there was nothing else in the case, that Coffee having entered on the land as mortgagee, and nothing having occurred to change that relation since — he still holds as mortgagee. There is no statute of limitations as between mortgagor and mortgagee and the evidence fully establishes that the land was mortgaged by Windle to Coffee, and pending that relation of mortgagor and mortgagee Coffee took possession.
    He took possession then as mortgagee, and there is no statute of limitations; no lapse of time to bar Windle; his alledged purchase did not do it. His alledged void purchase under the decree of the Federal Court did not do it.
    2. But even supposing the sale under the decree of the Federal Court to have been valid, it did not change the relation in which Coffee held the land. The evidence fully establishes, that Coffee bought the land to protect Windle, as well, as to secure his own debt, and by the understanding of the parties the relation of mortgagor and mortgagee still continued.
    
      Edwin H. Ewing, for the defendant.
    1st. No redemption can be allowed because the case made out in the bill and denied by the answer is not sustained by the proof. The complainant fails to sustain his own case and the defendant makes out no case for Mm in the answer. The sale to and purchase by Coffee, are stated, are not impeached, arc admitted by the answers and the ground taken is of an agreement made by Coffee at the sale tq, permit a redemption as if the sale had not been made; this agreement is not proved. The cases on this point are familiar to the court. The last was one of Stockard vs. Robards Smith decided at the December ternf, 1844, of this court.
    2d. Suppose this view incorrect, or inapplicable, then it is argued that even if no agreement as stated took place, as there is no sufficient evidence of a sale under the decree, that after the decree of foreclosure, the possession of Coffee would be that of mortgagee and that Windle might at any time have an account and redeem. This court decided in the case of Wood vs. Jones, Meigs, 512, that the statute of limitation does not apply between mortgagor and mortgagee. Between Windle and Coffee this relation was dissolved by the decree of foreclosure, and the deed is evidence that it was claimed to be dissolved by Coffee, and from the time of the reception, and registration of that deed, at all events the statute would begin to operate between Coffee and Windle. What then is the effect of a decree of foreclosure. Its whole object is to bar the right of redemption. Where a sale is not ordered no one will deny that it has this effect. Where a sale is ordered and time is given the mortgagor to pay the debt, and he fails to pay the money within the time, can he stop the sale of the master by a tender of the money and by filing a bill again, to redeem, or must he let the sale go on and take the surplus? Has the rule adopted by our courts of having a sale and giving the surplus to the mortgagor changed the whole nature and effect of decrees of foreclosure? Can he forfeit his day, out of court, and in court, and come in at last and stand upon the same ground precisely as if there had been no laches and no forfeiture? Does he not by the decree lose his right in the land, as land, and retain only his right to the surplus? If he do, then the relation of mortgagor and mortgagee is dissolved by the decree of foreclosure.
    It is not denied that the mortgagor retains rights, but what are they? they are rights under the decree. He may have the decree enforced. He may file his bill to have it enforced, if there should be unreasonable delay, and this because of his right to the surplus. But if the relation of mortgagor and mortgagee is dissolved by the decree and the mortgagee after that remains in possession, especially if he receives and has registered a deed for the land, he may acquire a title to the land, as if the relation referred to had never existed. In this case there was more than seven years possession after the marshal’s deed.
    Suppose Coffee had not been in possession previously to the decree of foreclosure, but had gone and taken possession immediately after it, and neglected to have the decree enforced, would he have been in as mortgagor? What would have been Windle’s remedy? To apply to have the decree enforced? This it is now too late to do; at all events he has not applied to do so, either in the form of his proceeding, or in the proper forum. The United States must be a party to any proceeding having for its object the enforcement of the decree.
    A bill to redeem after a decree of foreclosure and without any new agreement, between the parties to the original suit, is certainly an anomaly. I can well understand how by the lapse of time, and a change of circumstances, it might become necessary to file a new bill to have an old decree enfoiced, and that accounts might have to be taken between the parties, by which the amount of debt might be varied, but certainly the very issue in the old litigation could not be brought up and again agitated.
    The decree on the Bill of the United States was a final decree and remained merely to be executed. It was á decree in favor of a party who had a right to redeem or to compel a foreclosure and sale, and Windle cannot now be heard to aver any thing against it. That Coffee’s possession was adverse from the date of the deed, there is no doubt, the law presumes it to have been so, and the evidence shows it to have been so. There is nothing then in the case to prevent the operation of the statute of limitations of 1819, Coffee having been in possession more than seven years under his deed before the filing of the bill. Windle’s cultivation and use of fire wood was merely permissive and he should have asserted his claim by suit. That a decree of foreclosure is a final decree, see Ray vs. Law, 3 Cranch 179; 4th Dana; 5th Stewart 133.
    3d. There is no offer in the bill to pay our debt, interest and costs, and this is absolutely essential in a bill to redeem. See Beeckman vs. Frost, 18th Johns, 554; and same case, 1st Johns, ch. Re. 288.
    4th. It may be that Windle would have had a right to redeem after a sale under the decree of the United States, had such decree been made in our State Courts, but this right would have been only a statutory right and must have'been exercised strictly in accordance with the statute. This right has no am alogy to the general right of redemption under a mortgage and does not affect the principles above laid down in regard to effect of a foreclosure.
    
      Meigs, for defendants.
    A sale though evidenced by a deed absolute on its face, and registered as a deed, will be a mortgage between the parties, if intended by them to be merely a security for a debt. And this intention may be shown by parol. - Overton vs. Bigelow, 3 Yerg. 513-521; 4 Kent’s Com. 142; Marks vs. Pell, 1 John. Ch. R. 594.
    But, then, this parol proof must be clear, decisive and without doubt, or otherwise no man would be safe in his .title, either to real or personal property. Lane vs. Dickinson, 10 Yerg. 373-376. Circumstantial, as well as -other kinds of proof, is competent to establish this intention. Thus, if the sale was for a very small consideration, that would be a circumstance leading to show the intention to give and reserve the right of redemption. Ibid; Conway's ex'rs. vs. Alexander, 7 Cranch, 241. An endorsement made on the deed by the party to whom it is made, that the maker of it was to have the property upon the payment of a certain sum; a credit of a certain sum endorsed, in which the payment is specified as part of the money advanced to the maker of the deed for the property conveyed in it, — these are circumstances from which the redeemable nature of the conveyance may be inferred. Goodwin vs. Hunt, 3 Yerg. 124-127; Yarborough vs. Newell, 10 Yerg. 376-380; Hammond vs. Hopkins, 3 Yerg. 525-532; Hiclman vs. Cantrell, 9 Yerg. 174, 180-183. See 1 Powell, Mort. 382, note H, and an “Epitome of points,” 389, note.
    In Whiting vs. White, Cooper, 1, same case 2 Cox, 290, the Chancellor, Alvanly, regrets that parol evidence was ever admitted in this class of cases; and says, “it ought to be clear, unequivocal, and to show a deliberate intention of giving a redemption.” 1 Powell, 382a, 383a.
    In this case, there is no evidence that Coffee at the time of the purchase, had promised that Windle should redeem, — except the circumstances of the low price at which the land sold.
    Execution sales have been sustained in this State, made under a fi. fa. irregularly issued. Russell vs. Stinson, 3 Hayw. 57-59; Waller vs. Whiteside, 4 Hayw. 191.' So where no judgment was entered on the verdict. Blackburn vs. Allen, 3 Hayw. 31-36.
    If sales at law can be sustained in the circumstances of the above cases, it would seem that irregular sales in equity would as effectually transfer to the purchaser a good title. In this case, if the purchaser had been a stranger, it would, according to the above cases, have vested the purchaser with a good title. The only reason why the sale in this case, can be said not to have this effect, is, that there was some agreement between the parties, that the mortgagee should purchase for the mortgagor. The evidence is not sufficient to show any such agreement.
    
      Goodall, for defendants.
    
      Fogg and Turney, for complainants.
   Reese, J.

delivered the opinion of the court.

The bill alledges, that the ancestor of the present complainants, in 1825, mortgaged a tract of land to his son-in-law, the ancestor of the defendants, to secure a debt of about $1200— and, about 1827, was let into possession of the land. About that time a judgment having been obtained against the complainant in the Federal Circuit Court at Nashville,' by the United States for a large amount, the said United States on the Chancery side of said court, filed their bill against said Win-dle and Coffee, to have a foreclosure of said mortgage, and a foreclosure of the same was decreed accordingly, and a sale ordered, and a sale made in 1829, at which Coffee became the purchaser for the sum of $500. But the bill further alledges that notwithstanding such decree, sale, and purchase &c., it was understood between said Windle and Coffee, that the relation of mortgagor and mortgagee should continue between them — and the object of the bill is to decree this a mortgage. Coffee died in 1837, before the filing of this bill. The answer is filed by his representatives, they admit the mortgage, its foreclosure, the sale made, and the purchase by Coffee.

They deny that at such sale, he acted at all on behalf of Windle, but insist, that he purchased for himself, and with the purpose to get a good title for himself. They deny that there was at the time of said purchase, or after, any understanding or agreement between Windle and Coffee, that the relation of mortgagor and mortgagee subsisting between them before said decree of foreclosure should continue. But they insist that Coffee for the balance of his life, a period of 8 or 9 years, continued in the exclusive possession of said land claiming to be, and exercising the rights of owner. It is obvious from this statement of the allegations of bill and answer,' that the only issue made between the parties, relates to the question of fact, whether at, or after the purchase by Coffee, it was agreed and understood between him and Windle, that the relation of mortgagor and mortgagee, and the rights incident to such relation should continue to exist.

It is not deemed necessary, that we should here state the evidence in the record intended to bear upon this question on either side. We will content ourselves with stating that there is no adequate or satisfactory proof to establish such agreement or understanding. 3

From this general statement, it would of course result, that we should dismiss the bill.

But the complainants insist here, that the record of the chancery proceedings in the Federal Court for foreclosure and sale of the mortgaged premises, filed as testimony by the one party, or the other in the court below in this case, does not show a valid sale of the equity of redemption, and an effective investment of title in the defendants’ ancestor.

The order of sale and its return to court and confirmation are not shown. There are two answers to this objection:

First, not only is there no issue made up between the parties, as to the legal validity of the decree of foreclosure, the sale and purchase, but the existence and validity of these proceedings are upon both sides assumed, or taken for granted.

If their validity had been questioned in the pleadings, or in the proceedings below, the record might perhaps have been made perfect. But, at all events in the actual state of the issue, we do not think the complainants should or can be permitted to place themselves upon that ground.

But, secondly, these proceedings are not void. The United States had a judgment at law, for the sum nearly of $6000, of which they sought satisfaction, by subjecting Windle’s Equity of redemption to sale. The defendants Windle and Coffee in, their answers both asserted the existence, and bona fides of the mortgaged debt. There was therefore no need of an account between them, none was prayed for by them; a decree was pronounced to foreclose the mortgage. This was a final decree, and terminated the relation of mortgagor and mortgagee, but the decree proceeds further to order that said land be exposed to public sale, to the highest bidder for cash, at the Court house, in the town of Monroe, in the county of Overton, on the first Monday in September next, and decree proceeds to direct how the amount of the sale shall be applied; here is a very remarkable decree, it fixes the terms, the place and the day of sale, it is more precise than an order of sale would be — a copy of the decree itself would be an order of sale. The marshal it appears made the sale, upon an order of sale and copy of the decree; so he recites in his deed to Coffee. No formal confirmation of the sale took place — all parties acquiesed; and we hold under such circumstances, that this sale is not invalid, but effective. Windle cannot complain, his mortgage was foreclosed, his equity of redemption sold. Nothing remains in him to be asserted in a court of equity, if the other side failed to obtain a regular title.

Let the decree of the Chancellor be affirmed.  