
    Joseph Durant v. Mary Atkinson.
    The Court exercises a sound discretion over motions for new-trial, as a preventative of injustice arising from mistake or surprise: Thus a new trial was awarded, for the purpose of giving one of the parties leave to move the Circuit Court to rescind an order, which, there was a reasonable probability for believing, had been made under a mistake as to facts.
    A mortgagee of personal property, which has been sold by the sheriff under execution, at the suit of other parties, cannot interpose his claim to the proceeds of the sale, by a mere motion to the Court, but must resort to his action. No person is entitled to a rule, but the parties appearing on the record in Court.
    Although consent of parties cannot give jurisdiction, yet where the Court has jurisdiction of the subject matter, an order may be made in relation to it for the benefit of a third person, with the consent of the parties litigant, and will bind them. Thus when the sheriff and defendant consent, the former may be ordered to pay over to a mortgagee a surplus in his hands after satisfying executions senior to the mortgage, and such an order is conclusive on the sheriff.
    Regularly no order ought to be made, unless all parties to be affected by it ■ have been duly notified; andaré represented in Court, or have consented in writing; but where an order has been made, it will be presumed to have been regularly made, until the contrary appear.
    Tried before Mr. Justice Johnson, at Sumter, Fall Term, 1830.
    Assumpsit for the price of certain slaves sold by the plaintiff as sheriff of Sumter District, and purchased by the defendant. The slaves were sold as the property of Randal Praeey, and under execution against him. Subsequently to the sale, the defendant interposed a claim to the proceeds, under a mortgage to her of the same slaves, executed by Bracey on the 7th June, 1823; and on her motion, an order was entered at March Term, 1826, requiring the sheriff to pay over to her the sum of $374,13, being the residue of the proceeds of the sale, after satisfying executions in his office older than the mortgage. The defendant relied upon this order, as an answer pro tanto to the present action.
    The plaintiff in reply, proposed to shew, that at the time, when the order was made, there was in fact an execution in his office in favour of James R. Douglas & Co. senior to the mortgage of the defendant, having been lodged on the 26th of May, 1822, and for an amount exceeding the surplus mentioned in the order, but which had not been taken into the account of executions senior to the mortgage : He further offered to prove, that this omission had been occasioned by an improper indorsement of the execution, by which he had been led to suppose, that it created no lien on the estate of Raudal Bracey; but, that the Court had since declared that the execution was a lien, and he the plaintiff had been ordered to pay to James K. Douglas & Co. the same money, which by the order of March, 1826, he had been directed to pay to the present defendant.
    His Honor, the presiding Judge, held the order of March, 1826, conclusive on the plaintiff, and that it was incompetent to him to avoid it in this action, by evidence of its having been made under mistake. The jury in their verdict allowed the defendant credit for the sum of $374,13 ; and now, the plaintiff moved for a new trial, on the following grounds :—
    1st. That the order of March, 1826, was a mere nullity, the Court having no jurisdiction of the defendant’s rights as mortgagee.
    2d. That if not absolutely void, it was merely an agreement of the plaintiff, and not a judgment of the Court, and was liable to be avoided by proóf that it was founded in error, and was without consideration.
    3d. That to prevent injustice a new trial should be granted, to enable the plaintiff to set aside the order by a direct proceeding for that purpose, if the Court were of opinion that it could not be done in the present action.
    Branding, for the motion:
    Contended that the order of March, 1826, was made without juridiction, inasmuch as the mortgagee was not a party to any proceeding before the Court, and could not be made a party merely by motion: That although a contrary practice had prevailed, and had even received the sanction of the Courts in some early decisions, Ash n. Ash, 1 Bay, 304. Ash v. Livingston, 2 Bay, 80. Exparte Stagg, 1 N. & M. 405 ; yet it was against principle, and was an injurious innovation which ought to be repressed: That in the cases referred to, the question of jurisdiction had not been made or considered; .and even were their authority more direct, yet they had been overruled as to this point by the later decisions in Exparte City Sheriff, 1 M’C. 399. M’Clure v. Mounce, 2 M’C. 424. and the State v. Laval, 4 M’C. 336. It is true, that in the cases last cited, the question was made by a mortgagee of real estate ; but no difference in principle existed in the case of personal estate, and it was an idle refinement to rest the decision on any other ground than that on which it had been placed by one of the Judges in Exparte City Sheriff, “ that the mortgagee was a mere stranger, and could not be known to the Court.” perNott. J. 1. M’C. 402.
    If the Court had not jurisdiction intrinsically, the consent of the parties could not give it. Bents v. Groves, 3 M’C. 280. Simpson v. M’Million, 1 N. & M. 192. And if the Court had not jurisdiction, then the order was void. The rule that every final judgment of a Court is conclusive, is always qualified with the limitation that the Court had jurisdiction of the subject matter. Rosen. Eimely, 4 Cranch, 241. Bee’s Rep. 328 S. C.
    As a judgment, then, the order was void: If it is to be regarded as an agreement binding on the parties to it, then being still executory, it was open to impeachment for mistake, and want of consideration, and the evidence offered at the trial was therefore improperly excluded.
    In any view of the case, it is one of obvious hardship and injustice, and calls for the exercise of the sound discretion which this Court possesses of granting new trials, whenever they are necessary, to prevent injustice. If the question of mistake cannot be tried in this action, a new trial ought to be awarded, with leave to the plaintiff to move for the rescission of the order before the proper tribunal.
    Moses, contra.
    
    Relied upon the cases in 1 Bay, 304. 2 Bay, 80. and IN. & M. 4Ó5. which established 110 new doctrine, but merely recognized a practice coeval with the jurisprudence of this State, and which had never, until now, been called in question. It is a mistake to say that these cases have been overruled. In the case of the city sheriff, 1 M’C. 399, the decision was upon the express ground that the sheriff had sold nothing but the equity of redemption, and, therefore, the mortgagee could have no interest in the proceeds. So far was the Court from overruling the former cases, that great pains are taken to distinguish the respective circumstances of each, and to reconcile the doctrines of both. The same remark is applicable to the cases cited from 2 M’C. 424, and 4 M’C. 336 : and none of them apply to the case of personal property, where the sheriff has sold the corpus ; 
      and where, if the mortgagee is entitled to any thing, it is to the proceeds of the sale in the hands of the sheriff.
    4 Inst. 240. 1 Inst. 186. a.
    It is said thatthe practice is an innovation upon principle — But is it more an innovation than permitting the owner of a dormant execution to come in, and sweep off the property which the activity of a junior-execution creditor has discovered, and pointed out to the sheriffs And yet this practice, which is peculiar to this State, is said by a high authority, to be “too well established by a series of decisions to be now controverted” — per Nott J. 4 M’C. 342. The letting in of the mortgagee stands on the same principle, by which the owner of the dormant execution is let in : In both cases it may be said to be an innovation, for both are strangers — and equally strangers — to the proceeding under which the money has been brought into Court. It is, however, a most wholesome innovation, for it advances justice, by adjusting the priority of conflicting liens according to the rules of law, at a great saving to the parties, both of delay and of expensive litigation. If ever there was a case in which long continued practice should be allowed to sanction an innovation, and the maxim communis errorf zeitjus be held to apply, it is here. But at all events, if the practice is to be suppressed, it ought to be suppressed in all its parts; and the mortgage creditor ought not alone to be deprived of its benefit.
    If the order of March 1826, be not void, this Court has no jurisdiction to rescind it on the ground of mistake ; and it will scarcely grant a new trial, merely because the plaintiff has neglected to apply at the proper time, and to the proper place, to have it rescinded. The case of the plaintiff and defendant is one of reciprocal hardship; and there is no injustice in the claims of the defendant to authorize a new trial on that ground.
   O’Nearl J.

delivered the opinion of the Court.

In this case, three questions present themselves for consideration: 1st. Had the defendant as mortgagee the right to rule the sheriff to pay over to her the money arising from the sale of the negroes of Bracey % 2d. Can an order, made for the payment of the money to her, be supported ? 3d. If it can, may not the plaintiff be allowed to move to have it rescinded, as obtained by mistake.

The first question is one which has not as yet been directly decided. In cases of mortgages of real estate, the Courts of this State have repeatedly decided that they have no power to interfere by rule at the instance of the mortgagee. Exparte City Sheriff, 1 M’C. 399. M’Clure v. Mounce, 2 M’C. 424. State v. Laval, 4 M’C. 336. So that in cases of real estate the question *s at rest> an<^ onN remains to be seen whether the Court will interfere by rule at the instance of a mortgagee of a personal chattel. I have no difficulty in coming to the conclusion that an original motion for a rule at his instance ought to be denied. No person is entitled to a rule, but the parties appearing on the record in Court. The mortgagee of a personal chattel, in that character is not, and cannot be a party in a Court of law: for he is the owner of the chattel, subject it is true, to a condition defeazant, upon the compliance with which he is divested of his right of property. He may maintain trespass against any one who should wrongfully seize it, as in the case of a levy by the sheriff, under an execution junior to the mortgage : or he might maintain assumpsit for the surplus left after satisfying an elder execution. As mortgagee, his remedy of foreclosure is either by his own act in-taking possession of and selling the chattel, or by the intervention of the Court of Equity. He may deliver his mortgage to the sheriff, and make him his agent to sell. But this is a personal and not an official agency. A case might-be conceived, where the mortgagee on a rule against the sheriff by an execution creditor, might perhaps obtain an order to be made for the payment of the money to him. As where a senior and junior execution are levied, and the mortgage is interposed, and the sheriff constituted the mortgagee’s agent to sell; in such case, on the sheriff’s returning these facts, and they not being contested, I incline to the opinion that the Court might order the surplus after satisfying the elder execution, to be paid to the mortgagee : but this is a mere obiter dictum, and is not intended to indicate a settled opinion.

2d. Notwithstanding that the defendant as mortgagee is not in that character entitled to a rule, yet it may be, that an order directing a payment to her would conclude all parties to it. Ináquestion involving as this does, the jurisdiction of a Court to pronounce the order which was made in favour of the defendant as mortgagee, this distinction should be borne in mind: that when the Court has no jurisdiction over the subject-matter presented to it for adjudication, consent can never give it jurisdiction; but if the matter is within its jurisdiction, and in litigation between the parties before the Court, and a third party applies for relief in that matter, which cannot be granted to him for want of jurisdiction, then I apprehend that if the parties litigant consent that he should have the relief which he seeks, the Court may grant the order, and it will conclude them. As a general rule, the Court is bound prima facie, to presume every thing necessary to support a judgment. Here, the order is the only thing appearing on paper. If in any state of things that order could be regularly made, it is our duty to presume that they all appeared to the Court before it was granted. The defendant, in the execution under which the levy and sale were made, would, after satisfying it and all other executions in the sheriff’s office against him, be entitled to rule the sheriff for the surplus. He could authorize any one he pleased to receive it. If he authorized the mortgagee to do so, she would for this purpose be in the place of the defendant, and might in that way rule the sheriff, and obtain an order making the rule absolute. If the defendant and sheriff in Court, on a rule against the sheriff by the defendant for the surplus, consented that it should be ordered to be paid to the defendant, the mortgagee, then it would follow that the order could he rightfully made, and would conclude them. Presuming then, that one or the other of this state of facts was presented to the Court, we should be constrained to say that it had jurisdiction to make the order, and that the plaintiff was concluded by it. In coming to this conclusion, we are not unaware that orders are frequently granted on exparte applications without due investigation. The practice ought to be, that an order should never be granted, until all parties to be affected by it were regularly notified of the motion, and were represented in Court, or had consented to it in writing.'

3d. If the plaintiff’s case had rested on the abstract question as to the effect of the order, his motion would have failed; but he alleges now, that that order was obtained by mistake, and this fact is founded on a reasonable probability. For it appears that at the time he sold the negroes, and when the order was obtained in favour of the defendant, he had in his office an execution for about $400, marked “ Jas. K. Douglas v. Randall Bracey, executor of S. Bracey,” elder than the mortgage. This execution, it now appears, was against the mortgagor, R. Bracey, in his own right, and not as executor. The sheriff might have been misled by the erroneous marking of the execution, and under this belief may have concluded that all liens elder than the mortgage, were satisfied, and hence may have consented to the order. If this be so, he ought not to be prejudiced by it. This Court will not willingly see injustice done to any one, unless forced to it by some positive rule of law. Over motions for new trials, and, as a preventative of injustice, arising from mistake, or surprise, the Court exercises a sound discretion. The exercise of that discretion in this case, may prevent injustice to the plaintiff, and cannot injure the defendant.

The motion for a new trial is therefore granted, and leave is given to the plaintiff to move the next Court of Common Pleas for Sumter District, to rescind the said order.

Johnson J. and Evans J. sitting for Harper J. who was absent from indisposition, concurred.

Motion granted.  