
    Nancy Gowan vs. Joseph E. Jones.
    As a general rule, a sale made by a commissioner in chancery under a decree to foreclose a mortgage, must be reported to the chancellor and confirmed by him, or there must be some act of the parties equivalent to a confirmation before the sale will be valid.
    It seems, that great lapse of time would be equivalent to a confirmation by the court of a' sale.
    In an action of replevin to recover possession of a slave, the plaintiff proved) by the record of the case, that a decree of the superior court of chancery had been rendered against the husband of the defendant for the foreclosure of a mortgage on certain slaves ; he also produced a bill of sale of the slave sued for, from the commissioner appointed by the decree to sell; but offered no evidence, that the sale by the commissioner had been confirmed by the' chancery court; the defendant aslted the court to instruct the jury, that without proof of a confirmation of the sale by the chancery court, they must find for the defendant; held, that the instruction was» a proper one, and should have been granted.
    In error from the circuit court of Simpson county; Hon. Stanhope Posey, judge of the first judicial district, presiding.
    Joseph E. Jones brought his action of replevin in the court below, against Nancy Gowan the plaintiff in error, to recover a slave named Eliza; various objections were taken to the pleadings in this court, but as they were not passed upon in the opinion, they are not here further noticed.
    The issue was on the plea of not guilty. And the jury found for the plaintiff below.
    From the bill of exceptions, it appears that the plaintiff claimed the slave in controversy, under a sale made by R. L. Dixon a commissioner in chancery, under a decree of foreclosure of a mortgage, the slave having been the property of, and mortgaged by Meredith Gowan, whose widow and administra-trix the plaintiff in error is.
    
      The record in the chancery case is made part of the record in this case, by which it appears, that there was a decree of foreclosure, and R. H. Dixon appointed as commissioner to sell the property mortgaged. He never reported his actions to the court of chancery so far as appears by the record; the last step taken being the decree of sale. The evidence that the commissioner did sell and that the plaintiff below purchased, consists of a bill of sale from Dixon and his receipt for the purchase-money ; and also the evidence of one Shields, who states that he was present at the sale when Jones purchased the slave, and she was afterwards in plaintiff’s possession. He also proves the defendant’s subsequent possession.
    There is also the evidence of one White to the same effect with respect to the sale by the commissioner, but he adds that he understood the plaintiff’s purchase to be for the use of a Mr. Green, and that he afterwards saw the slave in Green’s possession.
    On motion of the plaintiff, the court instructed the jury,
    1. That if the jury believe that the negro sued for is the same which was taken, by the defendant and detained by her, and that the legal title and right to possession is and was, at the time of such taking, in the plaintiff, they must find for the plaintiff.
    
      2. That the purchase of the negro under the decree in chancery, on a mortgage made by Meredith Gowan, by the plaintiff, and the payment of the money by him, and the conveyance to him by the commissioner, vests the legal title to said negro in plaintiff.
    3. That a mortgage of the negro by Meredith Gowan in his lifetime, and the forfeiture of the condition of the mortgage, divested his title to the same, and no legal title descended to his. heirs.
    The defendant, after moving instructions which were given, asked the following, which were refused : “ That unless they find, from the evidence, that the sale under the decree read to the jury, was reported to the superior court of chancery, and confirmed by the court, they should find for the defendant. That unless they find, from, the evidence in the cause, that the commissioner Dixon made sale of the slave according to the manner and mode, and upon the notice and terms required by the decree, that such sale is void and confers no title; and if plaintiff has shown no compliance with said terms, and has shown no other title, they should find for defendant.
    That the plaintiff must prove property in himself, and unless he has so shown in this cause, they should find for defendant, although she may have shown no title.”
    After verdict, the defendants moved for a new trial; the motion being overruled, he prosecuted this writ of error.
    
      D. Mayes, for plaintiff in error.
    After making various points on the pleadings and the form of the verdict, insisted that,
    1. The court erred in giving the plaintiff’s first instruction. That instruction refers to the jury, the question both of law and fact, whether the legal title and right of possession was in the plaintiff.
    
      2. The second instruction was wrong; for in it the court decide and instruct as- to both fact and law. Taking both the ■first and second instructions together, the court has clearly decided the whole case, referring nothing to the jury, although in the first, taken alone, the law and fact is all referred to the jury.
    3. Unless the sale was confirmed by the chancellor, the plaintiff acquired no title. The whole matter stood open, the bid being but a proposition made to the chancellor, he making the sale by his commissioner, and until accepted by him or until confirmation of the act of his agent, no title passed.
    4. If the commissioner did not conform to the decree, did not advertise, &c. the sale would pass nothing. It may be, that if confirmed by the court of chancery, this court would then understand that the essentials of the decree had been complied with. But the instruction proceeds upon the idea, that if the commissioner sold, the title passed, although he had, in every particular, failed to comply with the decree ; and, although the chancery court had never confirmed his acts. The power of the commissioner is a special authority, and to make his acts valid, should, at least in all substantial matters, be pursued.
    
      J. B. Thrasher, for defendant in error,
    insisted, that the verdict was correct, and should not be set aside. He cited Bar-ringer v. Nesbit, 1 S. & M. 22; Jenkins v. Whitehead, lb. 157; Leflore v. Justice, lb. 381.
    
      Wiley P. Harris and D. C. Glenn, on the same side,
    contended,
    1. That substantial justice had been done by the verdict, and it should not be disturbed. Graham on New Trials, 341.
    2. That the presumption was, in the absence of proof to the contrary, that the commissioner fairly and fully discharged his duty. Minor v. The President and Selectmen of Natchez, 4 S. & M. 602.
    3. That the objection of the want of confirmation could not avail when thus collaterally made; it should have been in a direct proceeding.
   Mr. Justice ThacheR

delivered the opinion of the court.

Joseph E. Jones instituted his action, under the statute of 1842, to provide and regulate the action of replevin, against Nancy Gowan, to recover the possession of a slave. The case is presented in this court, as upon a bill of exceptions to the ruling of the court on the trial, (Laws of 1846, c. 11, § 1,) and upon a motion for a new trial overruled.

The plaintiff below claimed the slave as a purchaser, at a sale made by a commissioner in chancery, under a decree of foreclosure of a mortgage, executed by the husband of the defendant, who is since deceased.

In support of his title, the plaintiff produced in evidence, a certified transcript from the superior court of chancery, of the cause under the decree of which he claimed to have become the purchaser of the slave in question. This transcript concludes with the decree in the cause, and does not exhibit that any report of the sale had been filed, or that any confirmation of the sale had been made by the court. The record contains as evidence, a copy of a bill of sale of. a slave, made to the plaintiff below by the commissioner of the superior court of chancery, and also his certificate of the payment of a bond executed for the purchase-money of a slave sold under a decree, in the cause whereof, the transcript is introduced in evidence.

Several grounds of error are claimed, but the case will turn upon the refusal of the court to grant a particular instruction, which seems to include the principal points of law embraced in the other instructions. In other respects, there is nothing that, in view of the decision here, demands comment.

The court refused to charge the jury, that unless they find from the evidence, that the sale under the decree read to the jury, was reported to the superior court of chancery, and confirmed by that court, they should find for the defendant.

In chancery, some reports are conclusive, and others require confirmation. Among the latter, is the report allowing the highest bidder at a sale under a decree, to be the purchaser. 1 Smith’s Ch. Pr. 358; Ex parte Minor, 11 Vesey Ch. 559. In Tooley v. Gridley et al. 3 S. & M. 514, one of the errors complained of was, that no report of a sale was made to the court. This court said that, “ there having been no confirmation of the sale nor anything equivalent to it, the sale under the decree was incomplete, and may be set aside by the court. Confirmation of a report of a sale is usually necessary to its validity.” It is not intended here to require the rigid strictness of a confirmation by the court. Parties, by their acts, may cause a confirmation as valid as if made by the court, or, perhaps, great lapse of time may be equivalent to a confirmation by a court. As exceptions to the general rule requiring a confirmation arise, it will be time enough to note them. In the present case, there is nothing presented in the evidence that warrants a deviation from the rule, and the refusal of the instruction asked, was therefore erroneous. The verdict could not have been rendered for the plaintiff below, had the instruction been given.

Judgment reversed and new trial awarded.  