
    *Daniel & als. v. Leitch.
    January Term, 1856,
    Richmond.
    (Absent, Alijos, p., and Daniel, J.)
    1. Pnrclia.se of Land Subject to Deed of Trust — Primary Fund for Payment of Debts — Case at Bar.— D purchases a tract of land on which there is a deed of trust to secure a debt which the creditor may enforce by a sale of the land whenever he may direct, and D retains the amount of the debt out of the purchase money for the purpose of paying it. D dies largely indebted, to amuch greater amount than can be paid out of his personal estate. The land is the primary fund for the payment of the debt; and the widow of D is not entitled to have it discharged out of his personal estate.
    2. Same — .Suit by Widow to Have Land Sold. — Tn such a case the -widow may institute a suit in equity to have the land sold and the debt paid, and to have her dower out of the residue of the purchase money.
    3. Same — Same—-Case at Bar. — In her bill the widow states that the personal estate will not be sufficient to pay the debts, and that it will be necessary to sell the land, for this purpose, and that it wiU be greatly for the interest of the heirs of D, who are infants, to have the land sold, and after paying the debts, to invest the balance of the purchase money in some of the slaves oí her husband's estate which are of peculiar value to them; and she asks for a sale of the land, the payment of the debt secured on the land, and the investment of the proceeds of sale after payment of debts in these slaves. She also prays that if the trust creditor will consent to it, that the land may be sold subject to the trust: but this the creditor declines.— The addition of this prayer docs not vitiate the proceedings as against the infant heirs; but the decree directing a sale of the lands and the payment of the trust debt, a purchaser under the* decree may obtain a valid title to the land sold, and will be compelled to complete his purchase.
    4. Sale of Infants’ Lands — Sale Confirmed — Reasonable Time to Perfect Title. — A sale of a part of the land having been made under a decree in the suit by the widow, and that sale having been confirmed by the court, even if the proceeding was irregular as to the infant heirs, yet the purchaser will not be discharged from his purchase if the title can be perfected within a reasonable time: And the ¡ guardian of the infants having filed his bill according to the statute, in which he asks to have the sale confirmed as very beneficial to the infants, the court may in that case confirm the sale, and thus assure to the purchaser a good title against the infant heirs; and compel him to complete his purchase.
    *5« 5ame — Same—Same.—After a sale of infants land has been confirmed by the court although the proceeding has been irregular, yet if the title of the purchaser can be made good, and it is for the interest of the infants to confirm the sale, the purchaser will not be released from his purchase; but if the interest of the infants is injured by the sale it will be set aside.
    
      6. Judicial Sales — Discretion of Court in Giv ingTime to Perfect Title. — Courts of equity have at least as large a discretion In giving time to perfect the title in cases of sales under their decrees,- as in cases of purchases by private contract.
    In the year 1823 the late Judge William Daniel borrowed of the president, masters and professors of William and Mary College the sum of five thousand dollars, for which he executed to them his bond with sureties payable on demand', with interest to be paid semiannually until the principal was demanded, and he at the same time executed a deed by which he conveyed to Edmund Christian, the bursar of the college, a tract of land called Broomfield, of some fifteen hundred acres, lying on both sides of Willis’ creek in the county of Cumberland, in trust to secure the same; in which it was provided that upon the failure of said Daniel to pay the said semiannual interest as it fell due, or the principal sum when demanded, the trustee should sell the said tract of land for cash, and out of the proceeds of sale should pay the debt. This land was devised by Judge Daniel to his three daughters, two of whom were married; and 'the husbands and daughters in June 1841 sold and conveyed the same to John Daniel. Up to this time the interest on the debt to the college had been paid; and the vendors paid to John Daniel out of the purchase money five thousand dollars to discharge the lien of the college upon the land. The balance,of the purchase money was paid.
    In 1850 John Daniel died, leaving a widow, Mary Ann Daniel, and two infant children; and Archibald C. Page qualified as his administrator. At this time the debt to the college had not been paid; and John Daniel was largely indebted, to much more than the value of his whole personal estate.
    *in February 1851 Mrs. Mary Ann Daniel filed her bill in the Circuit court of the county of Cumberland, in which she set out the foregoing facts. She stated that the whole estate left by her husband both real and personal was estimated at about thirty thousand dollars, of which the said tract of land was estimated at twelve thousand dollars; and that his debts would probably exceed twenty-three thousand dollars. íhat if the whole personal estate including the negroes were applied to the payment of the debts in the ordinary course of administration, the land would still be required to satisfy the demands of the creditors, and the real estate remaining would be unprofitable to herself and her infant children, as they would have no means ,of cultivating it; and if rented out, it would deteriorate in value: And from what she had learned, she apprehended the college were unwilling longer to continue the loan of five thousand dollars, which they were entitled to recall at pleasure.
    She further stated, that among the slaves belonging to the estate, there were some family servarits who were very valuable, and from their good qualities and long association and early attachments, were of peculiar value to herself and her children: And that if the property left to them after the payment of the debts should be in slaves instead of land, it would be more agreeable to their feelings and more conducive to their pecuniary interests. And having made parties defendants to the bill the administrator of John Daniel, and his infant children, the trustee Christian and the College and the executor of Judge Daniel, she prayed for a settlement of the administrator’s accounts, and for an account of the unadministered estate of John'Daniel real and personal, and also of debts due which had been paid by the administrator, and the character of those debts. That the court would decree a sale of the said tract of land, subject to the trust in *favor of the college, if the college and the executor of Judge Daniel were willing to continue the loan of the five thousand dollars with the provisions in the deed of trust specified; but if they were not willing to continue the loan, then that the land should be sold and the said debt paid out of the proceeds of. sale, and that the residue of said proceeds should be applied to the payment of the debts due from John Daniel deceased. That if any of the property could be saved for herself and the children, the administrator should be directed to reserve such of the slaves as would he most profitable to them; and that the said slaves, or a certain number of them equal in value to the residue of the proceeds of the sale of the land after the payment of the debt to the college, be held by herself and her children, subject to the laws of descent which are applicable to such estate.
    The president, masters and professors of William and Mary college and the trustee Christian and the executor of Judge Daniel answered, declining to permit the land to be sold subject to the trust of 1823, but expressing themselves willing that it should be sold and the debt be paid. The administrator Page also answered, stating that the estate was'very much involved in debt, and expressing his belief that the personal estate was not sufficient to discharge the indebtedness, and that the real estate would have to be applied to that purpose. He stated that he had just settled an account of his administration before one of the commissioners of the court, the report of which, with a statement of the outstanding debts, and the amount of assets real and personal, he filed with his answer,, which he believed was a true exhibit of the condition of his intestate’s estate. The infants answered by guardian ad litem.
    The report filed by the administrator showed that there were in his hands proceeds of sales of personal ^estate not then due, of one thousand four hundred and two dollars and forty-eight cents; that the slaves and other personal estate in his hands were estimated at nine thousand five hundred dollars; and that the ascertained outstanding debts amounted to twenty thousand one .hundred and forty-three dollars and fifty cents; showing a deficiency of personal assets to pay the debts, of eight thousand eight hundred and thirty-three dollars and sitxy-three cents. The real estate consisted of the tract of land before mentioned of fifteen hundred and seventy-six acres, estimated by the commissioner at eight dollars and fifty cents per acre, or thirteen thousand three hundred and ninety-six dollars.
    The cause came on to be heard on the '26th of March 1851, when the court, reciting that it appeared the college desired the payment of the debt of five thousand dollars secured by the deed of trust on the land in the bill and proceedings mentioned; that the personal estate of John Daniel deceased was to a considerable extent insufficient to discharge his debts, and that his real estate was chargeable with the same, decreed that the said tract should be sold on the premises at public auction on a credit, altogether or in separate parcels, as might be considered most likely to secure the best price; five thousand dollars of the purchase money to be paid in one year from the day of sale, and the balance in two equal annual instalments thereafter; that bonds and good security were to be executed by the purchaser and the title retained as additional security. And two commissioners were appointed to execute the decree, one of whom was the counsel of the plaintiff.
    In August 1851 the commissioners returned their report. They say that on the 30th of July, the time specified in the advertisements and notices, and the day succeeding, there was cloudy weather and rain. *The following day, the first of August, was fair and a considerable number of persons attended the sale; and that the land lying on the east of Willis’ river, amounting according to a survey made some years before by which they sold it, to six hundred and twenty-four and one-half acres, was knocked out to William Deitch at sixteen dollars per acre, making the sum of nine thousand nine hundred and ninety-two dollars.
    The cause came on again to be heard on the 29th of August, when the court confirmed the sale, and the commissioners were authorized to retain the purchaser’s bonds and collect the same as they fell due. And it being suggested that the purchaser would probably prefer paying the whole or a portion of the purchase money before it fell due, the commissioners were authorized to receive any such payment, discounting the same at the rate of six per centum per annum for the time for which the payment was anticipated: And they were directed after paying the expenses of the sale, to pay off the debt due to the college, and to pay over the residue to the administrator of John Daniel, to be applied by him in payment of the debts due from the estate of his intestate.
    And the commissioners were further authorized to sell that portion of the said tract of land lying west of Willis’ river, either at public or private sale, upon terms stated in the decree. And the death of the defendant Christian was suggested.
    In March 1852 the commissioners reported that Deitch the purchaser of the land had paid, on the 2d of October 1851, six thousand two hundred and ninety-eight dollars and thirty cents, paying off two of his bonds, and giving him a credit of one hundred and twenty-five dollars on his bond last due. That after paying the expenses of the sale they had paid to William and Mary college their debt, amounting to *five thousand and sixty-nine dollars and sixteen cents; and that they had paid over the balance in their hands, amounting to one thousand and forty-one dollars and one cent, to the administrator of John Daniel. And they reported that thej’ had obtained from the president, masters and professors of William and Mary college a deed releasing the trust given by Judge Daniel to secure the debt, and that the bond liad been delivered to them: And the deed and bond were returned with the report.
    At the same March term of the court William Deitch, the purchaser of the land aforesaid, presented his petition to be made a party defendant in the cause and to have the sale of the land set aside. After setting out all the proceedings in the cause down to the last report of the commissioners, he says, Of the proceedings in the said cause he had no knowledge until within a few days past. He saw the advertisement made by the commissioners in the newspapers, and spoke of becoming a bidder. He then heard it suggested that the proceedings had in the case were perhaps not exactly regular, but the suggestion made no impression on his mind; and supposing that all things had been rightly done in the cause, he attended the sale and was a bidder as aforesaid. Afterwards and before paying a cent of the purchase money, he out of abundant caution sought a conversation with one of the commissioners, who was the lawyer who had conducted all the proceedings in the suit. That the said commissioner assured him that all things had been rightly done, and that in that suit a good title would be made to him for the land he had purchased; and he therefore paid to the commissioners the sum of six thousand two hundred and ninety-eight dollars and twenty cents.
    He further stated that he had been advised that the sale made in the suit was absoluteljr null and void. *That the widow not being a creditor of the estate, had no right to bring a suit for the sale of her deceased husband’s real estate ; and that the real estaie of infants can be sold under the decree of a Circuit court only where the decree is made in a suit brought by the guardian of the infants, and prosecuted according to the mode prescribed by the statute regulating the manner in which the real estate of infants may be sold. He charged that his purchase was made and money paid under decrees that were void, and that a good title could not be made to him in the suit; and he prayed that he might be made a party in the cause; that he might be restored to the position he occupied before his purchase; that the money he had paid might be returned to him, and that his bond for the balance of the purchase money might be delivered up to him; and that the court would make all other orders and decrees that might be necessary to protect his just rights and to remedy the injury which had been done to him.
    In July 1852 Archibald C. Page was appointed by the County court of Cumberland guardian of the two infant children of John Daniel deceased ; and in August he as their guardian filed his bill in the Circuit court of Cumberland for the purpose of having a confirmation of the sale to Deitch, and a sale of the remainder of the tract. To this bill the infants, and the person who would be their heir if they died during infancy, their mother and Deitch were parties defendants. The proceedings in the former suit were set out, and it was alleged that the sale of the land was made at a high price, and that it would be very injurious to the infants to set it aside; and he prays that it may be sustained, and that the purchaser may be quieted in his title.
    . The bill further set out the other property of the estate of John Daniel deceased ; which consisted of ^slaves and the remainder of the tract of land before mentioned. It alleged that there was a large amount of debt yet due, and that it was very much for the interest of the infants that the remaining lands should be sold and applied to the payment of the debts; and that the slaves should be retained.
    The heir of the infants and their guardian ad litem answered, occurring in the opinion that the confirmation of the sale to Deitch and the sale of the other land would be beneficial to the infants. Deitch answered, denying that the proceedings in Mrs. Daniel’s suit were valid, or that he wás bound to abide by his purchase when every party was at perfect liberty to repudiate it. He insisted that in this suit the land of the infants could only be passed from them by a sale, and to such a sale he had no objection; but he positively objected to be bound where no other person concerned was bound. And he asked that the sale made in the other suit might be declared null and void.
    The bill and proceedings in this suit seem to have been in strict conformity to the statute in relation to the sale of infants’ lands, if the application to confirm the sale already made was proper.
    In January 1853 another bill was filed in the same court by Thomas M. Powers, a creditor of John Daniel, in behalf of himself and of all the other creditors, in which he sought to enforce the sale of the land to Deitch. To this bill Deitch set up the same objections to thetvalidity and confirmation of the sale as in the previous suit byT the guardian, and in his petition.
    On the 9th of March 1853 the three causes came on to be heard together, the first upon the papers formerly read and the petition of Deitch, when the court held that Mary Ann Daniel, the plaintiff in the first suit, had no right to institute that suit, and that neither the *infant heirs or any guardian that might be appointed for them were bound by the decree rendered therein; and that Deitch could not have obtained a good title “to the land purchased by him under that decree. And as he could not have obtained a good title under that decree, he was entitled to be discharged from his purchase, notwithstanding the now guardians of the infants, and the creditors of John Daniel, at the time of the hearing of the causes, expressed their willingness to ratify the sale as set forth in the bills in the second and third of said causes. And the court further held that as the debt due to the college was a primary charge upon the land, and that debt had been paid out of the money received from Deitch, he was entitled to be substituted to the rights of the creditor, and to have the land sold to reimburse him ; and commissioners were appointed to examine and report what part of said land would be sufficient to discharge said debt, and could be sold with least inconvenience to the heirs and widow of John Daniel; and whether the land could be sold most advantageously altogether or in parcels. And it was decreed that Page should pay to Deitch the sum of one thousand and forty-one dollars and one cent, paid to him under the former decree by the commissioners, with interest from the date of its receipt; and that the decree directing the commissioners to collect the balance l'emaining unpaid on Deitch’s third bond be set aside, and that they should return the bond to the clerk of the court.
    In the third cause the court decreed accounts of the debts due from the estate of John Daniel, and that the administrator settle his accounts before a commissioner of the court. And the same commissioner was directed to report the gross value of the whole tract of land,' and separately the value of the part lying on the east and west of Willis’ river, as also the annual values of *the whole and the separate parts; and also the personal assets remaining in the hands of the administrator, and their value.
    The report of the commissioner showed that after charging" the administrator with the sum of one thousand and forty-one dollars and one cent, received as before stated, he was in advance to the estate on the 1st of July 1853, four hundred and forty-eight dollars and seventy-six cents. That he had paid debts binding the heirs, eleven thousand five hundred and twenty-four dollars and forty-one cents; debts by simple contract, two thousand and twelve dollars and two cents. That the whole tract of land was of the value ■ of twelve thousand five hundred and twelve dollars; the land on the east side of Willis’ river was of the value of six thousand two hundred and forty-five dollars, and that on the west of the river, ■of six thousand five hundred and seventy-six dollars and fifty cents; the annual value of the whole was four hundred and fifty dollars; that on the east of the river was two hundred and fifty dollars, and that on the west was one hundred and fifty dollars; and the rents due from Beitch, five hundred dollars. The personal assets in the hands of the administrator consisting, except as to five hundred dollars, wholly of slaves, were valued at thirteen thousand five hundred dollars; the debts still due binding the heirs amounted to fourteen thousand six hundred and sixty-two dollars and seventy-two cents, and by simple contract, to four thousand seven hundred and ten dollars and thirty-two cents. There were other liabilities reported, amounting to two thousand one hundred and sixty-three dollars and thirty-three cents; thus making the whole assets, real and personal, twenty-six thousand five hundred and twelve dollars; and the whole debts, twenty-one thousand five hundred and thirty-six dollars and thirty-three cents. *
    On the 8th of August 1853 the causes came on *again to be heard, when the court confirmed the report to which there was no exception; and it appearing that the paj-ment of the debts would exhaust the whole personal estate and would require for their payment the sale of the greater portion of the real estate of John Daniel; and the court being of opinion that it was clearly shown, independent of the admissions in the answer, that the interest of the infants would be promoted and that the rights of no person would be violated by a sale of the real estate, and by investing the proceeds of sale, so far as the same might not be required in aid of the personalty, for the payment of debts, in the slaves left by the said John Daniel, it was decreed that Archibald C. Page, who was appointed a commissioner for the purpose, should sell the land lying east of Willis’ river at public auction upon a credit of one and two years; and that he should sell the land on the west side of the river either at public or private sale altogether or in parcels, upon the like credit, &c. Prom the decrees of the 9th of March and 8th of August 1853, the widow and infant children of John Daniel applied to this court for an appeal, which was allowed.
    The Attorney General and Patton, for the appellants.
    Morson and Robinson, for the appellee.
    
      
      Purchase of Land Subject to Deed of Trust — Primary Funds for Payment of Debts. — In Gayle v. Wilson. 30 Gratt. 173, it is said: “As between the vendor and the purchaser of the equity of redemption, the land is the primary fund for the liquidation of the incumbrance. See Daniel v. Leitch, 18 Gratt. 195, 206; Jumel v. Jumel, 7 Paige R. 591, 11 Paige 28; Stebbins v. Hall, 29 Barb. R. 524; Jones on Mortgages, §§ 736, 7-10-8-9. 756.”
      See also, Osborne v. Cabell, 77 Va. 467, where the principal case is cited.
    
    
      
      Same — Suit by Widow to Have Land Sold. — In Morris v. Peyton, 10 W. Va. 8, the court said: “There can be no more doubt in this case, than there was in the case of Daniel v. Leitch, 13 Gratt. 195, that at the death of Peyton, his widow had a right of dower in the said tract of land, subject to the vendor’s lien. She had a clear right to relieve the land from that incnmbrance, in order to make her claim to dower available. "She was entitled to go into equity to have the land sold, the incumbrance discharged, and her right of dower in the surplus secured to her.’ (Td.) If, then, she could be complainant, a fortiori she should be made a defendant to a suit like this.”
      In Hull v. Hull, 26 W. Va. 2, it is said, distinguishing the principal case, “A widow cannot bring a suit in chancery to have all the lands of her husband sold, and out of the proceeds of such sale to have the value of her dower paid, and the residue paid to the creditors of her husband, and if any surplus remains, to have it divided among her children, the sole heirs of her husband.”
    
    
      
      Saie of Infants’ Lands — Sale Confirmed — Reasonable Time to Perfect Title. — The principal case is cited and followed in the following cases: Thomas v. Davidson. 76 Va. 343; Berlin v. Melhorn, 75 Va. 642; “Watson v. Hoy. 28 Gratt. 710; Robinson v. Shacklett, 29 Gratt. 108; Long v. Weller. 29 Gratt. 351: Zirkle v. McCue, 26 Gratt. 530; Brock v. Rice. 27 Gratt. 816; Crawford v. Weller, 23 Gratt. 850; Jones v. Tatum. 19 Gratt. 737, and note; Cooper v. Hepburn, 15 Gratt. 568; Hurt v. Miller, 95 Va. 42, 27 S. E. Rep. 831; Carr v. Carr, 88 Va. 739, 14 S. E. Rep. 368; Terry v. Coles. 80 Va. 703; Hyman v. Smith, 13 W. Va. 772; Holden v. Boggess, 20 W. Va. 88; Todd v. Gallego Mills Mfg. Co., 84 Va. 590, 5 S. E. Rep. 676; Dunfee v. Childs, 45 W. Va. 165, 30 S. E. Rep. 106.
      See monographic note on “Infants’ Lands”; also, monographic note on “Judicial Sales" appended to Walker v. Page, 21 Gratt. 636.
    
   MONCURE, J.

The tract of land called Broomfield, and not the personal estate of John Daniel, was the primary fund for the payment of the debt of five thousand dollars due to the president and masters or professors of William and Marj- college, and secured by deed of trust on the land. When land is sold subject to a mortgage as part of the consideration money, the grantee, as between himself and the grantor, is bound to pay, and is liable to an action on the part of the grantor for breach of contract in not paying the 's'debt; but the grantee does not become personally liable to the mortgagee withoxtt some promise made to him; and even a promise made to him, does not always change the primary liability from the mortgaged land to the personal estate of the grantee. It must be made with intention to have that effect. Eor the authorities on this subject, see 1 Beading Cases in Equity 415-440, 65 Baw Bibr. 432-456. Though the land in question was conveyed by the devisees of Judge Daniel to John Daniel, with covenant of general warranty, it was in effect conveyed subject to the incumbrance of the deed of trust; the deb.t secured by which was part of the consideration money. The latter undertook with the former, and was bound to them, to discharge the incumbrance; but he had no communication, and made no contract for that purpose with the creditor.

At the death of John Daniel, his widow the appellant Mary Ann Daniel, had a right of dower in the said tract of land subject to the said deed of trust; in other words, in equity of redemption. Heth v. Cocke & wife, 1 Rand. 344. The land being the primary fund for the payment of the debt secured by the deed of trust, she had no right to have it paid out of the personal estate, even if that had not been, as it was, required for the payment of his other debts, to which it was wholly inadequate. She had a clear right to redeem the land and disengage it from the incumbrance, in order to make her own cliam beneficial or available. 2 Story’s Eq. Jur. I 1023. She was entitled to go into a court of equity to have the land sold, the incumbrance discharged, and her right of dower in the surplus secured to her. The creditor was unwilling to wait longer for the debt, and a sale of the land for its payment was necessary. The trustee in the deed might have sold it without any decree for the purpose. He might have sold the '*whole tract, as the deed provided for a sale of the whole; and in that case the surplus would have been subject to the rights of the widow and heirs to be adjusted and secured by the decree of a court of equity. The trustee was in declining health, and probably was not able to execute the trust. He died pending the suit, and shortly after it was brought. The creditor might have come into a court of equity in consequence of the death of the trustee or his inability to act, and had the land sold, the debt paid, and the surplus disposed of, as before mentioned, under a decree of the court. Or the widow and heirs or any or either of them might have brought a suit for the same purpose. It was not material by which of these parties the suit was brought, so that it was brought for that purpose, and the necessary parties were made.

The suit brought by the appellant Mary Ann Daniel was substantiall3r, I think, a suit of that kind. Her bill set forth all the necessary facts, and made all proper parties. She expressed her fears, from information received, that the president and masters or professors of William and Mary college were unwilling longer to continue the loan, which under the deed they had a right to recall at their pleasure. And she prayed, in effect, that if they were unwilling to do so, the land should be sold with a clear title to the purchaser, and out of the proceeds of sale, after paying the expenses thereof, the debt of five thousand dollars with any interest which might be then due thereon should be paid, and that the surplus should be invested in the purchase of such of the slaves of her husband (some of whom were represented as of peculiar value) as would likely be most profitable to her and her children, to be held by them subject to the laws of descent which are applicable to real estate. If this had been the whole frame of the bill, there could have been no Objection to it in form or substance. I see no impropriety in the prayer that the residue of the. proceeds of sale of the land after paying off the incumbrance should be invested in the purchase of slaves to be held as real-estate. Though the court could not have converted land into slaves in such a suit merely because the interest of the widow and heirs required it; yet having properly converted the land into money for the purpose of discharging the incumbrance, it might properly invest the surplus in any subject which the interest of the widow and heirs might require, provided the subject retained the character of realty. At all events, it could not be contended that a prayer for such an investment would invalidate the sale of the land.

But the bill prays for other and alternative relief, which it is supposed rendered the sale null and void. It prays for a sale of the land subject to the incumbrance, if the president and masters or professors of William and Mary college and the executor of Judge Daniel were willing to continue the loan. There would seem to be little substantial difference between a sale of the land and payment of the debt out of the proceeds, and a sale of the land subject to the payment of the debt. In either case the amount of the debt would, in effect, be a part of the price of the land. In the one case, it would be paid immediately; in the other, it would be assumed by the purchaser and paid by him afterwards. The chief difference would seem to consist in the accommodation which the latter mode would afford to the purchaser, and the enhancement of the sale which it would probably occasion. In either mode, the widow and heirs would realize the value of the equity of redemption, to be disposed of for their benefit and according to their respective rights. But let it be conceded that in this *suit there could properly have been no sale of the land subject to the incumbran.ee; and that the prayer for such a sale was an improper prayer. Would its insertion in the bill' affect the sale? I think not. At most it would be mere surplusage, there being enough in the bill to sustain the propriety of the decree which was made. The president and masters or professors of William and Mary college and the executor of Judge Daniel were unwilling to continue the loan. This rendered the prayer for a sale of the land subject to the incumbrance ineffectual; and made it necessary to proceed on the alternative prayer for a sale of the land and payment of the incumbrance out of the proceeds. The decree was such a one as might well have been made if the bill had been properly framed, and had contained no superfluous allegation or praj'er. And the sale was made according to the decree. It is the business of a purchaser at a judicial sale to see that all the persons who are necessarj' to convey the title are before the -court, and that the sale is made according to the decree. But he “will not be affected by error in the decree, such as not giving an infant a day to show cause, in cases in which a day ought to be given; or decreeing a sale of lands to satisfy judgment debts without an account of personal estate." 2 Daniel’s Ch. Pr. 1456; Bennett v. Hamill, 2 Sch. & Lef. 566; Lloyd v. Johnes, 9 Ves. R. 37. A fortiori he will not be affected by any imperfection in the frame of the bill, if it contain sufficient matter to show the proppriety of the decree. No more of the estate was sold in this case than was proper for the purpose of paying off the incumbrance: And that portion of it was sold which the convenience of the owner required. This is shown by the fact, that after the sale was set aside the Circuit court decreed a resale of the very same portion for the purpose of refunding to the purchaser *the amount of the incumbrance which had been discharged out of the purchase money paid by him. But if more of the estate had been sold than was necessary to discharge the incumbrance, the purchaser could make no objection to it, ‘ ‘the decree being a sufficient security to him, as it cannot appear but that it was right to sell the whole." 1 Sugd. on Vend. 68. (In fact, the deed of trust in this case provided for a sale of the whole.) Nor is he answerable for any disposition which the court may make of the purchase money. Brown v. Wallace, 4 Gill & John. 479. Nor for any error which the court may afterwards commit in decreeing a salé of the residue of the land. According to these views there was no defect in the title of the purchaser under the decree in this case.

But if there had been such defect I am of opinión that it was not incurable; and that it might, and ought to have been cured by a decree of confirmation in one or both of the other suits which were brought for that purpose. The highest bidder at a judicial sale is not considered as the purchaser until the report of sale is confirmed. Until then, according to the English practice, he has no right to resell at a-profit, except for the benefit of the owner of the estate. He is not liable to any loss by fire or otherwise, which may happen to the estate. Nor is he entitled to the benefit of any material appreciation of the estate by the accidental falling in of lives or by other means. Heywood v. Covington’s heirs, 4 Leigh 373; Taylor v. Cooper, 10 Leigh 317. As the chief aim of the court is to obtain as great a price for the estate as possible, it is in the habit, under certain regulations, of opening the biddings. 1 Sugd. on Vend. 84. It is unnecessary to enquire how far the English practice in these respects has been departed from in Virginia. Our courts certainly exercise a large discretion in refusing to confirm *a report of sale, and in ordering a resale of property sold under a decree. They will not confirm a report of sale and compel, a purchaser to complete his purchase when there is any defect of title of which he had no knowledge when- the sale was made. Nor will they confirm it when the directions of the decree in regard to the sale have not been pursued, if either party object to such confirmation. Accordingly, in Talley &c. v. Starke’s adm’r, 6 Gratt. 339, in which the land was not sold on the premises as directed by the decree, and the confirmation of the report was opposed by two of the purchasers on that ground; this court, for that and other reasons, reversed the decree of confirmation ; saying that inasmuch as the purchasers could not have enforced their contracts, if resisted by the parties in the cause, they ought not to be compelled to perfect them. If therefore there was any defect in the title which the purchaser could acquire under the decree in this case, the court on his motion would have refused to confirm the report of sale, and discharged him from his purchase.

But after confirmation of a report of sale, without any objection on the part of the purchaser, his rights' and obligations are very different. His inchoate contract is then perfected, and the court has a right to compel him to complete his purchase. He has still a right, according to the English practice, to have an order to enquire whether a good title can be made to him. But he may waive that enquiry; and if he pay the purchase money and enter into possession of the property, he will generally be considered as having waived the enquiry and accepted the title. 1 Sugd. on Vend. 73. In Virginia it would seem that the proper time for making objections to the title, and for having an enquiry, if one is desired, is before the confirmation of the report. Threlkelds v. Campbell, 2 Gratt. 198; *Young’s adm’r v. McClung, 9 Gratt. 336. There are certainly some defects to which objection may be made by a purchaser even after confirmation, here as well as in England: such, for example, as a defect arising from a want of jurisdiction, or want of parties, which would prevent a purchaser from getting the title intended to be sold and conveyed to him. But there is this difference between such an objection made before and after confirmation ; that In the former case, if the objection be well founded, the purchaser will be discharged peremptorily; whereas, in the latter, he will be discharged only if the defect be incurable, or be not cured in a reasonable time. A complete contract having, in the latter case, been made between the court and the purchaser, the court has the same right which any other vendor has to cure defects and perfect the title, provided it be done in a reasonable time, so as to occasion no injury to the purchaser. On a reference as to title in a suit for specific performance the enquiry generally is, Whether the vendor can, not whether he could make a title at the time of entering into the agreement? If a good title can be shown at any time before the master’s report, and even after the report, if the vend- or can satisfy the court that he can make a good title by clearing up the objections reported by the master, the court will generally make a decree in his favor. See 2 Daniel’s Ch. Pr. 1195, and notes; Seton v. Slade, 3 Leading Cases in Equity 392, 72 Law Libr. 14. “Where (says Lord Eldon) the master’s report is that the vendor getting in a term or getting administration, &c. will have a title, the court will put him under terms to procure that speedily. ” Coffin v. Cooper, 14 Ves. R. 205. In which case it was held that the purchaser could not insist on being discharged from the contract, the vendor having procured a good title by means of an act of parliament, *al-

though upwards of a month after the master’s report. It is true that in a case where there was error in the decree under which the estate was sold the purchaser was discharged, upon motion, from his purchase, although the parties were proceeding to rectify it: Lord Eldon, who decided the case, saying that he would not extend the rule which the court had adopted, of compelling a purchaser to take the estate when a title is not made till after the contract, to any case to which it had not already been applied. Lechmere v. Brasier, 2 Jac. & Walk. 287. I have no doubt of the correctness of the decision of that case, in which it seems a good title could not have been made until an infant heir became of age. But I cannot see why the same rule which applies to ordinary cases, should not apply to a judicial sale in this respect. The court considers itself to have greater power over the contract of sale when it is made under a decree, than when it is made between party and party. 2 Daniel’s Ch. Pr. 1465. And it may therefore exercise at least as much discretion in affording parties an opportunity of perfecting the title in the former as in the latter case. In the subsequent case of Chamberlain v. Lee, 10 Sim. R. 444, 16 Eng. Ch. R. 445, the case of Lechmere v. Brasier was not considered as making a judicial sale an exception to the general rule; but it being discovered after the sale of an estafe under a decree, and after the confirmation of the report of sale, that a small portion of the estate was the property of another person, the court would not discharge the purchaser from his contract, without giving the vendor an opportunity of acquiring a title to that portion. In the case of Crawle v. Meem, 8 Gratt. 496, land in which infants were interested was sold under a decree prematurely made, and the report of sale was confirmed: it was held that although *it was competent for the court, the proceedings being interlocutory, to set them aside in the further progress of the cause, upon its appearing that they were prejudicial to the interests of the infants; yet, on the other hand, it appearing to be beneficial to them, there could be no good reason for disturbing them in behalf of any other party. This court was of opinion that the sale should be established or set aside, according as the Circuit court should consider it to be advantageous to the infant heirs. I can see little or no difference, in principle, between that case and this. There, as here, infants were interested in the“land decreed to be sold, and the report of sale was confirmed before any objection was made by the purchaser. There, as here, the purchaser contended that he was not bound because the infants were not bound. But the court in that case held, as I think it ought in this, that as the ground of objection to the title might be removed by a further decree of the court, the sale should be established and the purchaser compelled to complete his purchase if the interest of the infants required it.

Whatever defect or irregularity there may have.been in the proceedings in this case, it is not pretended that there was any fraud or unfairness on the part of those by whom or for whose benefit they were conducted. They bona fide believed that the proceedings were all right and. legal, and that a good title could and would be conveyed to the purchaser. This gives them a strong claim on the consideration of the court in the exercise of its discretion to compel the purchaser to complete his purchase. On the other hand, the purchaser, while it cannot be said that he has been guilty of any bad faith or unfairness, has certainly no just claim on the court to interpose in his favor and discharge him from his purchase. He did not file his ^petition until after the sale had been confirmed, the possession of the land delivered to him, the greater ¿>art of the purchase money paid by him, the amount so paid applied to the discharge of the incumbrance, and otherwise according to the direction of the court, and the land released from the lien of the deed of trust; nor until nine months after the sale. The excuse assigned in his petition for not filing it sooner, was that he had no knowledge of the proceedings in the cause until within a few days past. Though he admits that when he saw the advertisement of the sale in the newspapers and spoke of becoming a bidder, he heard it suggested that the proceedings had in the> case were perhaps not exactly regular, but says the suggestion made no impression on his mind; and supposing that all things had been rightly done in the cause, he attended the sale and became a bidder. Notwithstanding the admonition he had thus early received, he took no step, either before or after the sale, until a few days before the filing of his petition, to inform himself of the correctness of the proceedings, or to obtain the advice of counsel in regard to the title; but chose to rely on a conversation, which he says he sought and had before he paid one cent of the money, with one of the commissioners, who was the lawyer that conducted all the proceedings; and who, he says, in that conversation assured him that all things had been rightly' done in the suit, and that a good title would therein be made to him. This assurance being fairly given, it is not perceived in what manner it can help the purchaser. Under these circumstances, he had no right to demand an absolute discharge from his purchase, even if the title was defective; but the utmost extent of the belief to which he was entitled was to be discharged if the defect could not, or in a reasonable time should not, be cured. The defect, if any, *was curable; and in a reasonable time could have been cured, by a decree in one or both of the suits brought for that purpose, as soon as convenient after the petition was filed. There was no unnecessary delay in the prosecution of those suits, which was not occasioned by the petitioner himself. He was the only reluctant party; against him alone the suits had to be regularly matured. All the other parties were anxious to confirm the sale. And at the first term after a guardian was appointed to the infants, his suit might have been matured, and a decree of confirmation made therein; Even as it was, both suits were soon matured for a decree, and on the 9th of March 1853 all three of the causes came on to be heard together, when the purchaser was discharged from his purchase. Instead of that, the court should have confirmed the sale, and held him to his purchase. Eor it then clearly appeared from the proceedings in each and all of the suits, that the interest of all parties concerned required a confirmation of the sale, except perhaps the purchaser, who certainly had no right to complain of it. In a suit brought by a guardian for the sale of the real estate of his ward, under chap. 128 of the Code, p. 535, the court may' confirm a sale already made, if the interest of the ward require it. Garland v. Loving, 1 Rand. 396. In that case it was held to be competent for the court to confirm a sale already made, provided the purchaser was willing to abide thereby'. And it was argued by the counsel for the appellee in this case, that the court cannot confirm such a sale without the consent of the purchaser. Even if such consent be necessary in ordinary cases, (as to which I express no opinion,) it certainly cannot be in this case. All that the purchaser here can require is a good title; and he cannot prevent the court from giving it to him by withholding his consent to a decree of confirmation. *See also Hughes & wife v. Johnston, 12 Gratt. 479.

I am therefore of opinion, that so much of the decree appealed from as discharged the appellee from his purchase, and directed the purchase money paid by him, or any part of it, to be refunded, and the land purchased by him to be resold,is erroneous, and ought to be reversed; that the sale made to him ought to be established and confirmed, and he compelled to complete his purchase; and that the cause should be remanded, to be further proceeded in according to the principles before expressed.

LEE and SAMUELS, Js., concurred in the opinion of Moncure, J.

Decree reversed.  