
    Wood’s Executor and Miller v. Hudson and Others.
    Decided, Feb. 18th, 1817.
    i. flortgages — Sale—Setting Aside — Inferior Price.— A sale of mortgaged land by Commissioners in Chancery ought to be set aside, and another decreed, upon its appearing to the Court that the highest bidder at such sale had previously agreed with a purchaser from the mortgagor, that he would allow such purchaser to redeem the land within a limited time, by repaying him his money with interest; and that, such agreement being known at the sale, other persons were induced to refrain from bidding, and, consequently the land was struck oft to him at a price inferior to its value.
    a. Same-Same — Application of Statute. — The Act of Assembly, “concerning the sale of property under .Executions, and Incumbrances,” passed February 1st, 1808, (2 R. O. p. 150,) applied to a sale of mortgaged land by Commissioners in Chancery, after the 1st day of March, 1808; notwithstanding the decree was pronounced, and the time limited for paying the money to redeem the land had elapsed, before the passage of that Act.
    Upon an Appeal from a Decree of the Superior Court of Chancery for the Staun-ton District, in three suits connected with each other, the material circumstances of which may be stated as follows.
    In April, 1803, Aaron Fuqua filed a Bill against Obadiah Fuqua, to foreclose a Mortgage on a tract of land in Kanawaha County, bearing date the 11th of August, 1801; and, at November Term, 1804, obtained a Decree, that, unless the defendant, *on or before the 1st day of January ensuing, should pay to the plaintiff the sum of 621. 10s. 4J^<3. with interest, &c., the defendant should be barred and foreclosed, &c , and that the land should thereupon be sold by certain persons appointed Commissioners for that purpose. The Commissioners sold the land on the first Saturday in May, 1805, at public auction, to Davis Hudson, for the sum of $310, which he paid to them, and they, after paying the debt, interest and costs to the plaintiff, and retaining six dollars for their trouble and expenses, in carrying the de-cretal order into effect, paid to the defendant’s administrator, (the defendant having died intestate since the decree,) the balance remaining in their hands. Aaron Fuqua the mortgagee, made the conveyance to Hudson the purchaser.
    At March Term, 1806, Henry Wood filed •a Bill against Davis Hudson, and Morris Hudson, his father, (who furnished the money, with which he made the purchase.) to set aside the sale; claiming the land, partly as a purchaser from Obadiah Fuqua, the mortgagor, who made him a Deed on the 15th of January, 1805, when he the said Wood, (though he knew of the mortgage, and of the pendency of the suit to foreclose,) was not informed of the Decree; and partly, on the ground that Davis Hudson had bought the land, at the sale by the Commissioners, for the benefit of him the said Wood, the money being lent by Morris Hudson for that purpose; that Morris and Davis Hudson both agreed, before the sale, that, if Davis should be the highest bidder, the complainant Wood should be allowed to redeem the land, by paying him with lawful interest, whatever sum he might give for the land, within two months thereafter; that this arrangement was understood by the Commissioners, and other persons present at the sale, and prevented others from bidding; in consequence whereof the said Davis Hudson became the purchaser, at the low price of $310, very far inferior to the value of the land: and (the Complainant having failed to pay the money within the two months, and having also failed to make the payment in October following, to which farther time indulgence was given,) the said Davis Hudson, afterwards refused to receive it, (when offered with interest,) and claimed the land as his own.
    The answers of Davis and Morris Hudson denied, that any loan of money was intended to be made by either of them, to *Wood or for his benefit; averring that the purchase was made by Davis for his own benefit altogether. They admitted, however, the agreement alleged in the Bill, that Wood was to be permitted to redeem the land in the manner therein mentioned; but contended that, since he had not redeemed it, within the time limited, he had no right to do so after the time had expired. It appeared, also, from the answer of Davis Hudson, and sundry depositions of witnesses, that the agreement, between him and Wood, was generally known at the sale; that Wood, relying upon it, and wishing the sum, he should have to pay to redeem the land, to be as small as possible, endeavoured to prevent the bidding of other persons, and consequently that the land, (which was worth five or six hundred pounds,) was cried out to Hudson at the surn before mentioned.
    In April, 1806, Davis Hudson filed a cross-bill against Henry Wood, in which he contested the right of the said Wood to the land, under his purchase from Obadiah Fuqua, on the ground, that that purchase Was made after the time had expired, which the Decree of 'November, 1804, had limited for the redemption of the mortgage; and. indeed, was nothing more than a speculation, upon a tract of land already decreed to be sold at public auction, which could give no legal title to the purchaser, nor introduce him favourably to a Court of Equity. He also, (insisting upon his right to the land as highest bidder at the sale, and again denying the truth of Wood’s allegation that he was bidder for his benefit, ) set up a claim as purchaser of the dower right of Polly Fuqua, widow of Obadiah Fuqua, in the same land, which dower right he had bought of her for $200; and, afterwards, (making her a party by an amended bill,) he clearly established his title, so far. by a Deed from her, and by her answer. He prayed that Wood might be compelled to account for rents and profits of the land, to make compensation for injuries to the timber and improvements, to deliver possession of the whole; or, at least, that the widow’s dower might be assigned to him, and a recompense decreed for its detention.
    Wood, by his answer, insisted on the same grounds of title before set forth in his bill, and also alleged that Mrs. Fuqua had promised to convey her right of dower to him, upon his '^proving that he had paid the original purchase money to Obadiah Puqua, which he averred he had done.
    On the 10th of April, 1807, the Chancellor, on the motion of Wood, granted an injunction to restrain Davis Hudson from recovering the land by Writ of forcible Entry and Detainer, until the farther order of the Court; and also prohibited Wood from committing waste, &c.
    
    At November Term following, an order was made, appointing Commissioners to lay off the widow’s dower, and to report the profits thereof received bjr Henry Wood; which order was obeyed ; and by their Report it appeared, that he was chargeable with one year’s rent of the dower land, rated at twenty dollars.
    At the same Term, the cause of Wood against Hudsons coming on to be heard, the Court decreed that the sale and report of the Commissioners, mentioned in the Bill and answer be set aside, and directed another sale to be made by the same Commissioners. In obedience to this Decree, the land was sold on the 14th of March, 1808, and again bought by Davis Hudson, for the sum of $536, he being the highest bidder; which sum the Commissioners retained in their hands, subject to the future order of the Court.
    On the 15th of April, 1808, the Chancellor, “being of opinion, that this case was not embraced by the Act oí Assembly of the last session, entitled an Act concerning the sale of property under Executions and Incumbrances,” affirmed the report, and decreed “that the plaintiff do forthwith deliver possession of the land to the defendant Davis Hudson,”’&c.
    On the 9th of January, 1809, a certain Thomas Miller, who claimed the same land, as a mortgagee from Henry Wood, having advanced a. thousand dollars, to enable the said Wood to pay the original purchase money to Obadiah Fuqua, and taken a mortgage to secure that sum, filed a Bill against Henry Wood, Davis Hudson, the Administrators of Obadiah Fuqua, and the Commissioners, contesting the propriety of the sale, so confirmed by the Court, on various grounds, which need not here be mentioned.
    At June Term, 1814, Wood having departed this life, the several suits were revived against his heirs and representatives. And on the 8th of July, 1815, the CHAN-CEEEOR, (BROWN) pronounced the following opinion and Decree.
    *“It appears to the Court, that in the cause first above mentioned of Wood v. Hudsons, a decree was pronounced on the 24th day of November, 1807, directing a re-sale of the land in controversy, by Commissioners therein named; in pursuance of which decree, four of the said Commissioners sold the said land to the defendant Davis Hudson, for the sum of $536, as appears by the report of their proceedings, returned to this Court on the 1st day of April, 1808. On the return of that report, this Court on the 15th day of April, 1808, pronounced a decree affirming the sale made by the Commissioners; directing possession of the land to be delivered to said Davis Hudson, and quieting his title thereto; directing the Commissioners, after retaining their Commissions, and the costs of sale, to pay, out of the purchase money, to the said Davis Hudson, the sum of $310, with interest from the 1st oí May, 1805, and to pay the balance of the purchase money into Court, subjed to its future order. By that decree, also, tie Court dismissed the Bill of the plaintiff Wood, as to the defendant Morris Hudson, and awarded the said Morris Hudson his costs. In pursuance of that decree, it appears that the said Davis Hudson has been put into possession of the land aforesaid, and, as appears by the report of said Commissioners, dated 25th June, 1808, has been paid the said sum of $310, with interest from the said 1st day of May, 1805, to the said 25th day of June, 1808, amounting in the whole, to the sum of $368,62 1-2 cents. That sum, together with $16,89 cents, the costs of sale, arid the commission allowed the said Commissioners, deducted from the purchase money, leaves still in their hands the sum of $150,54 1-2 cents, subject to the future order of this Court. Nothing therefore remains to be done in this cause, but to decide the question of costs between the plaintiff and the defendant Davis Hudson, and to dispose of the balance of the purchase money aforesaid. On the subject of costs, the Court thinks that, though the plaintiff hath obtained relief, yet that it is under circumstances, which do not entitle him to recover costs; but that, on the contrary, he ought to pay the costs of the defendant Davis Hudson. 'These costs, together with the costs decreed to Morris Hudson, may be paid out of the purchase money in the hands of the Commissioners. The balance of the purchase money, being a subject of controversy in the other two cases, will be disposed of in them. In the case of *Davis Hudson against Henry Wood and Polly Fuqua, the Court is satisfied that the plaintiff is entitled to recover the dower of the defendant Polly, in the land aforesaid, and the rents and profits thereof, during the time, that the possession was withheld from the said Hudson by the defendant Wood. The amount of the rents and profits, so to be recovered, is twenty dollars, as appears by a report of the aforesaid Commissioners, not dated, but made in pursuance of au order of this Court, of the 24th day of November, 1807. The particular land, assigned as the widow’s dower, by the plat of survey, made by Reuben Slaughter, dated on the 14th of March, 1808, and returned with the last mentioned report, need not be set apart for that purppse, as the plaintiff Hudson is owner of the whole tract. The plaintiff Hudson is entitled to his costs in this suit, to be paid by the defendant Wood, which, together with the twenty dollars for rents and profits aforesaid, must be paid out of the balance of the purchase money in the hands of the Commissioners. In the case of Miller against Wood, Hudson and the Commissioners, the Court will not now deliver any opinion between the plaintiff and the defendants, the representatives of Wood: but the Court is satisfied that the plaintiff has shewn no title to disturb the sale aforesaid, to the defendant Hudson, and no title to any relief against him or against the Commissioners. The bill will be dismissed against Hudson and the Commissioners; and the plaintiff must pay them their costs, to be retained out of the purchase money aforesaid, if sufficient there be for that purpose; and the balance of the purchase money, if any, must be paid into Court, to be disposed of between the plaintiff Miller, and the defendant, Wood’s representative, as may hereafter seem proper.”
    ‘.‘It is therefore adjudged, ordered and decreed, that, in the cause first above mentioned, the plaintiff Wood’s Executor do pay unto the defendant Davis Hudson, his costs by him in this behalf expended; which costs, together with the costs heretofore decreed in this case to the defendant Morris Hudson, the Commissioners aforesaid are hereby authorized and required to pay, out of the balance of the purchase money, still remaining in their hands. It is farther adjudged, ordered and decreed, that in the said second cause above mentioned, the plaintiff Davis Hudson be quieted in the enjoyment of the dower right *of the defendant Polly in the lands in the bill mentioned; and that he recover against the defendant, the Executor of said Henry Wood, the sum of twenty dollars for rents and profits aforesaid, and his costs expended in prosecuting this suit, to be paid also by the said Commissioners, out of the money in their hands as aforesaid. And it is farther adjudged, ordered and decreed, that, in the case of Miller against Wood’s Executor and others above mentioned, the bill of the plaintiff be dismissed, as to the defendants Davis Hudson and the Commissioners; and that the said plaintiff do pay unto the said defendants their costs, expended in defending this suit; to be paid out of the balance of the purchase money aforesaid, if sufficient there be for that purpose: and, if there be any surplus in their hands, after satisfying the several sums of money herein decreed, the said Commissioners are hereby required to pay the same into this Court. This last mentioned cause is continued, as to the other defendants, to be hereafter acted on.”
    From this Decree, Wood’s Executor and Miller appealed.
    
      
      See monographic note on “Mortgages" appended to Forkner v. Stuart, 6 Gratt. 197.
    
   February 18th, 1817,

JUDGE ROANE

pronounced the Court’s opinion.

The Court perceives no ground for disturbing so much of the Decree, as sets aside the first sale of the laud in controversy, made by the Commissioners in the proceedings mentioned; but is of opinion that the second sale made by the Commissioners was improperly made, and ought to-have been set aside; oo regard having been had to the provisions of the Act of Assembly, passed February 1st, 18C8, entitled, “an Act concerning the sale of property under Executions and Incumbrances.” The several Decrees, therefore, so far as they proceed on the principle of affirming that sale, are reversed with costs, and the causes are remanded to the Court of Chancery, to be finally proceeded in.  