Page:Federal Reporter, 1st Series, Volume 2.djvu/282

WILLS ». CHANDLER. 275 �is nevertlieless -final, if not appealed from, does not apply here. The order of confirmation cures all irregularities in the mode of making the sale, but can add nothing to the authority of the offieer to make it. If the sale was without authority the ratification of it by the court must be considered as having been given inadvertently. "If given deliberately, and on a f all examination of all the facts, still it must be regarded as an unauthorizedproceediiig." Shrivers Lessee v. Lynn, 2 How. 60. �Nor is the plaintiS or his grantor estopped by the subse- quent order of the state court overruling the motion to set aside the confirmation of the sale. No greater validity was given to the sale by the latter order than by the original confirmation. Besides, that motion was madefive years after the sale ;. and it is clear that the state court had, at that late day, no jurisdiction to entertain it. We must presume that it was overruled because it was made too late. It does not, however, foUow that it is too late for a court of equity to grant relief if the plaintiff is entitled to it. �2. The validity of the sh-eriff's sale under which defend- ants' claim is attacked first upon the ground that the judg- ment was satisfied by the plaintiff therein, and that, there- fore, the sale was void. The proof clearly shows that the attomey for the plaintiff executeJ to Kellogg a receipt in full for the judgment, interest and costs. This receipt may be explained by paroi proof, and on explanation it is shown that the costs due Chandler, though receipted for, were not in fact paid. It remains, however, clear from the evidence that Meredith and Kellogg both intended that the receipt snould satisfy the judgment and remove the encumbrance, notwith- standing the non-payment of Chandler's costs. Had they the power to accomplish this ? I think it clear, under the authorities, that in the absence of statutdry regulation only the plaintiff in a judgment, or his attorney or agent, has the power either to satisfy it, or direct its enforcement by execu- tion. In this case Chandler (the clerk) was not the plaintiff, nor was he a party to the judgment. There was, in fact, no judgment for any particular sum as costs. �Johnson v. Andersen, 4 Wend. 474, is in point. That was. ����