
    Heywood v. Covington’s Heirs.
    April, 1833.
    (Absent BitOOKfi, J.)
    Bill tor Specific Execution — Effect Where Cause Is Still Fending in Lower Court — Case at Bar. — In a suit in the county court in chancery between the heirs of a decedent, the court decrees, that a mill, whereof partition can no otherwise be made, shall be sola by commissioners on a credit of twelve months; the commissioners make the sale and report it: the court, after the twelve months elapsed, confirm the report, and order the commissioners to convey to the purchaser; then, a conveyance is tendered to the purchaser, who refuses to complete trie purchase, the mill haying ricen carried away by a fresti within the twelve months: and while the cause is yet pending in the county court, the heirs exhibit a bill in the supe-riour court of chancery against the purchaser for specific execution: I-iiino, that as the cause in the county court was still pending, this bill In the su-perionr court could not be entertained.
    Judicial Sales — Change in Value of Property before Confirmation. — Quaere, whether the purchaser is bound to bear the loss arising to the property from the fresh, within the twelve months, and before the report of sale was confirmed?
    William Covington late of Chesterfield, died intestate, seized of a mill and mill seat on Swift creek, and some other real estate, in that county, and leaving six children his heirs at law. The property was so situated, that a fair and equal division thereof could only be made by selling the mill and mill seat, and dividing the proceeds of sale among the parceners; and in a suit in chancery in the county court *of Chesterfield, in which some of them were plaintiffs, and the others defendants, the county court, satisfied that a sale of this property was the only means of making a just division of the estate, decreed, that the mill and mill seat should be sold at auction, on a credit of twelve months, and that the proceeds of the sale should be divided among the parties according to the statute of descents; and appointed commissioners to make the sale and to divide the proceeds accordingly. The commissioners sold the mill and mill seat, in pursuance of the decree, and made report thereof to the court, in which it was stated, that John Boast Was the purchaser, at the price of 610 dollars. And after twelve months had elapsed and the purchase money had become due. the court made another interlocutory order, directing the commissioners to execute a deed conveying the property to the purchaser or purchasers at the sale, and to make a report of their proceedings in order to a final decree. The commissioners thereupon executed a conveyance to Boast, the purchaser mentioned in their report o£ sale; and most of the heirs of Covington executed another deed, conveying the property to Boast and Joseph Heywood, who, as thej' understood, had in fact been jointly concerned with Boast in the purchase at the sale made by the commissioners. The deed of the commissioners to Boast, was tendered to him. But, in the interval between the sale made by the commissioners, and the interlocutory order of the court directing them to make a conveyance of the propertj', the mill dam had been swept away, and the mill house removed from its scite, by a iresh; and therefore Boast refused to accept the conveyance tendered to him, and complete the purchase. The commissioners made no report to the court of their proceedings under the last order; nor were any further proceedings ever had in the cause, which remained, and yet remains, in the county court, undetermined, and neglected by the parties.
    
      But the heirs of Covington exhibited their bill against Boast and Heywood in the superiour court of chancery of ^Richmond, setting forth all the proceedings in the cause in the county court; charging, that, though it appeared by the report of sale made by the commissioners, that the property had been sold to Boast alone, yet Heywood was in fact his partner in the purchase, jointly and equally, interested therein ; and praying a decree for specific execution of the contract of purchase against both, if in truth they were joint purchasers, or if Boast was the sole purchaser, against him alone.
    Boast and Hey wood put in a joint answer, in which they stated, that Boast was the sole purchaser at the commissioners’ sale, and that it was afterwards agreed between Boast and He3rwood, that the latter should be jointly and equally interested in the purchase: that they were, at the time, anxious and ready to complete the purchase immediately; and they applied, repeatedly, both to the commissioners and to Coving-ton’s heirs, to make a conveyance of the title,, and had deeds prepared to be executed by them, respectively, conveying the same; but neither the commissioners, nor the parties interested, paid any attention to this request, for more than twenty months, and not until the mill dam and the mill had been so injured by a fresh, that it would have required an expenditure of 500 dollars to put them in such a state of repair as to make them fit for use: and that, in consequence of the neglect of the vendors to complete the purchase on their part, by making a conveyance of the title, the vend-ees had never taken possession of the property, and thought themselves now exempted from any obligation to complete the purchase on their part. And, finally, they pleaded the statute of frauds.
    The depositions taken in the cause, left it somewhat doubtful, whether Heywood was originally jointly concerned with Boast in the purchase at the commissioners’ sale, or whether Boast was ' orignally the sole purchaser, and, Heywood became jointly interested in the purchase bjr a subsequent verbal agreement between him and Boast? But upon the whole, it appeared, that, though Boast alone appeared *as bidder at the sale, Heywood was, from the first, jointly interested with "him in the purchase.
    The chancellor declaring that the plaintiffs were entitled to demand specific execution of the contract from both the defendants, decreed against them both, that they should pay the plaintiffs the purchase money, 610 dollars, with interest from the date when it should have been paid &c. And Heywood applied, by petition, to this ■court, for an appeal from the decree; which was allowed.
    Spooner for the appellant,
    insisted, 1. That, under the circumstances of the case,’ the plaintiffs were not entitled to a specific execution; they having been themselves in default, in not promptly executing the contract, and in not taking any step towards the execution of it, on their part, till the property had been most materially injured, and rendered almost valueless. 2. That the vendors ought to bear the loss arising from the injury to the property by the freshes, in the interval between the sale by the commissioners and the confirmation of their report of sale by the county-court. And 3. That, seeing that the suit in the county court was still pending there- and undetermined, and involved the whole-subject in controversy, the superiour court of chancery could not properly entertain this bill.
    There was no counsel for the appellees.
    
      
      Judicial Sales — Cause Pending in Chancery Court-Jurisdiction. in Taylor v. Cooper, 10 Leigh 320, it is said by Tucker. P., before confirmation of the report, and while the cause is yet pending in the court of chancery, T am of opinion that to that tribunal alone can the purchaser resort for the adjustment of his rights and the enforcement of his claim. Such was the case of Crews v. Pendleton, 1 Leigh 297, and Heywood v. Covington, 4 Leigh 373. See also, citing the principal case, Braxton v. Harrison. 11 Gratt. 64; Terry v. Coles, 80 Va. 703.
    
    
      
      Same — Change in Value of Property before Confirmation. — See the principal case cited in foot-note to Taylor v. Cooper, 10 Leigh 317: Daniel v. Leitch, 13 Gratt. 211; Kable v. Mitchell, 9 W. Va. 513; Hyman v. Smith, 13 W. Va. 707.
      Same — Confirmation -Effect. — As to the effect of confirmation of a sale made under decree of court, the principal case is cited in Cocke v. Gilpin, 1 Rob. 39, and note: foot-note to Hudgins v. Marchant, 28 Gratt, 177; Childs v. Hurd, 25 W. Va. 533; Childers v. Loudin, 51 W. Va. 559. 42 S. E. Rep. 639.
      See monographic note on ‘’Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
   TUCKER, P.

If the mill and mill dam. were materially injured by freshes, after the sale and before the report of sale was confirmed, I should think, upon the authorities, that the loss should not fall upon the vendee, provided there was no fault in-him. In Davy v. Barber, 2 Atk. 489, Blount v. Blount, 3 Id. 636-8, it was held, that a purchaser must pay for lives falling in; if so, he cannot be charged with losses. And in ex parte Minor, 11 Ves. 559, and Twigg v. Fifield, 13 Id. 517, it was held, that the purchaser ought to be considered as having the purchase only from the time of the confirmation of the report of sale. But in Anson v. *Towgood, 1 Jac. & Walk. 619, lord Eldon said the-confirmation of the report related back, and thus unsettled the doctrine in Twigg v. Fifield. And see the course it behooves the purchaser to pursue to confirm his purchase, Sugd. Law Vend. 39, 40. So that it is possible the purchaser, in this case may not be absolved. But the point cannot now be determined; for the case is clearly coram non judice. The superiour court of chancery could not entertain the bill, pending the suit in the county court. Therefore, the decree must be reversed, and the bill dismissed. 
      
      Ingraham’s edi. Philadelphia 1820.
     