Cockey v. Cole

Alvey, J., delivered the opinion of this Court. There is but one exception in this case, and that raises the single question as to the admissibility of the record offered as evidence for the defendants in the Court below. While on the part of the appellants it is contended, that the record offered, containing proceedings of a Court of general and competent jurisdiction, should have been admitted as evidence by the Court below, it is contended, on the part of the appellee, that the proceedings were eoram non judiee, and that the sale shown to have been made by Horwitz to the defendant, Thomas T. Cockey, was absolutely void; and, being so, the record was wholly inadmissible for any purpose whatever. The proceedings in question were had in the Circuit Court for Baltimore county, as a Court of Equity, and purport to be under and in pursuance of the 64th Art., of the Code of Public General Laws, providing the mode of foreclosing mortgages, and the distribution of the proceeds of sale of the mortgaged premises.

It is urged against the admissibility of the proceedings offered that.no rightful jurisdiction did or could attach in the Circuit Court where they were had, because of the failure of the mortgagee to give ²⁸³ such bond as was required of 3iim by the 6th sec. of the Art., referred to, before he proceeded to make sale; and although a bond was given, it is insisted that it was not such as gratified the requirement of the statute, and authorized the making of the sale that was afterwards duly reported, and finally ratified by the Court. The question of the validity of the bond that was in fact given, we do not deem material to decide in this case. The non-conformity of its condition to the requirements of the law, may have formed good grounds for objection to the ratification of the sale, but we think it no sufficient ground for declaring, in this collateral way, the whole proceeding a nullity. The Court in which these proceedings took place was not one of special or limited jurisdiction, but of general common law and chancery powers.

Foreclosure of mortgages, and the execution of trusts, were subject matter peculiarly within its jurisdictional power; and the statute simply provided a summary mode for the exercise of an ordinary jurisdiction. Instead of a regular proceeding for foreclosure, the agreement of parties, as expressed in the power contained in the deed of mortgage, is substituted for a decree of sale, and upon report to, and final ratification by the Court, the sale has all the judicial sanction that it could have on more formal proceedings. By the very terms of the 8th sec. of the Article of the Code, already referred to, the general Chancery jurisdiction of the Court, is evoked and brought into active exercise; for it is therein provided that “ all such sales shall be reported under oath to the Court having Chancery jurisdiction where the sale is made, and there shall be the same proceedings on such report as if the same were made by a trustee wilder a decree of said Court.” This, therefore, is not the ease of special and extraordinary powers given by statute to a Court in relation to a subject matter, of which such Court has no jurisdiction independent of the statute, and which derives its authority to act entirely from the statute giving the power, and prescribing the mode of proceeding. In such case, to render valid ²⁸⁴ the exercise of the power given, all the requisites of the statute must be strictly complied with.

But the provisions of the statute upon which the proceedings in question were founded, profess to give no new jurisdiction, but only to prescribe a summary mode for the exercise of jurisdiction over the subject matter, of which the Court had full and ample cognizance, independent of the statute provision. In the proceeding under consideration, it may be that there were errors and irregularities for which the sale would have been set aside, if exception had been taken to its ratification in the direct proceeding, or that the final order of ratification would have been vacated, if an appeal had been taken therefrom ; but it does not by any means follow, that objection can be sustained, when made for such causes, in a collateral proceeding. For “ where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its decision be correct or not, its judgment, until reversed, is regarded as binding in every other Court. But if it .act without authority, its judgments and orders are regarded as nullities.

They are not voidable, but simply void; and form no bar to a recovery sought in opposition to them even prior to a reversal.” Elliott, et al. vs. Piersol, et al., 1 Pet, 340. It was earnestly contended by the appellee’s counsel, that the terms of the statute, “before any person so authorized shall make any