
    *Wilson & Wife, &c., v. Smith.
    August Term, 1872,
    Staunton.
    1. Decrees Valid and Conclusive until Reversed—Fraud. —A decree of a court of competent jurisdiction, in a suit between proper parties, is valid and conclusive until reversed on some proper proceeding in the same suit and the same court, or on appeal to an Appellate court, unless there be some sufficient ground of fraud or surprise to entitle the injured party to relief in some other suit.
    2. Partition of Land—How Made.—in a suit for parti- . tion of land by joint-tenants, tenants in common or parceners, whether partition can be conveniently made in kind or not, and whether the interests of those who are entitled to the subject ' or its proceeds will be promoted by a sale of the entire subject or not, are questions for the court in which the suit is pending to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise.
    3. Same—Sale Confirmed by Court Cannot Be Impeached Collaterally.—in such a case, a sale made pending the suit by agreement of the parties, in person or by counsel, which sale is after-wards approved and confirmed by the court, is as valid as if made under a previous decree of the court in the.suit, and can no more be impeached collaterally than if so made.
    
      4. Sáme—Revival of Suit—By Motion.—In a suit by W against L for partition of land, before any decree in the cause W dies, leaving a widow and infant child. The suit may be revived in their name; and neither a bill nor a scire facias is necessary, but it may be revived upon their motion without notice. Code, ch. 178, § i, p. 718.
    
      5. Same—Same—Immaterial Errors.—The order of revival suggests the death of W and that the suit he revived and proceeded in, in the name of “J and L. administrators with the will annexed,-Wilson, infant son and sole heir, and-Wilson, widow and devisee of said John W. Wilson, deceased.” Though the administrators with the will annexed were not necessary, yet it does not harm; and though the Christian names of the infant child and the widow are omitted, they are sufficiently described to identify them.
    
      6. 5ame—Same—In Name of Next Friend of Infant.—It would have been out of place to have revived the suit in the name of a next friend for the infant; and an order authorizing some person to prosecute the suit for the infant might as well *have been made in a subsequent order as in the order reviving the suit; and in an original suit to set aside the proceedings in the partition suit, quebré if it may not be presumed to have been made.
    7. Same—Same— Same—Quaere.—Even if there was not a formal assignment of a next friend by an order of a court in the partition suit, it may well be questioned whether such a mere informality would of itself avoid the proceedings in the suit, and the sale made under them; the infant being joined with his mother and the administrators, qiuvre if they may not be considered, in the absence of evidence to the contrary, and for the purpose of giving effect to the proceedings, as his next friend.
    8. Same—Same—Irregularities Cannot Be Objected to in Independent Suit/-—But if there were any irregularities in any of these respects, objection on that account could only be made, if at all, in that suit, or on appeal from the decree therein, and such objection cannot be made in an independent suit.
    9. Same—Same—Counsel.—In a suit for partition of real estate by W against Tj. W dies, and the suit is revived in the name of his widow and infant son. The counsel employed by W will be presumed, in the absence of evidence to the contrary, to be con tinned a.s counsel in the cause; and a decree for a sale of the property entered npon the consent of the counsel is a valid decree, and the sale under the decree will be sustained.
    John W. Wilson and James M. Gilley being- jointly entitled to a valuable property in the county of Augusta, known as the “Greenville Mills,” a suit was brought for partition thereof, by the said Wilson against the said Ivilly, in the Circuit court of said county. Pending the suit, and it seems, before any decree was made therein, John W. Wilson died, leaving a widow, Margaret 3$. Wilson, and an only child, John W. Wilson, who was his heir q,t law; and also leaving a will, whereby he gave to his wife one-third of his estate, and appointed Alexander Brownlee, the father of his wife, his executor. The will was admitted to probate on the 26th of May 1862; and on the same day the executor named in the will haying- refused to qualify, John Newton and John J. Darew were appointed and qualified as administrators of the said testator with his said will annexed. On the 15th day of June 1863, the partition suit aforesaid was ^revived in the names of the administrators, heir, and widow of the plaintiff, John W. Wilson, by an order made therein in these words: ‘ ‘John W. Wilson, the plaintiff in this cause, having departed this life, it is ordered that this suit be revived and proceeded in, in the name of John Newton and John J. Darew, executors of John W. Wilson, deceased, and administrators with the will annexed,-Wilson, infant son and sole heir of John Wilson, deceased, and-Wilson, widow and devisee of said John W. Wilson, deceased.” On the 14th day of July 1863, an agreement was signed by the counsel of the parties in these words:
    “It is agreed by the undersigned,_ the counsel of the parties in the suit of Wilson v. I/illey, respecting the partition of the Greenville Mills, pending in the Circuit court of Augusta county, that the mill and lot attached may be sold as promptly as practicable on the following terms: one-third, of the purchase money to be paid in hand, and the balance in one and two years,, with interest from the day of sale: provided, that the purchaser may pay the whole-amount of purchase money so soon as the sale is ratified* by the Circuit court of Augusta county. The sale to be subject to the ratification of said court at its next term; and possession, if given by the parties authorized to make the sale, to be surrendered at once if the court does not ratify the sale. John Newton is authorized, as commissioner, to make the sale, upon the usual notice of four weeks, and in the usual manner, at half commissions. Given under our hands this 14th day of July 1863.
    Thomas J. Michie,
    Harmon & Bell,
    Counsel for Plaintiff.
    Sheffey & Bumgardner,
    Counsel for Defendant. On the 14th day of August 1863, the property was accordingly *sold by said Newton, and William P. Smith became the purchaser, at the price of $18,525. A report of the sale having been made to the court, the cause came on to be further heard on the 19th day of November 1863, on the papers formerly read and the said report ; and there being no exception to the said report, it was decreed that the same, and the sale made as stated therein, be ratified and confirmed; and it being suggested that the .purchaser desired to pay up the whole amount of the purchase money, and that the parties to the suit desired to borrow the same, it was further decreed that the money should be paid into the Central Bank of Virginia as general receiver of the court, to the credit of the suit; and that the parties, plaintiffs and defendants, should be respectively allowed to borrow such part of said fund, not exceeding one-half thereof, as they may desire, upon executing bond with sufficient security therefor; which bonds were to be held by the general receiver as part of the fund to the credit of the suit. Upon payment in full of the balance of the purchase money due by Smith, it was further decreed that the commissioner, Newton, should convey to him the property.
    It appears that accordingly the purchase money was paid in full to the said bank- as general receiver aforesaid, and that a conveyance was made to the purchaser. It does not certainly appear what afterwards became of the money, though it was probably lost by the failure of the said bank.
    Margaret E. Wilson, widow of the said testator, John W. Wilson, having intermarried with Joseph Wilson, the said Joseph Wilson and Margaret E., his wife, and John W. Wilson, only child and heir at law of the said testator, and an infant suing by the said Joseph Wilson his next friend, filed their original bill in the said Circuit court of Augusta county, on the 15th day of August 1867, • against the said William F. Smith; in which bill *the complainants, after setting out the facts aforesaid, or some of them and other facts, charge, among other things, that no part of the purchase money was borrowed or received by said Margaret E- as guardian of her said infant child; that the bank has failed, and the whole of the money has been lost, as complainants have been informed; that said Margaret E- has never been assigned dower in said property, nor has- she ever received anything in lieu of her dower, nor has she been called upon or in any way notified to make an election whether she would take her dower in kind or in currency ; that the said order made to revive the suit aforesaid did not bring the said Mlargaret E- and her child before the court; that it does not so name them as to make them parties to the suit, and they are no where named in the proceedings; that no amended or supplemental bill, or bill of revivor was filed, nor any next friend or guardian ad litem of the infant appointed, nor any of the requirements of the statute authorizing the sale of the lands of infants complied with; “that the said Margaret E-never employed counsel to attend to her interest in said property—neither of the counsel who consented to a sale of said property had been employed by her, nor were they or either of them authorized to speak’for her,” &c. Under these circumstances the complainants say, they are advised that the decree aforesaid, confirming the sale of said property to said Smith, is a nullity so far as it affects the rights of said Margaret E- and John W., and they, therefore, pray that the said decree be annulled, the conveyance to the purchaser, if executed, set aside, and the property restored to said Margaret E. and John W., and for general relief.
    In June 1868, the said Smith filed his demurrer and answer to the bill. In his answer he said, that no impropriety was alleged against him, and that he stood upon the legal validity of the proceedings und^r which he bought and then- held the property; that. he was advised *that on the death of John W. Wilson, the suit was properly revived against his heir, devisee and personal representatives,-under chapter 173, ? 4, of the Code, page 717. “The omission of the Christian names of the widow and the heir was, no doubt, accidental, and as they were otherwise clearly identified, it was not material. No process is necessary on such a revival. ’ ’ That respondent was informed and believed that the lawyers consenting to the sale were, in fact, the counsel of all the parties to the suit, and that, in addition to their authority as counsel, they acted upon the express consent and authority of the female plaintiff and of the .guardian of the infant, in the agreement for the sale. That he was advised that the suit having been brought for partition, it was within the power of the court, under the proceedings in the cause or a proper state of proofs, to decree a sale of the whole property, as a means of making partition under chapter 124, $ 3 of the Code, page 581. That it was competent for counsel to admit of record any fact provable under the pleadings, and to consent to any decree which it was within the power of the court to make; and that the agreement for a sale subject to the ratification of the court, and which was, in fact, afterwards ratified by the court, with the approval of all the counsel, was a matter clearly within the authority of counsel, and binding upon all the parties. That he was also advised, that as the female and infant plaintiffs here were certainly parties in said suit, if any error has been committed therein, it must be corrected by an appeal, and not by a new suit; and that a purchaser under a decree in that cause, respondent was protected as against all the parties therein. It is also stated in the answer, that the mills were burned by the Federal army in 1864.
    Sundry depositions were taken and filed in the cause. On the side of the defendant, Smith, was the deposition of John Newton, the commissioner who made the sale, and on the side of the plaintiffs were the depositions of ‘‘'Alexander Brownlee and Thomas A. Brownlee, the father and brother of the plaintiff, Margaret E-Wilson, and the said plaintiff herself.
    John Newton, among other things, testified as follows: “I was requested by the counsel on both sides of the case of ‘Wilson v. Lilley, &c., ’ to see Mrs. Wilson and ascertain from her whether she would consent to the sale of the property, the ‘Greenville Mills,’ before the decision of the suit. I saw her upon the subject, and told her of the arrangement which was proposed. She seemed to think that it would be better that the property should be sold before the decision of the suit; that the property was in a bad fix, and was doing nobody any good. She said she preferred that it should be so sold. I then notified the said counsel of Mrs. Wilson’s wishes on the subject, and my recollection is, that the agreement of counsel filed in said cause for a sale of the property was then drawn up and signed by said counsel. I also had several conversations with Alexander Brownlee, guardian of John W. Wilson, on the subject, and he seemed to be satisfied as to the sale being made, and he told me that he would see Mr. Thomas j. Michie, his counsel, on the subject, or had seen him. Mr. Brownlee, as guardian, was present at the sale and made no objection, but seemed to be satisfied. I never heard of anj- dissatisfaction of any of these parties until the filing of the bill in this cause, although I saw Mrs. Wilson very frequently after the sale.” He also proved that the property (meaning the mill and buildings) was burned by the j'ankees after the purchase by Smith.
    Alexander Brownlee, among other things, testified that he became guardian of John W. Wilson at the July court, 1863, (which is about the date of the agreement aforesaid) ; that after becoming guardian he never gave his consent to Newton, or anybody else, to sell the Greenville Mills for Confederate money. That Thomas J. Michie was counsel for him as guardian of John W.
    * Wilson in the case of “Wilson v. Lilley, &c.’’ That witness told them “that if they thought it was-best to sell the property to do so.” That his acquiescence to the sale given to his counsel was before witness became guardian as aforesaid ; thinks it was on the day he qualified that he consulted with Mr. Michie as his counsel as guardian. That he went to Mr. Michie because he had been the attorney for John W. Wilson in the suit of “Wilson v. Billey, &c.” That he, witness, never emploj'ed him after witness qualified as guardian of the infant.
    Thomas A. Brownlee testified that Mr. Newton came to consult his sister, Mrs. Wilson, concerning selling the mills. She told him she did not need the money; that she had Confederate money enough; and he told her that she had better sell it; that the yankees would probably destroy it, and she would get nothing for it. She stated that she was at a loss to know what to do; but for him to do what he thought best. The above conversation took place at the residence of his father, Alexander Brownlee, a short time before the sale.
    Mrs. Margaret B. Wilson, one of the plaintiffs, among other things, testified: “Mr. John Newton talked to me several times upon the subject (the sale of the Greenville Mills), and wished me to consent to the sale of that property, but I always objected. I never wanted it sold. He told me I had better have it sold, for the yankees will come and burn it down, and it will do you and no one else any good. He told me that more than once, I am certain.” She did not employ counsel in regard to the mill property. In answer to a question propounded to her on cross-examination by the defendant, Smith, viz: “Did you not say to Mr. Newton -that he knew better than you did, and if he thought it best to have it sold to do so?” She said: “I told him he would have to do what he thought best. ’ ’ In answer to a question then put to her by her husband, Joseph Wilson, she *said she told Mr. Newton more than once that she had as much Confederate money as she wanted, and that she would sooner have the property.
    On the 12th day of November 1870, the cause came on for final hearing, when the court, overruling the demurrer pro forma, and being of opinion that no cause appeared for impeaching or setting aside the sale made to the defendant on the 14th day of August 1863, and confirmed by the court on the 19th day of November 1863, decreed that the bill be dismissed with costs.
    From the said decree the plaintiffs applied for an appeal to this court, which was accordingly allowed.
    Fultz, for the appellants.
    Baldwin & Cochran, for the appellee.
    
      
      Irregularities Cannot Be Objected to in Independent Suit.—The principal case was cited and approved a.s to this point in Fox v. Cottage B. F. Ass’n, 81 Va. 682.
    
    
      
      Counsel.—The principal case was approved in Marrow v. Brinkley, 85 Va. 62, 6 S. E. Rep. 605.
    
   MONCU"RB, P.

delivered the opinion of the court.

The object of this suit is to annul a decree in another suit, the sale made under or confirmed by it and any conveyance which may have been executed in pursuance of said decree.

A decree of a court of competent jurisdiction, in a suit between proper parties, is valid and conclusive until reversed on some proper proceeding in the same suit and the same court, or on appeal to an appellate court; unless there be some sufficient ground of fraud or surprise to entitle the injured party to relief in some other suit.

If the decree in controversy in this case be void, as contended by the appellants, where was the difficulty in their obtaining relief by an action at law? If they had an adequate remedy at law, as it seems they had if their pretensions be well founded, then they are entitled to no relief in equity.

But had not the court which rendered the decree competent jurisdiction to make it, and was it not rendered in a suit between proper parties?

First. Had not the court jurisdiction to make such a decree?

*The decree was rendered by the Circuit court of Augusta county in a suit instituted in said court for the partition of the “Greenville mills,” situated in said county. The suit was founded on chapter 124 of the Code, page 581, concerning “partitions and coterminous owners. ’ ’ By the 1st section of that chapter, “tenants in common, joint-tenants and coparceners” are “compellable to make partition”; and “the court of equity of the county or corporation wherein the estate or any part thereof may be,” are expressly invested with jurisdiction in such cases. The parties to the said suit came within the categories enumerated in the section. They were tenants in common or joint-tenants. And the subject for partition was situate in the county where the court was in which the suit was instituted.

By the 3d section of the chapter, it is provided that when partition cannot be conveniently. made, if the interests of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, the court may order such sale; and may so order, 1 ‘notwithstanding any of those entitled may be an infant, insane person or married woman”; and may “make distribution of the proceeds of sale according to the respective rights of those entitled. ’ ’ Whether partition can be conveniently made in kind or not, and whether the interests of those wh’o are entitled to the subject or its proceeds will be promoted by a sale of the entire subject or not, are questions for the court in which the suit for partition may be brought to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise. That a sale is made pending the suit, by agreement of the parties in person or by counsel, which sale is afterwards approved and confirmed by the court, makes no difference. Such a sale is as valid as if made under a previous decree of the court in the suit, and can no more be impeached collaterally than if so made. It is in fact a sale made *under a decree. Then-the court had jurisdiction to make such a decree. And now,

Secondly. Was not the decree rendered in a suit between proper parties; that is, all the proper parties?

The suit was brought by one of the two sole proprietors of the property, and both of them were sui juris. There could have been no difficulty then on the score of parties. But pending the suit, and it seems before any decree or order had been made therein, the plaintiff, John W. Wilson, died, having been killed in battle, and it then became necessary to revive the suit against the real representatives of the plaintiff, who were his widow and devisee, Margaret E. Wilson, and his infant child and'sole heir at law, John W. Wilson. Those representatives had an unquestionable right to revive the suit in their names, and prosecute it to the same conclusion to which it might have been prosecuted by the original plaintiff, to whose rights they succeeded ; and the only question is whether it was so revived. The appellants insist that it ought to have been revived by a supplemental or amended bill, or bill of revivor; or at least by a scire facias. But the Code, chapter 173, § 4, page 718, provides that where the party dying is plaintiff, the person or persons for whom such scire facias might be sued out, may, without notice or scire facias, move that the suit proceed in his or their name, and an order shall be made accordingly. In this case, on the 15th day of June 1863, the death of the plaintiff, John W. Wilson, was suggested, and an order was made that the suit be revived and proceeded in in the name of “John Newton and John J. Rarew, administrators with the will annexed, ’’ ‘ ‘-Wilson, infant son and sole heir,” “and-Wilson, widow and devisee of said John W. Wilson, deceased.” Was not this a sufficient revival of the suit in the name of the real representatives of the plaintiff according to the aforesaid provision of the Code? We think it was. The administrators with the will annexed *of John W. Wilson were unnecessary parties; but the revival in their name can do no harm. The infant son and widow of the plaintiff were his sole rea] representatives, and the suit was revived in their names: utile per inutile nor vitiatur. That the Christian names of the infant son and widow are not inserted in the order, can make no difference. Enough is inserted in it to describe and identify the parties beyond all possibility of mistake. That no next friend of the infant is named in the order can make no difference. It would have been out of place to have revived the suit in the name of a next friend of the infant, and was more appropriate to allow some person as next friend to prosecute the suit for the infant. That might as well have been done in some subsequent order as in the order reviving the suit; and we may well presume that it was accordingly so done. There is nothing in the record of this case to show that it was not so done. A copy of the record of the partition suit is not made a part of the record in this suit. Even if there was not a formal assignment of a next friend by an order of the court in that suit, it may well be questioned whether such a mere informality would of itself avoid the proceedings in the suit, and the- sale made under them. The infant came into court and into the cause with his mother and the personal representatives of his father; and they may well be considered, in the absence of evidence to the contrary, and for the purpose of giving effect to the proceedings, as his next friends. Alexander Brownlee, the grandfather of the infant, qualified as his guardian on or about the same day on which the agreement to make the sale, subject to the decree of the court, was signed by the counsel. He may have acted as next friend of the infant in whose name the suit had just one month before been revived. A formal order assigning a next friend to prosecute a suit for an infant is very unusual in our practice. Any person may bring a suit in the name of an infant as its *next friend, and ordinarily the court will recognize him as such next friend, and take cognizance of the case as properly brought and prosecuted. If it appear to the court that the suit is not for the benefit of the infant, or that the person named as next friend is not a suitable person for the purpose, the court may dismiss the su5t without prejudice, or assign another person to prosecute it as next friend of the infant. And the court may, if it think fit, direct an enquiry by a commissioner to ascertain whether the suit be for the benefit of the infant, or whether tlie person prosecuting it as next friend be a fit person for that purpose. It does not expressly appear from the order reviving the suit on whose motion it was made. The presumption, however, is that it was made on the motion of the parties in whose name the suit was revived, or at least of all of them except the infant, who was of too tender years, to make it in proper person. It was no doubt made by the adult parties for themselves and as next friend of the infant. They alone had the right to make it. The suit could be revived only in the names of the real representatives, who were the widow and devisee and the infant child and sole heir.

But if' there were any irregularities in any of the respects aforesaid, (and whether there were or not, is a question upon which we mean to express no opinion in this case), objection on that account could only be made, if at all, in that suit, or on appeal from the decree therein, and not by an independent suit.

We are therefore of opinion that the decree (in the partition suit) was rendered in a suit between proper parties.

It now only remains to be considered, whether there was any sufficient ground of fraud or surprise to entitle the appellants to relief in this suit?

There was certainly no surprise in the case either proved or alleged, nor was there any fraud. The only ^ground on which any pretence of fraud can be based, is the allegation in the bill, that “the said Margaret E). never employed counsel to attend to her interest in said property: neither of the counsel who consented to a sale of said property, had been employed by her; nor were they or either of them authorized to speak for her. If they undertook to consent to a sale of said property, it was without the shadow of authority from said Margaret E). or any person authorized to act for her child. ’ ’

It is not necessary that the counsel who consented to the sale of said property in behalf of the plaintiffs should have been employed by the said Margaret E). or her child, or his guardian, provided that the said counsel were employed by John W. Wilson, the original plaintiff in the partition suit, who was the husband of said Margaret E). and father of her child, and it is not pretended that they were not so employed. Being so employed, and he, John W. Wilson, having died pending the suit, which was afterwards revived in the name of his widow and child as his devisee and heir, the authority of the said counsel to act for the plaintiffs in the suit after it was revived must be presumed to exist, in the absence of evidence to show that it was determined. There is no such evidence in the case. On the contrary, the evidence shows that after the death of the original plaintiff in the partition suit, John W. Wilson, his widow and the guardian of his child recognized the authority of his counsel to continue to act for them in the suit, and consented to the sale of the property. John Newton, the commissioner who made the sale, expressly proves that he was requested by the counsel on both sides of the ( partition suit to see Mrs. Wilson, the widow, and ascertain from her whether she would consent to the sale of the property; that he accordingly saw her, and she said she preferred that it should be sold; that he had several conversations on the subject with Alexander Brownlee, her father and ^guardian of her child, and he seemed to be satisfied as to the sale being made, and told witness he would see Mr. Thomas J. Michie, his counsel, on the subject, or had seen him; that Mr. Brown-lee, as guardian, was present at the sale and made no objection, but seemed to be satisfied; that witness never heard of any dissatisfaction of any of these parties until the filing of the bill in this cause, although he saw Mrs. Wilson very frequently after the sale. This evidence, if it be true, leaves no room for doubt as to the authority of the counsel for the plaintiffs in the partition suit to act for them. It is not contradicted, in any material respect, by the evidence on the other side. That evidence consists of the depositions of the father and brother of the female plaintiff, and of that plaintiff herself, her father being the guardian of her child. The feelings of these witnesses were all, naturally, on the side of the plaintiffs; and yet, according to the testimony of them all, the widow and guardian of the infant child of John W. Wilson, the original plaintiff in the partition suit, in effect, assented to the sale. And this is the material, if not the only material, fact to which the testimony relates. To be sure, the witnesses for the plaintiffs testify that the widow was at first opposed to a sale—said she had Confederate money enough, and that she would sooner have the property; and that John Newton, the commissioner, wished her to consent to the sale, and told her she had better have it sold, for the yankees would come and burn it down, and it would do her and no one else any good. But they further testify that the widow and guardian both yielded to the opinion and advice of said Newton and assented to the sale, if thought best by him or the counsel for the plaintiffs in the partition suit. Now it is not pretended that Newton was influenced by improper motives in expressing the opinion or giving the advice aforesaid. They were, no doubt, 'x'honestly expressed and given, and they were such as would doubtless have been expressed and given by almost every person of good judgment, under the circumstances. The property consisted of mills, which contributed to the sustenance of the Confederate army, and were in the line of the march of the enemy. It was, therefore, in imminent danger of being burned down by them. Newton properly assigned that danger as a reason for selling the property. It was accordingly sold for $18,525 in Confederate money, which was certainly better, according to the judgment of most discreet men at that time, than to keep it under such Circumstances, even though it might have been worth, under different circumstances, six or seven thousand dollars in good money. The sale was made on the 14th of August 1863. The mills were, in fact, burned down by the Federal army in 1864, in confirmation and verification of the opinion expressed by Newton as aforesaid. There was then no ground of fraud on the part of Newton, or any of the parties to the partition suit, on which the decree in that suit can be impeached even as to them. Much less is there any such ground in regard to the purchaser at the sale, against whom, as he truly says in his answer, “no impropriety is alleged,” and who “stands upon the legal validity of the proceedings under which he bought and now holds the property.” He was a bona fide purchaser for value and without notice,'under a decree of a court, of competent jurisdiction, in a suit between proper parties; has paid up the full amount of the purchase money, and has been duly, invested with the title by a deed regularly executed and recorded, and he is, therefore, entitled to hold the property against the claim of the plaintiff in this suit. \

Of course what we have said must be considered as referring only to the question of the right of the plaintiffs to relief in this suit, and not to . any right they may *have to relief by any proceeding in the partition suit, or by an appeal from the decree therein. The latter question does not arise and cannot be decided in this case, and the record of the partition suit, upon which only it can arise, is not before us.

We think there is no error in the decree, and that it ought to be affirmed.

Decree affirmed.  