
    Deaderick et als. vs. Smith et als.
    1. A court of chancery has inherent power to execute its own decrees. It has under its control all sales made by the clerk and- master. It may open the biddings, set aside sales, or enforce and execute them by giving decrees against . the purchasers and their sureties on failure to pay the purchase money as stipulated.
    2. Suits on notes executed for the purchase money of estates sold at chancery sale, instituted in courts of law, are improper and may be enjoined but not hi any other court than that in which the original chancery suit is pending.
    In this case the defendant, M’Gregor purchased at the sale of the Clerk and Master under a decree of the Chancery Court at Franklin in the suit of Deaderick and others vs. Horton and others, a portion of the real estate on a credit of one, two and three years, and gave his notes as security for the payment thereof. •
    All the notes have fallen due and upon the first two, judgments have been recovered in the Rutherford Circuit Court against M’Gregor and his sureties, to stay the collection of which M’Gregor filed a bill and obtained an injunction in the Chancery Court, at Murfreesboro’. Upon the last note at the May term, 1845, judgment was recovered in the Davidson Circuit Court against the sureties of M’Gregor, by Litton.
    Upon this statement of facts at the October term, 1845, of the Chancery Court at Franklin, the Chancellor, (Cahal) upon motion of Litton by his solicitor, gave a decree against M’Gregor and his sureties for the principal and interest of all of said notes and awarded execution, timely notice having been served upon M’Grsgor and his sureties. From this decree an appeal has been taken by M’Gregor and his sureties to this court.
    R. C. Foster, for complainants.
    It is insisted by M’Gregor that the Chancellor had no jurisdiction to give a decree against him and his sureties.
    1st. Because M’Gregor and his sureties were not, and are not parties to the suit of Deaderick’s heirs vs. Horton and others for this purpose, nor is there any decree made in that suit to which M’Gregor and sureties are parties, nor did M’Gregor become a party-by purchasing land at the sale of the clerk and master. This question is expressly decided in the case of Bligh vs. Earl of Darnley, 2 P. Williams, 621.
    2nd. Because when’ M’Gregor gave his notes with surety payable in one, two and three years to the clerk and master, he executed and completed his contract in full, and the decree of the court was complete and ended so far as the sale was concerned, and the only way -m which M’Gregor could be brought into court would be by a bill or petition for the specific performance of his contract.
    3rd. If the Chancellor had jurisdiction at all, it could not be exercised as has been done in this case, but should have been exercised in the following way: An order should have been made by the court upon M’Gregor and his sureties for the payment of the money by a certain day, and if such order was not complied with upon notice thereof given to M’Gre-gor, then an order should have been made to pay the money by another given day, or that M’Gregor should stand committed for contempt. 2 Maddock, 402, 403; 14 Yes. 207; 12 Yes. .325; 3 Madd. Chancery Rep. 122, top page; 6 Yes. 485.
    4th. The chancery court acts in'personam and not in rem, and in no case has it the power to issue execution to operate in rem except specially given by statute, and no such power is given in the present case. It is not conferred by the Act of 1787, G, 22; nor by the Act of 1809, C. 49; nor by Act of 1811, C. 72; nor of 1813, C. 78; nor by the Act- of 1827, nor of 1835; for these several acts only confer upon the Chancellor power to issue execution to fulfil decrees in cases where he had power to make a decree, and in this case he had no jurisdiction nor power to render the decree.
    5th. The power to render judgment in a summary way upon motion, is in derogation of the common law, and cannot be exercised either by a judge or chancellor, except specially conferred by some statute, and there is no statute conferring such power upon the Chancellor in this State.
    6th. If the Chancellor did ever have the power to render a decree and award execution in this case, that power and jurisdiction was taken from the chancellor by the election of Litton to prosecute suits upon the notes at law; the circuit court having jurisdiction to render judgments upon the notes, and haAdng rendered such judgments, no other court can entertain suits upon the notes, they being merged in the judgments. The rendition by the circuit courts of judgments upon the said notes was a legal satisfaction of the notes. If a court of law and a court of chancery have concurrent jurisdiction of a matter, the assumption of jurisdiction by one court at the election of a party, ousts the other cóurt of jurisdiction of that matter. 1
    
    
      James Campbell, for complainant.
    The only questions for the court to decide are — Has the court of chancery at Franklin jurisdiction to pronounce the decree which they have pronounced and which is appealed from?
    
      2. Have they such jurisdiction after judgments at law have been recovered, and judgments upon the two first notes have been enjoined in chancery court at Murfreesboro’?
    In support of these propositions, it is contended on the part of the complainants that a court of chancery like every other court has jurisdiction, or in other words the power to execute its own decrees.
    M’Gregor and his sureties became parties to the suit of Geo. M. Deaderick and others vs. Sidney Smith in error and others, by the purchase of the tracts of land which were sold under the decree of the court in said case, and giving their obligations for the purchase money to an officer of the court. They were to pay said obligations when they became due; and M’Gregor was to receive a title at the hands of the court. In addition to this he had notice of this decree, and was defended by his counsel. The question, therefore, is — Does the jurisdiction of the court of chancery cease with the sale that has been made? or does it continue afterwards until the purchase is completed? or in other words, until the terms of. the sale are complied with? It is to continue, as will not be controverted by any one, for the purpose of making to M’Gre-gor his title; then why does it not continue to make M’Gre-gor pay for the land? — upon the payment of which he is to receive his title. A purchaser under a decree will be compelled to execute the contract on a rule to show cause. Gordon vs. Sims. 2d M’Cords Chy. Rep. 185.
    So he can have his writ of possession or injunction to cause the possession of the land to be delivered up to him. Gowan vs. Sunwalt, 1 Gill and Johnson, 511.
    By the former rules of a court of chancery, independent of any statute, the Chancellor .acted in personam in the enforcement of his decrees. If this was a case before the court of chancery in England, the Chancellor would order M’Gre-gor and others, to pay the money into court; and if they did not pay it, to commit them to prison. By our statute of 1787, chapter 22, it is provided that execution shall issue as at law for the enforcement of any decree for the payment of money. If then the Chancellor in England would have jurisdiction to enforce the payment of these notes, or to pass an order upon M’Gregor and his sureties to pay them, or in other words, to complete his purchase or to stand committed, the Chancellor here can pronounce his decree that the notes shall be paid, and execution shall issue as at law to enforce the payment.
    It may be contended, as it was in another case, before another Chancellor, involving the same principle of the present, that the purchase is complete by the purchaser executing his notes with security, the report of sale by the clerk rules made it, and the confirmation of that report by the court.— This objection has no force. The court sold the land on one, two and three years’ credit, .taking bond with approved security for the payment of the purchase money. They did not sell the land for notes; they sold it for money, on a credit to be sure — but still for money, and as a means for securing the payment of the money, they took the notes with security for the money payable at the .times the instalments fell due. The fund remained to be collected and disbursed under the direction of the court, and the title to be made. The whole proceeding was in fieri, or in course of execution until the money was paid into court, and the title was decreed.
    Let us look a little at the consequences of a different course of proceeding. And here I will put a suppositious case — but I will begin by stating what has actually occurred in this very case. Here the Chancellor at Franklin has ordered the sale of the property and he has conSrmed the contract of sale. The Chancellor at Murfreesboro’ has ordered an injunction to stop the collection of the money; in other words, to stop the execution of the decree. The Chancellor at Franklin says go on and execute my decree. The Chancellor at Murfreesboro’ says stop, you shall not execute it.— Now, does not the consequence follow, that takes place in all other- cases, that the court first having jurisdiction of the controversy*; must have the right to decide. In other words, the court having jurisdiction of the case, has jurisdiction of such case, and no other tribunal has the right to interfere with it, while it has jurisdiction of the case.
    In the case of Wood vs. Mann, 3d Summers Rep. 318, the very principle involved in this case was decided. In that case, by decretal order of the court, .certain lands were sold by the master, and the purchaser in conformity with a further decretal order, gave security to the master in the shape of a covenant, with a surety, to pay the purchase money within fifteen days. The money was not paid by either the principal or surety within the appointed time. Held, “That in occasion of this default a remedy at common law would be inadequate. That no proper damages could be given at common law upon a covenant taken by a court of equity to enforce its own decretal order; that whoever makes himself a party to proceedings of a court of equity, and undertakes to do a particular act under its decretal orders, may be compelled to perform what he has undertaken; that a court of equity may by attachment compel a purchaser at a sale by a master to complete his purchase by paying in the purchase money; and that a surety who has made himself a party to the proceedings as in the present case, is in the same predicament with the purchaser and may be proceeded against by attachment; and it will make no difference that the surety was not aware that in becoming so he subjected himself to the summary process of the court; nor that the plaintiff had the right in default to sell the lands; nor can the surety take any exception to the title.”
    In Landsdown vs. Elderton, 14 Vesey, page 512, a motion was made, that a person reported the best bidder before the master, may within a fortnight pay in his purchase money, or stand committed. The Lord Chancellor granted the order and he cited the case of Ander vs. Ray, where in 1791, asim-ilar order was made.
    Having disposed of the first in this case it remains now to say a few words on the second point. The counsel for the defendant contend, that though a court of equity might have jurisdiction of this case originally, yet we have lost that jurisdiction by getting a judgment at law upon the notes.— This objection has no force. The decree of the court of chancery at Franklin remains to be executed. The money on these notes is necessary to enable that court to execute the decree. They had jurisdiction over this matter for this purpose, and it is not as necessary now as before the judgments at law were obtained. They must receive the money before they can give the purchaser his title, and before the legatees of Geo. M. Deaderick can get the proceeds which are decreed them. If the court of chancery at Franklin ever had jurisdiction over this matter they still have it, for. the very thing remains to be done as much after the judgment at law, as it was before. M’Gregor has to get his title, and he or his securities have to pay the money. It is not for the interest of sureties to sustain the jurisdiction of a court of chancery in cases situated like the present. Supposing the securities had to pay this money by virtue of this decree. By making a representation of that fact in a petition there is no doubt they could have title to the land decreed to them, and thus they would get the land for which the notes were given. But if the Chancellor has lost all jurisdiction over the subject or over the securities — if they are no longer parties to the cause — M’Gregor might sell the land, or have it decreed to others before the sureties could interpose to prevent it.
    Is not the case in chancery at Murfreesboro’ a ease coram non judice? The Chancellor has ordered an injunction to stay the collection of two of these notes. That is the ground of his jurisdiction, and if he had the right to issue the injunction he has jurisdiction of the cause, and if he had no such right, then he has no jurisdiction. He has called one of the officers, to wit, the clerk of the court at Franklin before him for an act done in obedience to the decree of that court. He claims the right to make Mr. Litton shew his title to this land. He might as well have coupled Judge Cahal with him, and then we would have had the farce complete. He claims the right that the clerk shall go before him with his pa-persto Murfreesboro’ and shew his title to this land. Butas the papers are all filed in the court of chancery at Franklin, he cannot take them along with him. Well then he must have transcripts, which in this very case, the clerk informs us, would cost f 100. The Chancellor at Murfreesboro’consid-ers of the matter very maturely and decides that Litton, in other words the court of chancery at Franklin, cannot make a title to the land; that the decree under which he acted is void, and M’Gregor and his sureties are dismissed and told to go hence. By and by Judge Cahal comes to sit, and the-cause of D’s. legatees is called, and he enquires of his clerk what he has done with the decree in that case. He is told that the Chancellor at Murfreesboro’ has taken jurisdiction of it, and cancelled the whole proceedings. The Chancellor at Franklin reverses this decision, or directs the clerk to go on and execute the decree. The clerk attempts to do it, and Chancellor Ridley stops him, and between the cross fire of the two Chancellors, the clerk is liable for a contempt either way. If the Chancellors were to call each other before them, which th'e}r might do with the same propriety that they call the clerks, we would then have in principle a complete example of what took place in Kentucky between the old court and new court some years ago.
    The conclusion is,"that the Chancellor had no right to interfere with our decree — he had no right to call the clerk of the chancery court at Franklin before him. He had no right to require him at his own expense to make out a transcript of the record in the- case of Deaderick’s legatees, or take the originals by spa. duces tecum to Murfreesboro’, and shew his title to the land which he had sold in obedience.to the decree of the court of chancery at Franklin, when that decree remained unexecuted, and when the very money which he had enjoined was necessary to its execution.
    The court of chancery at Franklin has jurisdiction over the whole subject, and has the right to pronounce its decree directing M’Gregor and his sureties to pay. the money into that court.
   Green J.

delivered the opinion of the court.

In this case a decree was pronounced by .the Chancery Court at Franklin, against the defendants, which among other things, ordered the. lands of the late Jesse Wharton, the testator of Smith, to be sold by the Clerk and Master.

The land was sold in pursuance of the decree, and Alfred M’Gregor became the purchaser of one of the tracts and executed to B. Litton, the Clerk and Master, his three notes, due at one, two and three years, for f 19861 each. William Ledbetter and Henry Norman were sureties to these notes. Payment not having been made, B. Litton, Clerk and Master, brought actions at law on the notes, and recovered judgments.

M’Gregor filed a bill in the Chancery Court at Murfrees-bórough enjoining two of the judgments. Litton answered and the injunction was dissolved, and executions were awarded, on condition that Litton should give a bond to refund, should the court so order on the final decree. No such bond has been .given.

Pending this bill at Murf'reesborough, the-complainants in the original cause gave notice to M’Gregor and sureties, to make payment of the money due by his said purchase, or they would move the Chancery Court at Franklin, where said cause is still pending, to decree the payment thereof and award execution. Payment not having been made, the court at Franklin decreed the payment of the money yet due, against M’Gregor and his sureties, and awarded execution for the same, from which decree they appeal to this court.

Upon these facts the defendants insist — 1st. That the Chancery Court at Franklin had no power to decree against the defendants as parties to the cause, by reason of M’Gre-gor’s purchase of property sold by its order and the surety-ship of the other defendants for him. Upon this question we have no difficulty. The able argument of the complainant’s counsel is conclusive as to the power of the court, upon reason and upon authority. Every court must have an inherent power of enforcing its judgments and decrees; and surely to no tribunal can this power more properly belong than to the Chancery Court. It has under its control all the sales made by its order, until a final disposition is made of the cause. It can set aside the sale altogether, or open the biddings, or make any other order that may be necessary for the enforcement of the decree. The purchaser at a sale, made by order of the court, must come into court, to obtain a decree, vesting in him the title to the property purchased. He is a party to the cause, for the purpose of obtaining a decree to make his purchase effectual; and can it be said, he is not a party when the conditions to be performed by him are to be enforced? Surely not. The purchaser being a party, his sureties by their undertaking, become subject to all his liabilities. In England, the Chancery Court proceeding in personam, would order a purchaser to complete his purchase by a day specified, and on failure to do so, an order would be made to pay the money into court by another given day, or stand committed for a contempt. 2 Madd. Chy. 402-3. But our act of 1787, ch. 22, sec. 2, (C. and N. 215,) provides, that in all cases where decrees may be made for any sum of money, execution may issue as at law. Sec. 2, M’Chord’s Chy. R. 165; 1 Gill and Jh. 511; and the case of Woods vs Mann, 3 Sumner’s Rep., wheré the questions now before the court were directly decided.

2. But it is said, that suits at law and the chancery' suit at Murfreesboro’ are impediments to the proceeding that has been adopted in this case. We do not think these proceedings at all interfere with the jurisdiction of the court in this cause. The suits at law were improperly instituted. Those judgments ought to have been enjoined when the order in this cause was made, and the defendants should not be charged with the costs in those cases.

As to the suit in equity at Murfreesboro’, the court has no jurisdiction to interfere with another Chancery Court for the purpose of enjoining the execution of its decrees. If this were allowable, there would be endless collisions in the jurisdiction of the diiferent Chancery Courts. The Chancery Court of one district sends its fi. fa. in execution of its decree to another county, and the Chancellor of that district enjoins all proceedings upon the process; how could decrees be carried into effect? And such a case does not differ in principle from the one now before us. Here, the Clerk of the Chancery Court at Franklin, in execution of the decree, obtains judgments on these notes, and they are enjoined by bill in another county. It has no power to do so. Nor is this any hardship on the defendants. If they have any ground for equitable relief, the Chancery Court at Franklin, where the cause is pending, is the proper forum to which they should apply by petition. In the case of Smith vs. Brittain, 3d Iredell’s Eq. Rep. page 347; Ruffin, Ch. J. says, “A sale by the master in a case of this kind, is but a mode of sale by the parties themselves. It is not merely a sale by the law in invito of such interest as the party has, in which the rule is, caveat emptorf “hence if a purchaser pays his money on a master’s sale, and discovers a defect in the title at any time before a conveyance executed, he may recover it back.”—See also Sugd. Vend, 345; 3 Bos. and Pul. 162. In the same cas.e it is held, that the purchaser’s remedy is by petition in the cause in which the sale was ordered. If he file a bill and make the parties of the original cause defendants, he may have his decree, but he shall pay the costs.

This cause will be remanded to the Chancery Court at Franklin to proceed in execution of its decree, when it will order the judgments at law to be enjoined, and that the costs be paid out of the funds in the cause.  