
    *Jones v. Tatum.
    
    April Term, 1870, Richmond.
    Absent, Christian, J.
    
    Sale of Land—Proper Parties.—T. conveyed to H. B. & J. B. ninety acres of land in trust for his wife for life, and at her death to their children, with a power of appointment by will to the wife, which she did not make. After the death of T. and his wife, four of their children being of age, file their bill against the other two who were infants of the age of seventeen and nineteen years, asking for a sale of the land. There was a decree directing the land to be sold, and it was sold, partly on a credit, and the sale was confirmed. The purchaser having failed to make the last payment, a rule was made on him to show cause why the land should not be sold to pay the balance of the purchase money. He appeared and filed an affidavit objecting to the title, that the trustees H. B. & J. B. had not been parties to the suit, and that there was but 89 acres of land. J. B. describing himself as surviving trustee, executed a release deed, which was filed iu the suit. A sale was decreed, and the purchaser appealed. Held :
    i. Statute of Uses—Trust Ended—Quaere—Is Trust Executed—Quaere. Whether under the Virginia statute of uses, tlie trust having ended, the legal title was in the trustees. But if it was, and they should have "been parties, the sale having been made and confirmed, and the purchaser in quiet possession, the deed of release of the surviving trustee cured the defect.
    2. Sale in Gross—No Abatement.—Though the tract was described as containing ninety acres, it was a sale in gross and not by the acre, and the purchaser is not entitled to an abatement"from the purchase money.
    3. Same—Same.—If the facts stated by the purchaser would entitle him to an abatement from the purchase money, the facts not being proved he is not entitled to it.
    4. Judicial Sales—Payment to Commissioner.—The decree having directed the commissioner to give security, and to pay the money coming to the infants to their guardian. *the purchaser paying to the commissioner in pursuance of the decree, is exonerated from liability for its proper disposition, and cannot obi ect to the decree on that ground.
    5. Proof as to Surviving Trustee—Objection in Court of Appeals.—No objection having been made in the court below, that it was not shown that J. B. was the surviving trustee, that question cannot be made in this court.
    6. Appeal from Decree —Costs. — The purchaser having resisted the decree for a resale, and taken an appeal from a former decree in the cause, was properly subjected to pay the costs of the proceedings under the rule.
    This is an appeal by a purchaser at a judicial sale from a decree requiring- him to pay the balance of the purchase money. The facts of the case, so far as it is material to state them, are as follows:
    On the 26th day of April 1866, four of the six Tatums being adults, filed their bill against the remaining two who were infants, in the Circuit court of the county of Henrico, in which they stated, that on the 31st day of May 1843, Theophilus Tatum, of the said county, executed a deed which was duly recorded, conveying to Henry Branch and James M. Boyd, among other things, a tract of land in the said county, containing ninety acres, adjoining the Tree Hill tract and the land of William B. Randolph and others, in trust for the use of his wife, Anna D. Tatum, during her life, and at her death to her children then living, and the descendants of any who might be dead, with a power of appointment by will to the said Anna D. Tatum; who, by a paper executed by her in the form of a will, devised the property to the said Theophilus Tatum for life, but made no further appointment. That the said Anna D. Tatum died in October 1865, survived by her husband, the said Theophilus Tatum, and six children, who were the plaintiffs and defendants in the suit, and her only heirs at law, one of the defendants being nineteen years old and the other seventeen years old. The said Theophilus died on the 13th day of November 1865, about a month after the death of his said wife. *That the will of said Anna D. Tatum had never been admitted to record, for the reason, that both the witnesses were dead, and their handwriting could not be proved. But it was a matter of no importance, as the title to the said land was then in the same persons, either with or without the will. That upon the death of the said Anna JD. Tatum and Theophilus Tatum, the trust created by the said deed was fully executed, and ceased, and the title to the said land vested absolutely in the said surviving children. The said deed, and the said will, marked A and B, were exhibited with the bill. That the said land, consisting of ■ninety acres, and being divisible among six persons, could not be divided in kind without manifest injury to the interest of all parties; so that a sale was absolutely necessary for an equal and judicious partition of the same. And that such sale could not be made without the aid of a court of equity, because two of the distributees are minors, and incapable in law of giving their consent, though capable in fact of deciding prudently with respect to their interests, and desiring the said sale to be made. The plaintiffs therefore prayed that the said land might be sold, and the proceeds of sale divided according to the rights of the parties respectively; and for general relief. •
    In the said deed exhibited with the bill, the said land is described as “containing ninety acres, be the same more or less,’- and its situation and boundaries are very minutely described.
    On the same day on which the bill was filed, a guardian ad litem was assigned to the infant defendants, and filed their answer, and the said infants themselves, by leave of the court, filed an answer in proper person, in which they said they believed the allegations of the bill to be true, and expressed a desire that the said land might be sold for a division. And, thereupon, it was decreed that a commissioner of the court should enquire, ^ascertain and report:—1st, whether either of the parties entitled to distribution in the land would accept the same, and pay therefor to the other parties such sums as their interest might entitle them to; 2ndly, whether partition of the said land could be conveniently made among the parties entitled ; and 3rdly, whether the interests of the persons entitled to the said land would be promoted by a sale thereof.
    A day or two after that decree was made, commissioner J. H. Sands proceeded to execute the same by taking the depositions of two witnesses upon interrogatories agreed to by the guardian ad litem, and made a report:—1st, that partition could not be conveniently made of the real estate in the bill mentioned; 2nd, that no party was able or willing to take the entire subject, and pay therefor to the other parties such sums of money as their interest therein might entitle them to; and 3rd, that the interests of those who were entitled to the subject or its proceeds, would be promoted by a sale of the entire subject. The depositions of the witnesses, which were returned with the report, fully sustain it.
    On the 30th day of April 1866, the cause came on by consent to be heard on the papers formerly.read, and the report of the said commissioner, to which there was no exception, and the court decreed that William' H. Tatum, who was appointed commissioner for that purpose, should proceed, after giving at least ten days’ notice of the time, place and terms of sale, by advertisement in one or more newspapers of the city of Richmond, to sell, at public auction, to the highest bidder, the land in the bill mentioned, for cash as to one-fourth of the purchase money, and upon a credit of six, twelve and eighteen months, with interest from the day of sale, as to the balance, taking from the purchaser negotiable notes, well endorsed, for the credit payments, and retaining the title until a deed should be ordered by the court to be made. The said commissioner was ^directed to report his proceedings and return the said notes to the court. But he was not to have authority to act under the said decree until he should have entered into bond with good security before the clerk of the court, in a penalty of six thousand dollars, conditioned according to law.
    On the 26th day of October 1866, a report of the said commissioner of sale was returned and filed, from which it appears that in pursuance of the said decree of the 30th of April 1866, he did, after duly advertising the said land, sell the same (reserving a grave yard) at public auction, on the premises, on the 28th day of May 1866, when the appellant, William Jones, became the purchaser for the sum of $4,750. The purchaser desiring it, the commissioner received from him $2,000 in cash, leaving due $2,750. The purchaser executed his notes at 6, 12 and 18 months for the deferred payments. The first note for $386 25 (interest added), being the residue of the first two payments, after deducting the cash ($2,000) paid; the second at 12 months, for $1,258 75; and the third at 18 months, for $1,294 38. The commissioner further reported, that after deducting the cost of the suit up to that time, and the charges of sale, from the cash payment, there remained in his hands for distribution the sum of $1,838 15, of which each party was entitled to one-sixth; and that he had not returned the notes, but retained them, to deposit in bank for collection. Annexed to the report was a statement of an account of the transaction.
    On the 5th day- of November 1866, the cause again came on to be heard by consent, upon the papers formerly read, and the said report of commissioner Tatum, to which there was no exception; upon consideration whereof, the court confirmed the said report, and directed the said commissioner to pay over the fund in his hands to the parties entitled thereto; that is, $300 to each of the six distributees, paying the portion of each of *the infant defendants to his legally qualified guardian, and retaining in his hands the balance of thirty-eight dollars and fifteen cents to meet future costs of the suit, and to be accounted for thereafter in a decree for further distribution. And the commissioner was further directed to deposit the notes of the purchaser for the deferred payments in some bank of the city of Richmond, when necessary, in order to their collection, and report his further action to the court.
    No other proceeding was taken in the case until the 28th day of April 1868, when another report of commissioner Tatum, dated on the 18th of that month, was returned and filed. The said commissioner stated therein, that since his last report in the case, the purchaser, Jones, had paid in full, the bond of $386 25, and had paid $1,068 75 in part of the bond for $1,258 75 falling due on the 28th of May 1867, and had paid nothing more. That there then remained unpaid a balance of $190 on the bond for $1,258 75, and the whole of the bond for $1,294 38, due 28th November 1867. That he, the commissioner, had applied repeatedly to the said Jones to pay the balance due, but hitherto without avail. That the said Jones had several times stated that the title to the land sold him was defective, and he was not bound to pay. And that he, the commissioner, believed the title to be unquestionable, and heynvoked the exercise of the power of the court to compel payment.
    On the same day on which that report was filed, to wit: The 28th day of April 1868, the cause came on again to be heard by consent, on the papers formerly read and the said report; whereupon, on the motion of the plaintiffs, it was ordered, that unless the said purchaser, Jones, should show cause to the contrary on the 1st day of Hay 1868, having been first served with a copy of the said order, the said commissioner should proceed, at the risk and cost of the said Jones, to resell *the said land to the highest bidder at public auction, for cash as to so much as' will be sufficient to pay the costs and charges of the said sale and the costs of the proceeding under the said order, and to pay in full the balance, principal and interest, due upon the bonds executed by the said Jones to the said commissioner for the purchase money of the said land under the sale theretofore made to said Jones; and for the balance, upon such terms as the said Jones might prescribe; or, upon his failure to prescribe, upon six and twelve months’ credit, for negotiable notes, with interest from the day of sale, well endorsed, and retaining the title to secure their payment. The commissioner was directed to give at least sixty days’ notice of the time, place and terms of said sale in some newspaper published in Richmond. But if the said Jones, at any time before the expiration of the said sixty days, should pay to the said commissioner all costs and charges which might have accrued or been incurred by reason of said order, and should also pay in full the balance, principal and interest, which should be due upon his said bonds; then the said commissioner was directed not to make such sale, but to execute and deliver to the said Jones, a deed with special warranty for the said land. And the commissioner was directed to report his proceedings to the court.
    A copy of this order was served on the said Jones on the 30th of April 1868, and evidence of such service was returned and filed writh the papers in the cause.
    On the 1st day of May 1868, an affidavit of the said Jones was received and filed. In this affidavit the affiant, after setting out the facts in regard to the sale, the part payment of the purchase money, and the balance due thereon, stated, that before the last payment became due he negotiated a loan of $2,250, which one Sanford of New York agreed to advance on said 'li'land, to be secured by deed of trust thereon, upon being furnished with an abstract of good title thereto; that as he depended on said land as a means to pay said balance, he at once employed J. H. Sands as his attornej' to examine said title, wrho, upon doing so, reported the same defective, for that the legal title was outstanding in Branch and Boyd (the trustees in the deed of trust of the 31st day of May 1843, aforesaid), and that they were not parties to the suit under a decree in which said land was sold, and also that said land, sold as containing ninety acres, only contained eighty-nine acres, as appeared from the deed and commissioner’s books of the county of Henrico; that the tax bills also show only eighty-nine acres; that he is himself a practical surveyor, and upon measuring said land finds that it contains only 88 37-100 acres; that the foregoing are the reasons why said balance has not been paid; that he purchased said land for a nursery and has expended on it and the growth of plants and trees, over $3,000; that the value of said plants and trees alone will amount to five or six thousand dollars at .the fall of the leaf, and to remove the same before the fall planting, would result in utter loss to him of the whole; that it was by no fault of his, but through the fault of irregularities in the proceedings in said partition suit, that said last payment was not made; that the parties must take time to cure such defects by making the proper parties to said suit, so as to perfect the title, and thus enable him to borrow the money on the land; that besides, no one but himself is affected by the delay, because one of the six heirs is a minor and will not be of age for many years, whose share amounts to more than half of the balance of said purchase money now unpaid, and could not be used by the guardian, or be better secured or invested; that there may be liabilities outstanding against the said trustees, who hold the legal title ; that iffia sale *were made with these defects of title, it would be ruinous to him, the relief from which he now seeks at the hands of the court; and that he asks that said title be perfected and the deficiency in the land be allowed him before he is decreed to pay the said balance.
    On the 6th day of May 1868, there was filed in the suit a deed, bearing date the 20th day of April 1868, executed by Robert H. Branch, surviving trustee under the deed of trust from Theophilus Tatum, of the 31st day of May 1843 aforesaid; and also by the said William H. Tatum, commissioner as aforesaid, whereby the said Branch, with the assent of the said commissioner, granted, released, and confirmed to the said Jones, his heirs and assigns, the tract of land aforesaid, freely and absolutely, discharged from the said trust, and all the estate, right, title and interest of him the said Branch, trustee as aforesaid, in or to the same. This deed was duly certified for record as to both of the parties who executed it. And on the same 6th day of May 1868, the cause came on again' for decision upon the papers formerly read, and upon the rule entered in the cause on the 28th day of April 1868, returned executed, the answer of William Jones thereto filed (to wit, his affidavit aforesaid), and the deed of release aforesaid. Upon consideration whereof, the court being of opinion that the said Jones had not shown any sufficient cause why he should not be required to perform his contract for the purchase of the said land, made the said rule absolute, and decreed that the said commissioner should proceed to execute the decree entered in the cause on the 28th day of April preceding as aforesaid, with this addition thereto, that if the said Jones should, before the expiration of the sixty days as provided for in said decree, make the payments therein specified, then the said commissioner, along with the deed to be executed by him to the said Jones, should also deliver to the said Jones the deed of ^release aforesaid, which he was authorized to withdraw from the papers of the cause for that purpose.
    If rom this decree, or rather from the three decrees of November 5th, 1865, and April 28th, and May 6th, 1868, the said Jones prayed for an appeal to the District court held at Williamsburg, which was accordingly allowed. The District court affirmed the decrees of the Circuit court, and from the decree of the District court, the said Jones prayed for and obtained an appeal to this court.
    Steger, Williams and Sands, for the appellant :
    1. Confessedly the title was not good when the sale was made.
    (a.) The trustees were not parties to the suit. The trusts were of a special character, and required the presence of the trustees to see the fair administration of the subject. Infants’ property being sold, every fiduciary interested in the property should have been represented and befdte the court.
    (b.) The attempt to' supply the title by the release of one o± the trustees will not suffice. The court will not compel a purchaser to take a doubtful title.- Though the court’s opinion should be in favor of the title, the purchaser ought not to be compelled to take it if there were reasonable doubts of its sufficiency. Pyrke v. Waddingham, 17 Eng. L. & E. R. 534; Collard v. Sampson, 21 Id. 352. 1 Sugd. Vend. 455.
    2. The appellant has sustained serious damage by the defect of title. After having paid the cash instalment of the purchase money and others, amounting to $2,000, and expended upwards of $3,000 in improvements, and when in treaty to settle the whole purchase money by effecting a loan upon the faith of the property itself, he is arrested by a defect of title discovered by the counsel who examined the title. This defect of title, confessed by the parties, has resulted thus in serious loss *to the appellant. To force the title upon him now, would be to make the parties to the suit profit by their own wrong. The appellant asks that the defects may be cured and himself protected in the premises.
    3. The doubt about the title necessitates the appeal. The costs should be borne by the appellees—-not by the appellant.
    4. Clearly the Circuit court should have directed the purchase money to have been invested, so as to protect the appellant; or have required security for the faithful application of the proceeds of the infants’ share. Sess. Acts 1865-66, pp. 167-8. The direction of payment to the guardians was clearly improper.
    5. The decree asked for by the appellant is this: A direction that the trustees and all other necessary parties should be made parties to the suit; a direction that the proper abatement should be made to the appellant for the defect in the quantity of the land; and with this view, that the cause be referred to a commissioner to ascertain how much land the parties in the suit have title to; that the decrees of the Circuit court be corrected, and the shares of the infants be properly invested and secured; and that costs be awarded the appellant.
    Griswold & Griswold, for the appellees:
    ’ 1. The proceeding was under chap. 124 of Code, p. 581.
    There is no proof of any deficiencj". And the \leficiency claimed, even if proved, is too small to justify vacating the sale. 1 R. C. 1819, p. 335, sec. 60; Code 1860, ch. 112, sec. 58, p. 544; Nelson v. Carrington, 4 Munf. 332; Nelson v. Matthews, 2 Hen. & Mun. 164; Neal v. Logan, 1 Gratt. 14; Jolliffe v. Hite, 1 Call 301. The sale was in gross. Keyton’s adm’x v. Brawford’s ex’ors, 5 Leigh 39.
    The trustees were not necessary parties. None are ^necessary parties except such as have a substantial material interest. 2 Rob. Pr. (old ed.) 262. The trustees had no such interest. The trusts were fully executed. They held merely the dry legal title. They could not disturb the title or possession of the appellant, and were bound to transfer to him the legal title upon his application. Hill on Trustees 278, 316; Suppt. R. C., p. 159, sec. 65; Code 1860, chap. 136, sec. 21, p. 611; Davis v. Teays et als., 3 Gratt. 283.
    It is too late for the appellant to claim relief, either because of any defect of title, or of any irregularities in the proceedings. It was incumbent on him to satisfy himself that the -title was good, the proceedings regular, and all proper parties were before the court, and make his objection -to the completion of the sale before the confirmation of the commissioners report. He will not be entertained in any complaint after such confirmation. 2 Daniel’s Ch. Pr. 1456, 1460, note 1; Threlkelds v. Campbell, 2 Gratt. 198; Worsham v. Hardaway’s adm’r, 5 Gratt. 60; Young’s adm’r v. McClung, 9 Gratt. 336; Daniel v. Leitch, 13 Gratt. 195, 210, 212; Faulkner v. Davis, 18 Gratt. 651; Cralle v. Meem, 8 Gratt. 496.
    But if he could object because of a defect of title, he could not be discharged from his contract if the defect could be cured within a reasonable time. And in this case it has been entirely cured by the deed of release from the surviving trustee. Daniel v. Leitch, supra, 195, 213, 216; Reeves v. Dickey, 10 Gratt. 138; Young’s adm’r v. McClung, 9 Gratt. 336.
    The order for a resale, after a rule to show cause, was the proper remedy of the appellee. 2 Daniel’s Ch. Pr. 1277-8; Clarkson v. Reed, 15 Gratt. 288.
    It was no error prejudicial to the appellant to direct the payment of the money to the guardian of the infants, without additional security. The purchaser’s title cannot be affected by the manner in which the *court disposes of the purchase money. He has nothing to do with it. Daniel v. Leitch, 13 Gratt. 195, 211.
    It is too late to raise the question as to Branch being the surviving trustee. He calls himself so in the deed of release. No contrary suggestion was made in the court below. Claiming relief from his purchase, the onus was on the appellant, to show himself entitled to it.
    A decree, otherwise right, will never be reversed for error in awarding costs. Ashby v. Niger, 3 Rand. 165.
    
      
      For monographic note on Costs, see end of case.
    
    
      
      He decided the case in the court below.
    
    
      
      Sale in Gross—Abatement.—See the principal case cited and the decision discussed in Watson v. Hoy, 28 Gratt. 711. See also, foot-note to same case on this point.
      See principal case approved in Farrier v. Reynolds, 88 Va. 147, 13 S. E. Rep. 393.
    
    
      
       Judicial Sales—Payment to Commissioner—Authority to Receive the Money.—See Finney v. Edwards, 75 Va. 52. where the court held that the commissioner had authority under decree and peculiar circumstances of the case to collect the purchase money.
      A commissioner selling land under a decree of court cannot collect the deferred installments of the purchase money when the bonds were directed to be returned to the court. Omohundro v. Omohundro, 27 Gratt. 824.
      A special commissioner, appointed by a decree to make a sale of land, who makes the sale and takes the purchase bond payable to self as commissioner, has no authority to sue on or collect on said bonds unless specially authorized to do so. Blair v. Core, 20 W. Va. 265; Clarke v. Shanklin, 24 W. Va. 30.
      Same—Same—Failure of Commissioner to Give Bond —Liability of Purchasers.—The purchaser at a j udicial sale is bound to takenotice of the decrees, etc., under which the sale is made and must be presumed to know the law which governs such sales. Hess v. Rader, 26 Gratt. 749. So, the purchaser does not relieve himself from liability for the purchase money by payment to a commissioner who has not yet given the bond required by law in order to authorize him to receive payment. Hess v. Rader, 26 Gratt. 746. and foot-note\ Tyler v. Toms. 75 Va. 117; Whitehead v. Bradley, 87 Va. 676, 13 S. E. Rep. 195; Shumate v. Williams (Va.). 22 S. E. Rep. 808; Eggletonv. Whittle, 81 Va. 163, 4 S. E. Rep. 222; Eggleton v. Dinsmore, 84 Va. 858. 6 S. E. Rep. 146.
      Where receiver collects the money from a purchaser at a judicial sale before giving the required bond and fails to account, though he may afterwards give the bond, the purchaser may be compelled to pay the money a second time. Woods v. Ellis, 85 Va. 471, 7 S. E. Rep. 852.
      Same—Same—Defects in Commissioner’s Bond.—See Lloyd v. Erwin, 29 Gratt. 598, and foot-note.
      
    
   MONCURE, P-,

after stating the case, proceeded:

The errors assigned in the petition for an appeal to the District court, which were the errors relied on by the counsel for the appellant, in the argument of the case before this court, are:—1st, that the trustees in the deed of the 31st day of May 1843, should be made parties to the suit; 2ndly, that an abatement of the purchase money should be made for the alleged deficiency of one acre in the quantity of the land; 3rdly, that the shares of the infant defendants should be properly invested and secured; and 4thly, that the appellant was improperly subjected to the payment of costs, as he was not in default. I will proceed to consider these supposed errors in the order above stated; and

First, that the trustees aforesaid should be made parties to the suit.

Whether they should be parties to the suit, or rather should have been parties to the suit at the time of its institution or not, depends upon whether they had then any legal title to the land. And that question depends upon another;' which is, whether, by our statute of uses, the legal title was transferred from them to the children of Anna D. Tatum, the plaintiffs and defendants in this suit at the time of her death in October 1865, or at the time of her husband, Theophilus Tatum’s death, in November 1865. Certainly such title would have been so transferred by the operation of the English ^statute of uses. 1 Domax’s Dig., pp. 194-195, marg. There seems to be a material difference between the English statute of uses and ours; and it may be doubtful whether our statute would have that effect. Id. and seq. ; Bass v. Scott, 2 Leigh 356. Our statute has not 3ret been judicially construed, except that in the case just cited, it was considered as not extending to a devise. If the trustees in this case had any title to the land at the time of the institution of the suit, it was a mere dry legal title, such as is described in Hill on Trustees, pp. 316-317, marg. There was but one duty which then remained for them to perform, and that was, to convey that legal title to the plaintiffs and defendants in this suit, who were seized of a perfect equitable title, and were in the actual possession and enjoyment of the estate. If these trustees had refused to perform that duty on request, they might have been compelled to do so by suit, and would have subjected themselves to the costs of the suit. Id. 278, marg. They could not have charged the estate by any act or default of theirs, and could not have recovered possession of it by an action at law against the beneficiaries. Code, ch. 135, § 21, p. 611. It is not strange therefore that the counsel who drew the plaintiff’s bill considered that they had no interest in the subject of the suit, or at least not such an interest as to require them to be made parties. But all the facts in regard to the title were set out in the bill, and the deed of trust was exhibited therewith, so that the court might see, and the purchaser might see, the precise state of the title. No objection was made by the purchaser to the title, nor to any supposed defect of the suit in not making the trustees parties, until long after the report of sale had been confirmed, the purchaser had received possession of the land, had paid a large part of the purchase money, had executed his notes for the balance, and his note for the last deferred payment had become payable.

*But without deciding whether this objection for want of parties, would have been valid, even if made by the purchaser before the confirmation of the sale, much less that it was valid when made for the first time about two years after the sale, on being pressed for the payment of the balance of the purchase money; I am of opinion that it was cured by the deed of release which was executed by Robert H. Branch, surviving trustee, under the said deed of trust, and filed in the cause when the last decree was entered therein. Surely if such a release had been executed before the suit was brought, it would have been unnecessary and improper to have made the trustees parties; and for the same reason, it was unnecessary, and would have been improper, to amend the bill and make them parties after that release was executed and filed. The appellant says, he does not know that Branch is the “surviving trustee,” and, that “if it be a fact that Boyd, the other trustee, is dead, it ought, somehow, to have been properly stated in the pleadings; it certainly is not a fact of which the court will take judicial notice.” The deed of release recites that Branch was the surviving trustee. No objection was made to it in the court below. It was not there pretended by the purchaser that Boyd was not dead, nor did he call for proof of the fact, or ask for time to enquire into it. The objection was made, for the first time, in the appellate court; and it then came too late. The presumption is, that Boyd was dead and Branch was the surviving trustee, as the deed recites. I am, therefore, of opinion that this first assignment of error ought to be overruled.

Secondly, that an abatement of the purchase money should be made for the alleged efficiency of one acre in the quantity of the land.

The tract of land was supposed to contain ninety acres. It was so described in the bill, and was no doubt so described in the advertisement of sale, though in the *deed of trust, which was filed as an exhibit with the bill, it is described as containing ninet3r acres, “be the' same more or less.” I think the land was not sold by the acre, but that it was sold by the tract for $4,750, which is far from being an equimultiple of the supposed number of acres. The boundaries of the land were well defined, and are minutely set out in the deed of trust. There appears to have been no doubt or difficulty as to any of the corners or 'lines. The purchaser no doubt viewed every foot of it. Being a small tract, he could probably stand in the centre and see all of it at one view. He was a practical surveyor, and could estimate the quantity with sufficient accuracy to be satisfied that it was about ninet3r acres; and he was willing and agreed to give for it $4,750. It is extremely improbable that he would have been unwilling to give that price for. it if he had known that the actual quantity was eighty-nine instead of ninety acres; or that the owners, if that had been the fact, would have taken any less for it. The improvements were valuable, and worth at least as much as the land. The purchaser called for no surve3r, even supposing that he had a right to call for one; but paid a large part of the purchase money, -gave his notes for the balance, and entered into the possession and enjoyment of the land; and the sale was confirmed by the court. Being a practical surveyor, he knew that surveys of the same land rarely, if ever, produce precisely the same quantity, but almost always vary to some small extent, on account of the variation of instruments. That the quantity might vary in this qase, one way or the other, to the extent of an acre, was what might reasonably have been and probably was expected. But it was as fair for one as for the other. The purchaser sa3*s, he afterwards made an experimental survey and ascertained the deficiency to be an acre and a fraction. Suppose he had ascertained an excess to that extent instead of a deficienc3r, *would he have considered himself bound to pay for it? Would he have been held liable for it? Would the parties to the suit have thought of claiming it? I think not. Then the rule ought to work both ways.

But a conclusive answer to this assignment of error is, that there is no proof in the Record that the alleged deficiency exists. The fact is asserted in the affidavit filed by the purchaser, nearly two years after the sale, in answer to the rule requiring him to pay the balance of the purchase money. But it is an affirmative allegation, the proof of which devolved on him who made it. The ground on which alone a purchaser in such a case is entitled to relief, is that of mistake. And he must clearly prove the mistake, especially in a case like this, in which the report of sale as been confirmed, and there has been so great a lapse of time, and so much done by the parties, founded on the assumption that there was no such mistake. Sven if it be true, as stated in the affidavit, that the quantity of the land is stated as 89 acres in the books of the commissioner of the revenue (of which however there is no legal evidence), that does not prove the real quantity. I am therefore of opinion that this second assignment of error ought to be overruled.

Thirdty, that the shares of the infant defendants should be properly invested and secured.

The sale in this case was made when the infant defendants were nearly of age: one of them being nineteen and the other seventeen ; and both of them having answered the bill in proper person upon oath, expressing a desire that the sale should be made. Their portions of the cash payment were decreed to be paid, and have no doubt been paid, to their legally qualified guardians. The balance of the purchase money remaining unpaid is about equal to the amount of their shares of the whole purchase money. When the last decree in the cause was made requiring the purchaser to pay the *balance of the purchase money, one of these two infant1 defendants had probably arrived at age, and the other is no doubt now of age. Certainly it is the duty of the court, in such a case as this, to see that an infant’s share of the fund is secured, as required by the Code, chapter 124, ? 3, page 581. The commissioner appointed to sell the land in this case was required, before acting under the decree, to enter into bond with good security in the penalt3r of six thousand dollars, conditioned according to law. As the infants would soon be of age, it was no doubt desired by them; and thought proper by the court, that their portions of the cash payment should be paid to their legally qualified guardians, instead of being loaned out or otherwise invested for short periods. This may have been error; but no one complains who has any right to complain of it. The infant defendants, or ■ rather the defendants who were infants, do not complain of it. They are satisfied, no doubt because they have received their money*, or the full benefit of it. The purchaser has no right to complain of it. When he paid the money, in obedience to the decree, to the commissioner of the court, who was authorized to receive it, and who had given bond with good security for its faithful application, he thereby discharged himself from all further liability for this money, and the proper application of it devolved upon the court. It is settled that a purchaser at such a sale is not answerable for any disposition which the court may make of the purchase money. Brown v. Wallace, 4 Gill & John. R. 479; Daniel, &c. v. Leitch, 13 Gratt. 195, 211. I am therefore of opinion that this third assignment of error ought to be overruled.

fourthly and lastly, that the appellant was improperly subjected to the payment of costs as he was not in default.

The costs here referred to are not the costs of the *suit. All of those costs which had been incurred down to the time of the distribution of the cash payment, were paid out of the amount of that payment; and the sum of thirty-eight dollars and fifteen cents was then retained by the commissioner to meet the future costs of the suit and to be accounted for thereafter. The only costs alluded to in this assignment of error are the costs of the proceeding under the rule, which cannot be more than one or two dollars; that is, the clerk’s fee for entering it and the sheriff’s for serving it. And these costs would no doubt have been given up by the parties, or refused to be imposed on the purchaser by the court, if, on the return of the rule, he had paid the balance of the purchase money or given assurance of such payment in a short time. But he did not do so. On the contrary he stood out against the rule, and defended himself against it on the ground of defect of quantity, and defect of parties, notwithstanding the execution of the deed of release aforesaid. And when the rule was made absolute, instead of then acquiescing, he carried the case to the District court, and brought it thence to the Court of Appeals. In persisting in his resistance of the rule after the deed of release was filed, he lost the advantage he might otherwise have had in getting rid of these costs, and made the rule thenceforward a necessary proceeding. Under these circumstances, I think the court committed no error in subjecting him to these costs, and certainly none for which the decrees or any of them ought to be reversed.

I am therefore of opinion that the said decrees ought to be affirmed.

The other judges concurred in the opinion of MONCUEU, P.

Decree affirmed.  