
    Lewisburg.
    Evans & wife v. Spurgin.
    1849. July Term.
    
    (Absent Cabell, P. and Brooke, J.)
    1. A decree was made in 1807, directing certain commissioners to sell a tract of land in order to satisfy a debt which was a lien thereon. The commissioners, in the same year, sold the land, and conveyed it to the purchaser; and they collected the purchase money and paid it to the plaintiff, in part discharge of his debt: hut they did not report their proceeding to the Court until 1835; and in the mean time the original owner of the land, or those claiming under him, remained in possession. In 1836, when the defendant had been dead many years, though no suggestion of his death had been made upon the record, the Court confirmed the report of the commissioners. And then the devisee of the purchaser brought a writ of right to recover the land, against the parties in possession holding under the original owner. Held :
    1. That although the decree of 1807, directing the commissioners to sell the land, did not authorize them to execute a deed to the purchaser, yet as they did execute the deed, and the Court by its final decree of 1836 ratified and confirmed it, this order of confirmation gave full effect and validity to said deed, and related back to the time of its date, so as to invest the purchaser with the legal title of the original owner to the land.
    2. The death of the defendant not having been suggested on the record, the validity of the decree of 1836 cannot be impeached by evidence of his death before the decree, given in another collateral action. The error in proceeding to decree after the death of the defendant, should be shewn in some proceeding by the proper parties to set aside said decree for that cause.
    3. The possession of the original owner, and of those claiming under him, from the time of the sale by the commissioners until the final decree, was not an adverse possession to the purchaser and those claiming under him.
    2. The owner of land having conveyed it by deed duly executed and delivered, a second deed from him to the same grantee will be wholly inoperative.
    This was a writ of right tried in the Circuit court of Preston county, in which John Evans and wife were demandants and Jesse Spurgin was tenant. On the trial the demandant demurred to the evidence, and the tenant joined in the demurrer; and it was agreed by the parties that the jury should be discharged without rendering a verdict, and that the Court should render a judgment upon the demurrer to evidence.
    Both parties claimed under the title of John Staley. The tenant, offered in evidence a deed bearing date the 8th day of July 1805, from Staley and wife to Daniel Lantz., for five hundred and thirty-nine acres of land; the same in controversy in this suit. He also introduced another deed bearing date the 15th of August 1809, from Staley and wife to Daniel Lantz, for twelve hundred and twenty-four acres of land: This tract included the land conveyed by the first deed. Also a deed from George W. Devecman and Sophia his wife, and Margaret Lantz, the daughter, and widow of Daniel Lantz, to Jesse Spurgin. dated the 15th of July 1839, conveying to Spurgin seven hundred and ten acres of land, including the land in controversy. And he proved that Lantz had been in possession of the land by his tenants from the year 1805 until his death, which occurred about the year 1825; and that his heirs or some of them were in possession until the tenant’s- purchase in 1839; and that he had been in possession since that time.
    
      The demandants by their evidence traced the title of the land from the patents to Staley, and from Staley to Daniel Lantz. They then offered in evidence the record of a suit in chancery in which Staley was plaintiff and Daniel Lantz was defendant. This was a suit commenced in 1805, in the late Chancery court at Staunton, by Staley against Lantz as an absent defendant, to subject the land conveyed to Lantz by the deed of July 8th, 1805, for the payment of the purchase money. The bill charged that the plaintiff had in 1804 sold the land to Lantz for 2000 dollars, to be paid by the conveyance of a tract of four hundred acres of land which Lantz owned in the county of Monongalia, at 800 dollars; by an account between them of 200 dollars, and by 1000 dollars in cash on the 1st of March 1805. That Lantz had not conveyed the land: and had only paid in cash 240 dollars 29 cents. The prayer of the bill was that Lantz might be compelled to convey to the plaintiff the tract of four hundred acres, and that the land sold to him by the plaintiff might be sold for the payment of the purchase money yet due.
    The cause came on to be heard on the 20th of July 1807, when the Court decreed that Lantz should convey to the plaintiff the four hundred acres of land; and that he should pay to the plaintiff the sum of 778 dollars 21 cents, with interest at the rate of six per cent, per annum, from the 13th of April 1805, until paid, and the costs of the suit. And if he should fail to pay the said sum of money and costs on or before the first day of the next November, it was further decreed that the land conveyed by the plaintiff to him by the deed of July the 8th, 1805, should be sold “for ready money to the highest bidder, by public auction, under the superintendence of Thomas Wilson, D. Evans, and Henry Dearing, any two of whom shall sell the land with the appurtenances in manner aforesaid, having first published the time and place in some newspaper published in this State nearest the premises, for six weeks successively; and out of the proceeds thereof satisfy and pay the plaintiff the sum of 778 dollars 21 cents, with interest from the 13th of April 1805 and the costs aforesaid, or so much thereof as shall remain ’ unpaid, as also the costs and charges of such sale, and the residue thereof to the defendant.”
    The cause then slept until June 1816, when a rule was made upon the commissioners for the sale of the land, to shew why they failed to make a sale and make report of their proceedings to the Court. Nothing seems to have been done under this rule ; and in November 1817 an order was made substituting the marshal of the Chancery court at Clarksburg in the place of the commissioners; and he was directed to carry the decree of the 20th of July 1807 into effect, if the commissioners had not already acted under it. The cause then again slept until June 1833, when on the motion of the plaintiff it was transferred to the Circuit court of Monongalia county.
    In April 1834, the plaintiff being dead, the suit was revived in the name of his administrator, and another order was made on the commissioners to report their proceedings to the next term of the Court, or shew cause why they had not made such a report. In obedience to this order and to another made in September 1835, Dudley Evans, the only surviving commissioner, reported that in pursuance of the decree of July 1807, Thomas Wilson and himself did on the 2d day of November 1807, sell the land mentioned in the decree, to Nimrod Evans for 800 dollars, which sum the purchaser then paid to them; and that they then made and delivered to the said Nimrod Evans a deed for the land, and at the same time paid over to Staley 757 dollars ; that being the amount of the sale of said land after deducting commissions and expenses of sale. And he presented with his report a copy of the deed which had been admitted to record in the County court of Monongalia, in December 1807, and also the receipt of Staley endorsed thereon for 757 dollars.
    The cause came on finally to be heard on the 21st of April 1836, when the Court decreed that the sale made by the commissioners and the report be confirmed. At this time Daniel Lantz had been dead twenty years, and it had never been revived against his heirs, nor had his death been suggested on the record.
    The demandants also introduced the will of Nimrod Evans, bearing date the 24th of November 1827, by which, after some specific devises and bequests, which do not embrace the land in question, he gives all his estate, real and personal, not previously disposed of, to the female plaintiff and her heirs.
    Upon the demurrer to evidence, the Circuit court rendered a judgment in favour of the tenant: and thereupon the demandants applied to this Court for a supersedeas, which was granted.
    
      Nathaniel Harrison, for the appellants,
    insisted :
    1st. That the power of a commissioner, under the authority of a decree to sell, is not analogous to the ordinary case of a mere naked power to sell; but is more in the nature of a trust than a power. And for the doctrine and distinctions on this point, he referred to 1 Story’s Equ. Jur. p. 181, § 169, 170; 2 Id. p. 321, § 1061; Brown v. Higgs, 8 Ves. R. 561.
    That as to the deed of the 2d of November 1807, although not directed by the decree under which the sale was made, it was ratified and adopted by the Court by the decree of April 1836. It was certainly competent for the Court to ratify any conveyance made by its own commissioner; and having done so, whether erroneously or not, such ratification is res judicata, which cannot be collaterally questioned in this suit. And for the doctrine on this point, he referred to Simpson v. 
      Hart, 1 John. Ch. R. 91; Gelston v. Hoyt, Id. 543; Thompsons v. Meek, 7 Leigh 436; Fisher v. Bassett, 9 Leigh 119; Burnley’s adm’r v. Duke, 2 Rob. R. 102.
    That even if the deed of 1807 was void ab initio, it was rendered valid and effective by the affirmance thereof by the decree of April 1836 ; upon the principle that the subsequent ratification thereof by the Court was equivalent to a new delivery. And for this he referred to Doe v. Howland, 8 Cow. R. 285: Goodright v. Straphan, 1 Cowp. R. 201; Jackson v. Hill, 5 Wend. R. 532; 1 Shepperd’s Touch. 60; 4 Cruise’s Dig. ch. 2, § 31, p. 19; Anderson v. Foulke, 2 Har. & Gill 346.
    That whether the deed was void or voidable, the effect of the decree of April 1836 in ratifying and perfecting it would be the same, except that if it was void at first the doctrine of relation would not apply, and the deed must be sustained by the decree, not by virtue of any principle of relation or retrospective efficacy in the deed, but upon the ground that the subsequent ratification by the Court was equivalent to a new delivery; and that the deed took effect from the date of the decree instead of its first delivery. Doe v. Howland, 8 Cow. R. 285.
    That if the deed is susceptible of relation, it will be held to have relation or not to the date of its first delivery, ut res valeat. For if the relation would prejudice or avoid the deed in any way, then it will be held not to relate back; but will take effect as from the date of the last delivery. 1 Shepperd’s Touch, ch. 4, p. 73; Cruise’s Dig. ch. 9, § 44, p. 94. And when the sale of a commissioner is confirmed, the confirmation relates back to the sale; unless the purchaser would be prejudiced by such relation. Taylor v. Cooper, 10 Leigh 317.
    That the omission in the decree of 1807 to direct the commissioners to report their proceedings to the Court did not give finality to that decree, or supersede the necessity of a subsequent confirmation of the report by the decree of 1836. Cabell, P. in Cocke v. Gilpin, 1 Rob. R. 50-52.
    2d. That the fact that Daniel Lantz was dead when the decree of 1836 was made, not appearing in the proceedings of the chancery suit, and no appeal having been taken from that decree, it is incompetent to the tenant to object in this case that Lantz was in fact then dead, and that the suit was not revived against his heirs. The proper proceeding for the heirs was to suggest the death of Lantz, and ask to be made parties to the suit; or if they did not know the fact until subsequent to the decree of 1836, then to proceed either by bill of review, or by bill in the nature of a bill of review, to set aside the decree. Having failed to do this, they in this case at least, as privies in blood under Lantz, and those claiming under them, are as much bound by the decree of 1836, as Lantz, if living, would be bound by it.
    That under the act 1 Rev. Code, ch. 128, § 38, p. 497, on the subject of abatement of suits, the death of the defendant in a chancery suit does not abate the suit de facto. It is merely ground for a scire facias, of which the heirs of Lantz could have availed themselves if they chose, by bringing it to the notice of the Court ; but which the Court could not notice ex officio, unless the fact were brought before it.
    That even in England, where the death of either plaintiff or defendant will abate the suit, and where a bill of revivor must be filed, if a plaintiff or defendant dies, and the suit is not revived, but a judgment or decree is rendered, it is not treated as a nullity, but the judgment stands good until it is reversed, although the action had in fact abated. Boddy v. Kent, 1 Meriv. R. 361.
    3d. That as to the second deed of August 1809, from Staley to Lantz, which embraces the land in controversy, that deed as to the land in controversy, passed nothing. 1st. Because the title thereto had been previously conveyed from Staley to Lantz by the deed of July 1805, and there was nothing to convey in 1809. 1 Cruise’s Dig. Title 1, § 45, p. 45. 2d. Because at that time the title was not only already in Lantz, but Nimrod Evans had bought the land under a decree of the Court, had paid the purchase money to the commissioners, and the commissioners had paid it to the plaintiff. And during the pendency of the suit it was not competent for the parties to make any deed or do any act to the prejudice of Evans after his purchase. On the contrary, Evans, after his purchase had been made, if the sale was regular, had as much right to have a title to the land as Staley had to have the proceeds. Brown v. Frost, 10 Paige’s R. 243; Jackson v. Andrews, 7 Wend. R. 152. Besides, whether Lantz derived his title from the deed of 1809 or 1805, he and those claiming under him were bound by the decree of 1836.
    4th. That no adversary possession ever existed or could exist in this case until the judicial sale of the commissioners and their deed to Nimrod Evans of the 2d of November 1807, had been confirmed by the decree of 1836. Until then the title of the demandants was not perfected. It was in Lantz or his heirs; and they could not hold adversely to themselves or to the ultimate disposition of the suit. Until the decree of 1836, the demandants could not have sued; because they were bound to shew a seizin in themselves, or a derivative seizin from their ancestor, to maintain the action. But the purchase from the commissioners was not complete, and could not have been enforced by either party until the sale was ratified. 1 Sugd. on Vend. ch. 2, § 17, p. 104; Taylor v. Cooper, 10 Leigh 317; Cocke's adm'r v. Gilpin, 1 Rob. R. 20. The first manifestation of any adversary possession was the deed of 1839 to Spurgin the tenant. Though in fact the deed of 1807 could not he affected by any adversary possession between the day of sale in 1807 and the date of the decree in 1836, even if the Court should be of opinion, on the authority of Taylor v. Cooper, supra, that the deed when confirmed related back to the time of the sale. Jackson v. Bull, 1 John. Cas. 81.
    
      Guy R. C. Allen, for the appellee,
    submitted a written argument.
    No deed has ever been made by direction of the Court, and it would have been error in the Court to have directed it. The Court entered an erroneous decree in that it directed a sale for ready money, and directed payment of the money to the creditor; and to have directed the execution of a deed to the purchaser in the decree for sale, would have been adding another error : and as this is not directed, it will not be presumed that the Court directed what would have been error for it to have done. See Brien v. Pitman, 12 Leigh 379. But it is argued that what it would have been error in the Court to have decreed in 1807, was done by the commissioners as the representatives of the Court, without any decree to authorize it, and that the acts of the commissioners were approved by the decree of 1836. The decree of 1836 approved the sale made by the commissioners, and confirmed it and the report; but no one to this day, has ever been authorized by the Court to execute a deed; and it is only to be supposed that the Court in 1836 confirmed what the commissioners were directed to do by the decree of 1807. The execution of a deed is a separate and distinct act, which follows a confirmation of sale, but never precedes it. The confirmation may be dispensed with where the commissioners in the decree are not required to report; and time may make such omission good; but time can never give or imply authority to convey. Until such authority is given, one may as well convey as three, and the sheriff as Well as the commissioners. The deed when made in 1807 was therefore a nullity; the parties so regarded it. Staley and Lantz made their own contracts, as will be inferred from the evidence; Lantz and his heirs and those claiming under them remained in possession. N. Evans never was in possession, but seems to have regarded the deed from some cause, as conferring no right upon him to the land; he never enters it upon the commissioners’ books, or pays the taxes. And can it be said that that which was a nullity, and so treated by all concerned, shall be quickened into life after the lapse of 29 years, .and made what it never was before, a conveyance of .the -legal title ? From what time does it speak, from its date or from the decree ? When was it a deed, and when was it not a deed. But the counsel says it was like a re-acknowledgment of a deed; executed in 1807 but re-acknowledged in 1836. Thus a deed is re-acknowledged in 1836, whereby the lands of a party long before dead, on which he had probably lived and died, are conveyed away by a deed made before his death ; and to a party who had long before made his will and was in his grave. Suppose, however, it passed the legal title, and speaks from its date, time would bar the grantee, (as his adversary claims under a deed from Staley, which is colour of title at least,) and if it speaks from the date of the decree in 1836 only, then according to the case in 10 Leigh, cited by appellants’ counsel, would not Evans be considered as complete owner from the date of the sale., and still be barred ? See Taylor v. Cooper, 10 Leigh 317.
    But it was a valid deed at its date, or not at all. If valid the demandants are barred of their right; if invalid they never had any right. It cannot be said there was a lis pendens. The cormnissioners were not even required to report to Court their sale when they should make it. The decree was final, nothing remaining to be done by the Court; and the decree as perfect as it has ever become by any subsequent proceeding; and in all probability the cause had been left off of the docket in Staunton. Indeed the record shews it had been, for there is no entry of continuance or other order from the date of the decree in 1807, till June 1816, when the rule against the commissioners was made. In November 1817, the marshal was substituted on motion of the plaintiffs, and the cause no more heard of till 1833; and all these orders subsequent to the decree of 1807 are doubtless without notice to Lantz or his representatives. See Cocke v. Gilpin, 1 Rob. R. 20.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that although the interlocutory decree of the Staunton Chancery District court, pronounced on the 20th day of July 1807, in the suit of John Staley against Daniel Lantz, did not direct the commissioners thereby appointed, to make sale of the land in controversy, to convey the same to the purchaser ; yet as commissioners appointed by the Chancery court to make sale of property, act subject to the supervision and control of the Court, their acts, when sanctioned and approved by the Court, become the acts of the Court: That the Court having jurisdiction over the subject, has the power either to ratify and confirm a previous deed made by the commissioners, or to direct the execution of a new one : and the correctness of any order so made by the Court, where it has jurisdiction over the subject, can only be enquired into by proper proceedings instituted to set aside or reverse the order and decree; but the same cannot be impeached in a collateral proceeding. The Court is therefore of opinion, that the deed executed by Dudley Evans and Thomas Wilson, two of the commissioners appointed by said decree, to make sale of the said land, bearing date the 2d day of November 1807, having been approved and confirmed on the 21st April 1836, by a final decree pronounced in said cause by the Circuit Superior court of law and chancery of Monongalia county, to which Court said cause had been transferred, such order confirmation gave full effect and validity to said deed, and related back to the time of its date, so as to invest Nimrod Evans, the grantee in said deed, with the legal title of said Daniel Lantz to said land. And the Court is further of opinion, that as there was no suggestion of the death of Daniel Lantz in the record of said suit in chancery, the validity of the decree cannot be impeached by evidence given in a collateral proceeding, tending to shew his death at a period anterior to the time of pronouncing the final decree; the error in proceeding to pronounce such decree after the death of the defendant, should have been shewn in some proceeding instituted by the proper parties to impeach and set aside said decree for that cause.

The Court is further of opinion, that the continued possession of the said Daniel Lantz and his heirs from the time of the sale by the commissioners, until the final decree of the Court, was not an adverse possession to the demandants or the said Nimrod Evans, under whom they claim, because the decree of the Court confirming said deed was essential to the validity thereof, and because until such final order, the said Daniel Lantz and those claiming under him, held subject to the control of the Court, under and in virtue of said title, and not adverse thereto.

And the Court is further of opinion, that as John Staley, by his deed of the 8th of July 1805, had conveyed the land in controversy to said Daniel Lantz, the subsequent deed of said Staley to the said Lantz, dated the 15th August 1809, conveying a large tract of land, embracing within the boundaries thereof the land in controversy, so far as it respected the land in controversy, was inoperative; the title of said Staley thereto having fully passed by the previous deed. It therefore seems to the Court here, that the matters shewn in evidence to the jury, are sufficient in law to maintain the issue on the part of the demandants, and that the judgment of the Circuit Superior court is erroneous. It is therefore reversed with costs; and this Court proceeding, &c., it is considered that the demandant recover his seizin of the tract of 539 acres, as described in the count, being the same land described in the deed of John Staley to Daniel Lantz, dated the 8th of July 1805, and in the deed of Dudley Evans and Thomas Wilson, commissioners, to Nimrod Evans, dated the 2d November 1807, and the costs.  