
    *Londons v. Echols & als.
    April Term, 1866,
    Richmond.
    1. Judicial Sales — Validity of-Purchaser Must Be a Party. — rn a suit for the sale of infants’ lauds, a sale having- been made and confirmed, and a conveyance made to the purchaser; he must be brought before the court as a party, before the court -will enquire into the validity of the sale.
    2. Same — Same—Same—Appellate Practice. — If in such a case an appeal is allowed before the purchaser is made a party in the cause, it will be dismissed as improvidently awarded, and the cause sent bach for further proceedings.
    In March, 1861, Robert J. Echols, in his own right and as guardian of Lewis P., Sterling C., and Susan V. London, infant children of John J. London deceased, filed his bill in the Circuit court of Nelson county, for, among other things, the sale of the real and personal estate of his wards. The real estate consisted of a large tract of land on James river in the county of Nelson, containing fifteen hundred and forty-five acres, called “Soldier’s Joy,” anda house and lot in the city of Richmond; and the personal estate embraced some sixty slaves. . The bill made the children of John J. London deceased, Mrs. Echols, who was his widow and had married the plaintiff, and the trustees in her marriage settlement, and Daniel H. London, William A. r^ondon, James Higginbotham and wife, Tirza London, Winston Woodruff and wife, and George W. Davis and wife, defendants, Daniel II. London, and those named after him being made parties as the persons who would be entitled to the estate of the infants, if they died under the age of twenty-one years.
    *At the March rules 1861, the plaintiff’s bill was taken for confessed, as upon service of process returned executed, unless the defendants should appear at the next rules and file their answers; and at the April rules the defendants still failing to appear and file their answers, the bill was taken for confessed and the cause set for hearing. At the October rules 1862, on the motion of the plaintiff, S. H. Loving was appointed guardian ad litem of the infants to defend them in this canse.
    James Higginbotham and the trustees of Mrs. Echols filed their answers, ana a formal answer was put in by the guardian ad litem, but was not sworn to.
    In November, 1862, evidence was taken upon interrogatories agreed upon and signed by Loving as the guardian ad litem of the infants, and the counsel of the plaintiff, in relation to the propriety and expediency of a sale of the real estate and slaves; and this evidence was strong to show that the interest of the infants required it.
    By a written agreement, bearing date the 12th of November, 1862, Echols made a sale of the Soldier’s Joy tract of land to Dr. Peachy H. Gilmer, for the sum of fifty-two thousand five hundred dollars; of which there was to be paid in cash when a good and clear title was made, twenty thousand dollars, with the privilege of paying at the same time an additional sum of three or ten thousand dollars; and for the residue Dr. Gilmer was to execute his bonds on six years’ time, in equal annual payments, bearing interest from the date of' the deed, to be paid annually, with a lien upon the land to secure the credit payments. This sale was conditional upon its being approved and confirmed by the court.
    At a special term of the court held on the 19th of November, 1862, the canse came on to be heard (as recited in the decree), as having been regularly set for hearing at the rules against Daniel H. London, William A. London, *Davis and wife, and Woodruff and wife, and upon the answers of James Higginbotham, the trustees of Mrs. Echols and of the guardian ad litem, and upon the bill, exhibits and depositions. And the court was of opinion and decided that it was manifestly the interest of the infant defendants and all concerned that the real and personal estate in the proceedings mentioned should be sold, and the proceeds thereof invested in interest bearing stocks. “And it appearing to the v court that the plaintiff, pending this suit, to wit, on the 12th instant, has negotiated a provisional sale of the Soldier’s Joy estate ■situated in this county, containing fifteen hundred and forty-five and a quarter acres, to Peachy' H. Gilmer, at the gross sum of fifty-two ,.thousand five hundred' dollars; twenty thousand dollars of which sum to be paid when a good and clear title is made him, and for the residue to execute six several bonds for equal sums, payable in one, two, three, four, five and six years, with interest from the date of the deed conveying him title, and a lien reserved in the deed for unpaid purchase money, and moreover that the said Gilmer is to pay annually the interest upon the whole purchase money 'to be secured by the said bonds, the court doth in all things ratify and confirm the said sale, and will proceed as hereinafter provided, to execute the same. The court doth therefore adjudge, order and decree, that so soon as the said Peachy H. Gilmer shall deposit the sum of twenty , thousand dollars in the Citizens’ Savings Bank of Lynchburg to the credit of this suit, and execute his bonds for the deferred payments to the plaintiff -as commissioner of this court, and deposit the same with the papers in this cause, then the court appoints Robert Whitehead a commissioner to convey the legal title of said land to the said Peachy H. Gilmer (reserving the lien aforesaid), in which deed the defendant Maria W. Echols must unite. ” The decree then proceeded *to authorize the sale of the house and lot in Richmond, and the slaves, with directions' to deposit the proceeds of sale in the Citizens’ Savings Bank of Lynchburg.
    *Note by tbe Judge. 'Such was the case also ot Badgers v. UoCluer's adm’r, 4 Gratt. 81, as I have ascertained from the original papers. Noffsinger was the purchaser.
    In April, 1863, Echols reported to the court, that Dr. Gilmer had deposited twenty-five thousand dollars in the Citizens Savings Bank of Lynchburg, and had executed his six bonds for the balance of the purchase money, according to the terms of the decree; and that Robert Whitehead had executed and delivered to Gilmer a deed for the land, in which a lien for the unpaid purchase money was reserved; and in which the plaintiff and his wife had joined. And the cause coming on again to be heard on the 28th of April, 1863, this report, as well as the report of the sale of the slaves, was confirmed.
    Daniel H. London for himself, and as next friend of the infants, and the other heirs of these infants having in April, 1864, given a notice to Echols that they would move the judge in vacation to set aside the decrees made in this cause for irregularities in the proceedings, in October, 1864, Echols filed an amended bill for the purpose of correcting these irregularities; and he took testimony to prove the expediency of the sale he had made to Dr. Gilmer.
    The motion of which notice was given was not made, but London, as the next friend of the infants, applied to this court for an appeal from the decrees of the 19th of November, 1862, and the 28th of April, 1863; which was allowed.
    John Howard and Green, for the appellants.
    Grattan, Macfarland and N. Howard, for the appellees.
    The only question discussed, by the council or decided *by the court, was, whether the court would decide upon the objections to the decrees taken in the petition of appeal, in the absence of the purchaser.
    
      
      Judicial Sales—Validity of—Purchaser Hust Be a Party.—In Heermans v. Montague (Va.), 20 S. E. Rep. 904, the court said: '“While purchasers at judicial saies are universally regarded as parlies to the suit under a decree in which they purchased, yet, unless they are already otherwise parlies, the mere fact of their being purchasers does not bring them sufficiently before the court to make it proper to render a decree aifecting their interests without any further notice to them. Parker v. McCoy. 10 Gratt. 594; Hughes v. Johnston, 12 Gratt. 479; Pierce’s Adm’r v. Trigg's Heirs, 10 Leigh 406; Londons v. Echols, 17 Gratt. 19.’’ See also, principal case cited as to this point in Estill v. McClintic. 11 W. Va. 424.
    
   JOYNES, J.,

delivered the opinion of the court:

The court is of opinion that this case is ruled by that of Hughes and wife v. Johnston, 12 Gratt. 479. The interests of all parties will be best promoted by remanding the case to the Circuit court, to be there further proceeded in, after the purchaser of the “Soldier’s Joy” estate, and those claiming under him, if any, and all other parties interested, shall have been brought before the court. Then the alleged irregularities of the proceedings can be investigated upon the evidence now in the cause, and such other as any of the parties may produce, and may be corrected, if they admit of correction ; defective proof may be supplied, as far as may be proper; any accounts may be taken which may be necessary to do justice between the parties. And the court, with all the facts and all the parties interested before it, can determine, without the risk of injustice, whether the sale, which is the main subject of controversy, should stand or be set aside.

It would be contrary to natural justice, and to the practice which has prevailed in like cases, to conclude the purchaser, whose purchase has been confirmed and consummated by a conveyance of the title, by a decision of these questions before he has been brought before the court. The purchaser was brought before the court by supplemental proceedings in Pierce’s adm’rs v. Trigg’s heirs, 10 Leigh 406, and in Parker v. McCoy, 10 Gratt. 594, as well as in Hughes and wife v. Johnston, 12 Gratt. 479, before cited; while, in Huston’s adm’r v. Cantrill, 11 Leigh 136; Cocke’s adm’r v. Gilpin, 1 Rob. R. 26, and Buchanan v. Clark, 10 Gratt. 164, there *was no necessity to resort to supplemental proceedings, because the purchaser was already a party in the cause.* See also Bank United States v. Ritchie, 8 Peters R. 128; Colclough v. Sterum & al., 3 Bligh P. Cas. 181; Coger v. Coger, 2 Dana’s R. 270; McKee’s heirs v. Hann, 9 Dana’s R. 526; Parker’s heirs v. Anderson’s heirs, 5 Monr. R. 445.

It is, therefore, adjudged, ordered and decreed, that the appeal in this case be dismissed as improvidently allowed, that Daniel H. Ivondon, the next triend of the appellants, who are infants, pay to the ap-pellees their costs, and that the cause be remanded to the Circuit court to be there further proceeded in according to the foregoing opinion, in order to a final decree.

Appeal dismissed as improvidently allowed.  