
    Horace Gridley vs. John Duncan and Edward Duncan.
    G. entered amotion in the circuit court of Adams county, to quash a levy and sale made by the sheriff of Washington county, because, before the levy and sale, and after the rendition of the judgment upon which the execution, under which the sale was made, issued, he, G., became a bankrupt under the act of congress in such case made and provided; and because the land levied on and sold was acquired by G. after his bankruptcy ; and also on account of the inadequacy of the price for which the land sold, &c., and the circuit court overruled the motion; held, that a motion was not the remedy compatible for the end sought to be obtained, and it was therefore properly overruled.
    On appeal from the circuit court of Adams county; Hon. Thomas A. Willis, judge.
    The record in this case shows the following facts, to wit : That on the 24th day of February, 1838, John Duncan and Edward Duncan, copartners, under the name and firm of John Duncan & Co., recovered a judgment in the circuit court of Adams county, against Horace Gridley, for the sum of $121 90, besides costs of suit. That on the 20th day of February, 1843, Gridley was declared a bankrupt, and obtained his discharge as such, by a decree of the district court of the United States, in and for the southern district of Mississippi. That on the 19th January, 1844, Thomas Barrett and wife, for the consideration of $750, conveyed to Gridley a tract of land in Washington county, in this state, containing 198 acres.
    That on the 16th day of November, 1844, John Duncan & Co. sued out an execution from the office of the clerk of the circuit court of Adams county, on said judgment, directed to the sheriff of Washington county, and made, returnable to the May term of said court, in the year 1845; which execution was received on the 6th January, 1845, and levied on said land. And on the 14th day of April, 1845, the sheriff of Washington county sold the same, and John Duncan became the purchaser of the whole tract, for-the sum of ten dollars. At the May term, 1845, being the return term of said execution, Gridley entered the following motion in said cause : “ Motion by defendant to quash the levy and sale made by the sheriff of Washington county, because that, before said levy and sale, and after the judgment under which said execution issued, the said defendant became a bankrupt, under the act of congress, in such case made and provided, and because the said land was acquired by said defendant after his said bankruptcy, and because of the inadequacy of price, and other causes set forth in affidavit and exhibits.” Notice was given to the attorney of record of John Duncan & Co., who, declining to defend the motion, it was continued, and actual service of notice of the pendency of the motion was made on the plaintiff in execution. At the May term, 1846, the motion came on to be heard, and was opposed by John Duncan & Co. on the ground that th^ court could not set aside said sale, or quash said execution, levy, and sale, by so summary a proceeding as that of a motion, which opposition was sustained by the court, and the motion overruled, and judgment rendered in favor of John Duncan & Co. and against Gridley, for costs. To which decision of the court Gridley excepted, and prayed an appeal to this court.
    The appellant assigns the following errors :
    1. The court below erred in overruling the motion of appellant.
    2. The circuit court erred in rendering judgment for costs against appellant.
    3. The circuit court erred in refusing to entertain jurisdiction of the motion made by appellant, for the causes assigned.
    
      Sanders and Price, for appellant.
    The only question involved in this case is the power of the court to entertain a motion of the kind, and grant the relief or render the judgment prayed for.
    A motion is defined to be “ An application to a court by one of the parties in a cause, or his counsel, in order to obtain some rule or order of court, which he thinks becomes necessary in the progress of the cause, or to get relieved in a summary manner, from some matter which would work injustice. When the motion is made on some matter of fact, it must be supported by an affidavit that such facts are true; and for this purpose the party’s affidavit will be received, though it cannot be read on the hearing.” Bouvier’s Law Dictionary, tit. Motion, where the following authorities are referred to: 1 Binn. R. 145; S. P-2 Yeates R. 546. See 3 Bl. Com. 304; 2 Sell. Pr. 356; 15 Yin. Ab. 495; Grah. Pr. 542; Smith’s Ch. Pr. Index, h. t.
    Motions of this sort are familiar in practice, and between the parties to the suit the court has a necessary control over them until its process has performed its final office, and the parties are out of court.
    vln this case the plaintiffs had abused the process of the court; the defendant calls upon them in a summary way for “ relief of a matter that would work injustice.” See 7 J. J. Marshall R. 41, 42; Carlisle v. Carlisle, lb. 625. Also 5 Dana Ky. R. 304, where the court decides that a motion is one of the means whereby to prevent the infliction of injustice by the process of law.
    In this case it appears that the plaintiffs are the purchasers, after notice of discharge of defendant under the bankrupt law, of a property worth near $2000, for the sum of ten dollars. The motion is made at the return term of the process, whilst the court has control over it. Had a stranger purchased without notice the law might have been different. The parties are duly notified of the motion, appear to it, and resist it, not upon its merits, or the controverting any fact alleged, but because the court could not set aside said sale, or quash said executionj levy and sale, by so summary a proceeding as that of a motion, and the court sustains the opposition, and refuses the motion, with cost.
    
      The defendants in the motion below, now appellees, rely upon the case of Flournoy v. Smith, 3 How. 62-65. In that case, G. W. Steel, for use of ——, recovered judgment against W. F. Smith & Co., after which a forthcoming bond was given, and an alias fieri facias was issued, and levied upon the lands of the defendants, and sold, and the execution returned satisfied.
    Afterwards the defendants moved the court to set aside the sale on the following facts : The sale was properly advertised; but on the day of sale, the sheriff declared, that on account of his ill health, he was unable to conduct it, and constituted one Wesley Drane his deputy for that purpose. Flournoy, one of the deputies of the sheriff, became the purchaser of the land, being the highest bidder, and received a title for the same from the sheriff. The motion was sustained by the court below, but reversed by this court, in the opinion delivered by Judge Trotter, in which cause the following introductory remarks are made: “ This proceeding is based on nothing more than the return of the officer, indorsed upon the writ of fieri facias, of the levy and sale of the land. No process issued to bring Flournoy into court, or to make him a party to the motion.” He also recites, “ that Flournoy, on the face of the record before the court, had a valid title to the land sold by the sheriff, and his title could not be affected by any irregularity of the conduct of the officer who sold it.” That was a very different case from the one now before the court, and cannot, with any propriety, be regarded as analogous with this. There the purchaser was a stranger to the record ; no suggestion of any inadequacy of price, no suggestion of the bankruptcy of the defendants and their discharge from all their debts. Here the plaintiffs are the purchasers; they abuse the process of the court, by suing out its process after a discharge, and buy for a song, with a full knowledge of all the facts; and when the court is asked to quash their illegal proceedings, of which they are the perpetrators, they modestly object to the forum, whose authority they have abused, and endeavor to turn the party whom they have wronged, to some other tribunal, where I suppose he would be met with some other objection equally tenable.
    
      We rely that the p'ower is necessarily incident to the court, in a case like this, and that every principle of justice requires that it should be enforced. We therefore insist that the judgment of the circuit court be reversed, with instructions to the court below to sustain the plaintiiFs motion, with costs.
    We also refer the court to the following authorities, omitted before, to wit: .Bouvier, in his Law Dictionary, vol. 1, 105, describes the “ audila querela,,” spoken of in the case referred to in 5 Dana, to be “ an obsolete writ, by which a defendant against whom a judgment had been recovered, and who had since discharged the same, might have been relieved from its operation. But now the courts will grant relief, on motion, on the facts being proved; ” refers to 3 Black. Com. 405 ; 1 Bac. Ab. 308; 2 Saund. 148, n. .1 ; 2 Sell. P. 252; to which we also refer this court. Also to the case of Stover v. Boswell, 3 Dana, 232, in which the following language is used at page 235 : “ The last case was decided, on motion to quash the sale of land, which is certainly the most regular mode to reach the injury, and clear away the embarrassment from the land, as the court upon setting aside the sale, may also set aside the return of the officer, especially when the purchase is made by a plaintiff in execution, and disincumber the property pretended to be sold, as well as the execution from the illegal arid unauthorized proceedings.”
    
      L. Madison Day, for appellees.
    Where real estate is sold at a sheriff’s sale, the sale, whether valid or not, cannot be set aside on a motion. 3 How. 62.
    The court then did not err in overruling the motion in this case, to set aside the sale of the sheriff of Washington county.
   Mr. Justice ThacheR

delivered the opinion of the court.

This was a motion in the circuit court of Adams county, to quash the levy and sale made by the sheriff of Washington county, because that before said levy and sale, and after the judgment under which said execution issued, the said defendant became a bankrupt, under the act of congress, in such case made and provided, and because the said land was acquired by said defendant, after his said bankruptcy, and because of the inadequacy of price, and other causes set forth in affidavits and exhibits.”

The facts of this case, as presented by the record, are different from those in Flournoy v. Smith et al. 3 How. 62, and probably present a much stronger case; but it must be observed that the decision in Flournoy v. Smith et al. was not made upon the merits of that case ; but upon the question of law, whether a motion could be entertained whereby to determine the merits, that is, whether a motion were the appropriate remedy. In that case, this court said : “ But it is conceived that the court below had no power to determine these questions, under a mere suggestion or motion. The constitutional law of this country provides, that no man shall be deprived of his liberty, life, or property, except by due course of law. Is it according to any of the forms of proceeding, known to the common law or statute law of this state, for the presiding judge, in a court of common law, to divest another of his title to the freehold in land, upon a naked motion ? A law which should confer such a power, would be an infringement of the right of trial by jury, so cautiously guaranteed by our fundamental law to every citizen. What is the effect of the judgment in this case? It is to dispossess Flournoy of the land in question. But how is the court to enforce its judgment ? Can it order a writ of habere facias pos-sessionem? Can it order the sheriff’s deed to Flournoy to be delivered up to be cancelled? Has the judgment that effect? Surely not. It can then have no effect whatever, and is, therefore, totally void. For this reason, the judgment of the court below must be reversed, and the motion dismissed.” It will be thus clearly seen, that a motion is not the remedy compatible for the end sought to be obtained, and that the circuit court did not err in overruling the motion.

Judgment affirmed.  