
    *Taylor v. Cooper.
    July, 1839,
    Lewisburg.
    (Absent Brooke, J.)
    Judicial Sales — Confirmation—Change in Value of Property. — Where a sale is made under a decree, if, before it is confirmed, the value of the property be materially increased or diminished, the purchaser, under the english practice, has neither the benefit in the one case, nor the burthen in the other : per Tucker, P.
    Same — Same—Retroaction.—After the sale is confirmed. the confirmation relates bach to the sale, and the purchaser is entitled to every thing he would have been entitled to, had the confirmation and conveyance been contemporaneous with the sale.
    Same — Same—Same—Case at Bar. — On the 30th of October 1834. a decree was made for the sale of a tract of land, on a credit of six, twelve and eighteen months. Before the decree, there had been a contract to rent the land, and pursuant to that contract, a lease was made for a year, commencing the 25th of December 1834 and ending the 25th of December 1835. During this year, to wit, on the 10th of January 1835, sale was made under the decree. That sale being confirmed and a conveyance executed to the purchaser, Held, the purchaser must be considered complete owner from the date of the sale, and entitled to the rent which became due afterwards.
    Same — Same—Same—Assumpsit.—In such case, if the rent has been paid to the representative of the former owner, the purchaser may recover it from him by an action of assumpsit for money had and received.
    Assumpsit in the circuit court of Montgomery county, by Jacob Cooper against John M’C. Taylor administrator of the estate of Peter Dyerle deceased. The plaintiff declared for money had and received by the defendant to the use of the plaintiff. The defendant pleaded the general issue.
    At the trial, the jury returned a special verdict, which found the following facts: 1. A decree made the 30th of October 1834, for the sale, on a credit of six, twelve and eighteen months, of a tract of land whereon Peter Dyerle resided at the time of his death. *2. That on the 10th of January 183S, sale was made under the decree, and Cooper, the plaintiff, purchased the land for 3270 dollars, and gave bonds with sureties for the purchase money, the whole of which purchase money has since been paid. 3. That at the time of the sale, the land was in the possession of one John G. Burgess, to whom it had been rented by the defendant Taylor (to whom, as sheriff of Montgomery, the estate of Dyerle had been committed) for a year commencing the 25th of December 1834 and ending the 25th of December 1835. 4. That although the lease commenced after the decree for the sale, yet the contract was made with Burgess before the decree. 5. That the rent of Burgess was 210 dollars, and it has been paid by him to Taylor as administrator of Dyerle, although Cooper claimed it and gave notice to Burgess not to pay it. 6. That the sale was confirmed by a subsequent decree, and an order made directing a conveyance to Cooper, which was executed accordingly, and Cooper took possession of the land at the end of the year for which Burgess rented.
    The circuit court being of opinion, upon the facts found, that the law was for the plaintiff, and the jury having, in that event, assessed the damages at 210 dollars with interest from the 25th of December 1835, judgment was entered accordingly.
    To this judgment a supersedeas was allowed.
    The attorney general and Preston, for plaintiff in error.
    Edward Johnson, for defendant in error.
    
      
      Judicial Sales — Confirmation—Discretion of Court.— Whether a sale will be confirmed is a question not of arbitrary, but of sound legal discretion in view of all the circumstances to be exercised in the interests of fairness, prudence, and with a just regard to the rights of all concerned. For this proposition the principal case is cited in Brock v. Rice, 27 Gratt. 816; Carr v. Carr, 88 Va. 739, 14 S. E. Rep. 368; Todd v. Gallego Mills Mfg. Co., 84 Va. 590, 5 S. E. Rep. 676; Berlin v. Melhorn, 75 Va. 642; Terry v. Coles, 80 Va. 703.
      See, in accord, Roudabush v. Miller, 32 Gratt. 454; Daniel v. Leitch, 13 Gratt. 195; Hansucker v. Walker, 76 Va. 753; Coles v. Coles, 83 Va. 525, 5 S. E. Rep. 673; Moore v. Triplett, 96 Va. 603, 32 S. E. Rep. 50; Hable v. Mitchell, 9 W. Va. 492; Marling v. Robrecht, 13 W. Va. 440; Hilleary v. Thompson, 11 W. Va. 113; Hartley v. Roffe, 12 W. Va. 401.
    
    
      
      Same — Same—Retroaction.—When a judicialsale is confirmed by the court such confirmation relates to and vests the title in the purchaser from the date 6f sale, thus entitling him to the intermediate rents and profits. In support of this proposition the principal case is cited in Donahue v. Fackler, 21 W. Va. 129; Lathrop v. Kelson, Fed. Cas. No. 8,111, 14 Fed. Cas. p. 1184; Childs v. Hurd, 25 W. Va. 535; Stout v. Philippi Mfg., etc., Co., 41 W. Va. 350, 23 S. E. Rep. 575; Hyman v. Smith, 13 W. Va. 768; Kable v. Mitchell, 9 W. Va. 514; Cale v. Shaw, 33 W. Va. 305. 10 S. E. Rep. 639. See Evans v. Spurgin, 6 Gratt. 107, and note.
      
      Same — Same—Change in Value of Property before Confirmation.-- 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 sell 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. Daniel v. Leitch, 13 Gratt. 211. citing the principal case; Heywood v. Covington, 4 Leigh 373.
      The principal case and Hyman v. Smith, 13 W. Va. 744, are cited in Stout v. Philippi Mfg., etc., Co., 41 W. Va. 350, 23 S. E. Rep. 575, for the proposition that, if, after sale, and before confirmation, the property is destroyed or inj ured, the purchaser will not be compelled to comply with his purchase, if without fault, as confirmation relates back to the moment of purchase, and (he purchaser is entitled to it in its then condition.
      Same — When Absolute — Confirmation.—The principal case is cited in Childs v. Hurd, 25 W. Va. 533, for the proposition that a sale made by a commissioner under a decree in a court of equity is not an absolute sale, and does not become such, until it is confirmed by the court, and until this has been done, the purchaser has no fixed interest in the subject of the sale. The principal case is further cited in support of this proposition in Cocke v. Gilpin, 1 Rob. 39; Kable v. Mitchell, 9 W. Va. 515. See foot-note to Cocke v. Gilpin, 1 Rob. 39; Hudgins v. Marchant, 28 Gratt. 177.
      The three principles stated by Ttjckek, P., in the principal case are quoted in Kable v. Mitchell, 9 W. Va. 513; Hyman v. Smith, 13 W. Va. 767.
      Por a full discussion on the subject of “Judicial Sales,” see monographic note on that subject appended to walker v. Page, 21 Gratt. 636.
    
    
      
      Assumpsit. — See monographic note on “Assump-sit” appended to Kennaird v. Jones, 9 Gratt. 183.
    
   TUCKER, P.

I have had not the slightest doubt of the right of Cooper the purchaser to the rent in question. The principles of the. court, according to the english practice, I take to be clearly these :

1. Where there is a sale by the master, and the property appreciates by the accidental falling in of lives *or by other means, the court will only confirm the sale upon the terms of the purchaser’s making compensation. Davy v. Barber, 2 Atk. 490; Blount v. Blount, 3 Atk. 638. And in doing this, it but acts within the scope of its rights and powers ; for the sale is not conclusive until confirmed, and justice to the owner of the estate demands that where there has been a material appreciation before confirmation, a resale should be directed unless the purchaser will make compensation.

2. Where, after the sale and before confirmation, (as in the cases of Ex parte Minor, 11 Ves. 559, and Heywood v. Covington’s heirs, 4 Leigh 373,) the property is destroyed or materially injured by flood or fire, the loss must fall on the vendor ; for as, in the case of appreciation, the vendee will 'be charged with compensation, so, in the case of depreciation by destruction of part of the estate, he has a fair claim to a deduction. Until the sale is confirmed, he is considered in England as having no’fixed interest in the subject of purchase. 11 Ves. 559. Before it is confirmed, he is always liable there to have the biddings opened, and therefore non con-stat that he is a purchaser. Anonymous, 2 Ves. jun. 336. In case of loss he is therefore allowed a deduction. The practice with us has gradually departed from that of the eng-lish courts in some respects which it is not necessary here to set forth.

3. But, thirdly, where the sale is confirmed, that is, where both contracting parties (the purchaser and the court) concur in ratifying the inchoate purchase, the confirmation relates back to the sale, and the purchaser is entitled to every thing he would have been entitled to if the confirmation and conveyance of the title had been contemporaneous with the sale. Anson v. Towgood, 1 Jac. & Walk. 617. In this manner I think the several authorities are easily reconciled ; and if this be so in lingland, I think it may be safely affirmed to be yet more unquestionable under our practice.

•Taking' these principles as fixed, the present case will be found to come within the last. In this case Cooper purchased under a decree giving a credit of six, twelve and eighteen months. His bonds are given payable in six, twelve and eighteen months from the day of sale. If he does not receive this rent, he will have no enjoyment of (he estate until nearly twelve months after the sale, so that he will have to pay his first bond several months in advance of his’ perception of the profits, and his twelve months bond will be a cash payment. This is neither just nor equal. The report having been confirmed, he must be considered complete owner from the date of the sale, and of course entitled to the rent becoming due after it.

I have had much doubt, however, whether the remedy of Cooper was in the court of chancery, or at law. But upon much reflection, I think the action at law is maintainable. Before confirmation of the report, indeed, and while the cause is yet pending in the court of chancery, I am of opinion that to that tribunal alone can the purchaser resort for the adjustment of his rights and the enforcement of his claim. Such was the case of Crews v. Pendleton &c., 1 Leigh 297, and Heywood v. Covington’s heirs, 4 Leigh 373. But where the chancery cause is ended, or where at least, by the confirmation of the report and the execution of the deed to him, the transactions with the purchaser in that court are closed and at an end, I apprehend it is competent to him to assert in this equitable action his title to the rent paid over wrongfully to the defendant. I am therefore of opinion to affirm the judgment.

The other judges concurring, judgment affirmed.  