
    Jacob Horn et al. vs. Wm. E. Denton.
    Judicial Sales. Chancery court. Its power to correct místales in. Rights of minors and femes covert. The laws authorizing sales of the lands of deceased persons and tenants in common-for partition or division, do not authorize the making of hazardous or speculative bargains in such sales, nothing is to be sold but what the parties own, and all that they do own is to be sold and paid for. So, where' certain petitioners, tenants in common, some of whom were femes covert and others minors, filed their petition in chancery for the sale of 172 acres of land for division, that being the amount they believed the tract contained, and it was afterward by a decree of the court sold in gross and not by the acre, and the sale confirmed, but upon survey after the payment of the purchase ' money, but before final decree, it is ascertained to contain 20 acres more than both parties supposed, a court of chancery will compel the purchaser to pay for the 20 acres at the same rate per acre that he paid for the 172 acres purchased in gross. It was the duty of the master in such case either to have sold the land by the acre, or to have known the number oí acres accurately, before venturing to sell in gross: it was not in legal contemplation a mistake, but an act of neglect on the part of the master, from which a court of equity will relieve.
    
      BROM WILSON.
    The complainants, as the heirs of E. P. Horn, dec’d, filed their petition in the chancery comt at Lebanon, at its July term, 1845, for the sale of two tracts of land, one of which is described in the petition as containing “172 acres or thereabouts.” An interlocutory order was made at the same term, referring the case to the clerk and master to take proof and report whether it was to the interest of complainants, some of whom were then minors and others femes covert, to have the lands sold, and as to the value per acre of the same. The master took proof and reported to the same term, that it was to the interest of the parties to sell the land, and the proof taken shows that the 172 acres, was worth ten dollars per acre, but the master’s report is silent on this point. A decree was thereupon rendered, directing a sale of the two tracts of land, and the master is directed to sell the land, “m one or more lots, as he may think best.” Nothing is said in the decree about a minimum price per acre, or a sale in gross. On. the 2nd day 'of October, 1845, the master sold the lands at public auction in two lots. The defendant Denton became the purchaser of the 172 acre tract in gross, at the price of $1,826 00. The master reported the sale duly, at the January term, 1846, when the same was confirmed without objection. The purchase was made at one and two years credit. At the January term, 1853, the master reported the payment of all the purchase money, and that defendant Denton was entitled to a decree of title; thereupon the complainants filed their petition against defendant Denton, resisting a divestiture and investiture of title, upon the grounds that it was understood on the day of sale that the 172 acre tract, was sold hy the acre, and that upon a survey being made, a few months before the filing of the petition, it was ascertained that there were 192 acres in the tract, being an excess of 20 acres, and praying a resale of the land, or that the defendant be compelled to pay for the excess at the rate per acre, that he had paid for the balance. The defendant’s answer, admits that the tract contained, according to a survey made at his instance, about 192 acres; but denies that it was sold by the acre, or that it was understood that the sale was made by the acre, but that the same was sold in gross. It seems from the proof, that the sale was made in gross, but that there was an impression among the bidders that a minimum price had been fixed at ten dollars. At the time of the filing of the supplemental petition, some of the petitioners were still married women, and the minors had just become of age. The cause was heard by Chancellor Ridley, at the January term, 1854, who dismissed the petition, and the complainants appealed.
    
      W. L. MaRTiw, for the complainants,
    said:
    The defendant has twenty acres more land than he has paid for, amounting in value at the price bid, to more than $200. Is it consistent with the principles of justice that he shall have title to this land without being required to pay for it. The excess is more than 10 per cent, upon the purchase. If in a case like this, it should turn out that the land were to fall short of the quantity sold, justice would require that the amount of the purchase money should he reduced to the exact quantity of land, for the purchaser ought not to be required to pay for that which he does not get. “ A man should not have something for nothing.” Many of these petitioners were minors when their land was sold, and of course could not in person attend to their rights.
    It is the peculiar province of a court of equity to correct mistal&es: and more especially is it the duty of the court to correct the mistake made in this case, for here all the parties interested are already before the court. The petitioners came, into the court to have their land sold, believing that in a court of chancery ample and full justice would be done them in all things. They were mistaken in reference to the quantity owned by them. They ask the court to correct this mistake, and require the purchaser to pay for all, and not only a part of their land. It may be said that the petitioners waited too long after the sale before they filed their supplemental petition. This may be answered by replying that the purchaser did not pay the whole of the purchase money until a short time before the petition was filed; and by the further fact, that the petition was filed so soon as the mistake was discovered. Suppose it be conceded that the confirmation of the clerk and master’s report fixes the rights of the parties in reference to the sale and purchase. Still that would not. prevent the court from correcting any mistake tkatv might have been made previous to that time.
    Suppose the land had been surveyed previous to the sale, and the surveyor had made a mistake, could not the court, after the confirmation of the report, correct the mistake, whether it operated in favor of one party or the other.
    JORDAN Stokes, for the defendant,
    said:
    1. The complainants would not be entitled to the relief prayed for, if the proof showed that the allegation in the petition in reference to a sale by the acre was true. Steubim vs. Edcly, 4 Mason’s Bep. 420. But it is unnecessary to press this point, for the proof abundantly shows that the tract was sold, not by the acre, but in gross, with the distinct announcement by the master at the time he was crying the bids, that he '•'■sold the whole tract lying west of the dower, supposed to contain 172 acres, more or less.”
    
    2, It will be contended, (although no such ground is taken in the petition,) that the excess in this case is so great that a court of equity will grant the relief prayed for upon this fact alone. This position can not be sustained — the principles governing courts of equity in such cases, lead to a different conclusion. It is well settled, that where the master’s report in cases of judicial sales, is confirmed by the court, the contract becomes as binding and obligatory on the former owners and the purchaser, as if it were made by individuals; and a court of equity will not cancel the sale or disturb the contract in the one case upon less grounds than it will require in the other. 2 Daniel’s Chan. Pract. 1454-6, 1470-1. 2 Swan’s Bep. 490-1. And it is equally as well settled, that no such excess in tity, as that existing in this case, would authorize a court of equity in cases of private sales to set aside the sale or to charge the vendee with the value of the excess. 1 Story’s Eq. § 144. Stébbins vs. Eddy, 4 Mason’s Rep. 420. 9 Paige’s Rep. 16,9. 3 Yerg. Rep. 74. 15 John. Rep. 472.
    3. The lapse of time ought to enter into the consideration of the equity set up in the 'petition, and so-should the fact, that all the persons interested were of age some time before any objection was made. It would be unjust to cancel or set aside the sale, for defendant may have greatly improved the land; it would be equally unjust to charge him for the excess at the price per acre given for the balance, for the open land and improvements may have induced defendant to give the price he did.
    We ask of the court a careful examination of the ease of Stébbins vs. Eddy, 4 Mason’s Rep. 420, and 2 Daniel’s- Chan. Prac. 1454-6, 1470-1, and the cases cited.
   E. IL. Ewing, special J.,

delivered the opinion of the court.

In 1845, the heir's of one Horn filed their petition, in the chancery court at Lebanon, for the sale of two tracts of land, of which they were tenants in common. The object of the sale was partition. One of the tracts of land, and the one about which the controversy in this case arises, is described in the petition as: “ about 172 acres,” and as the remainder of the tract on which the-ancestor of petitioners died, after deducting the widow’s dower, of 124 acres. Upon bearing the petition, the usual reference was made to the master to report as to the propriety of the sale, and also to take proof and report the value of the land per acre. The master did take proof as to the value of the land, and reported that a sale would be proper, but did not report as to the value of the land. The proof made the land worth ten dollars an acre, on a credit of one and two years. A sale was ordered and $he land sold by the master in 1845. At this sale the defendant Denton became the purchaser of the 172 acre tract of land at $1,826, and executed his notes for the purchase money at one and two years. At the January term, 1846, of said court, the sale was confirmed without objection.

The defendant paid the purchase money slowly, and did not make his last payment until January, 1852. Soon after he had made his last payment, defendant, with a view to a final decree, had the land surveyed, when it was discovered that the tract of land contained really 1914 acres, or 194- acres more than 172 acres, the supposed quantity. Upon this discovery, and before any final decree divesting title, the heirs of Horn filed their supplemental petition to have pay for this additional 194 acres of land, or to set aside the sale at Denton’s option.

This supplemental petition alleges that the sale was by the acre, and that there was a mistake as to the quantity of land by both parties; that some of the petitioners were minors and some married women at the sale, and that the minors continued such until very shortly before the filing of the second petition. That the discovery as to the additional quantity of land was not made until Denton’s survey in 1852. Denton an» swers this supplemental petition, and denies that the sale was by the acre, and insists that it was a sale in gross, and that the master in fact sold it, as more or less. Proof was taken under this second petition, and it appeared that the sale was not by the acre, though there seems to have been an impression among bidders that ten dollars an acre was the minimum price fixed by the decree. Some , of the petitioners were minors and some married women at the date of the sale. The minors became adult but a short time before the filing of the second petition, and the married women continue in that state still. The chancellor dismissed the supplemental petition and decreed the land to defendant.

It is urged before this court for petitioners, that there was a mistake as to the quantity of the land and that such a mistake can be corrected, either before or after the confirmation of the sale, if the application be made before final decree divesting title. On the other hand, it is argued that there was no mistake; that it was a sale where the purchaser as well as the vendor, not knowing the exact quantity of land, chose to take the risk. And it is further said for the purchaser, that if relief could have been given at all, it must have been upon application made before the confirmation of the sale.

That judicial sales after confirmation can be impeached only upon the same ■ grounds as private sales: and finally, that in this case acquiescence from length of time, is to be added to other reasons against disturbing the sale.

The authorities cited to sustain the position of defendant have been examined by the court, and they certainly do sustain the position, that where a private sale of land is made in gross and not by the acre, a subsequent discovery that both parties were mistaken in their opinions will not avail to set aside the contract, unless the mistake was very gross. In such a case indeed mistake is not predicable of the contract for the parties agree to risk their judgments as to price and quantity of land. A very gross mistake might evince such want of judgment, as to let in a court of chancery on another ground. The authorities referred to, also, place judicial sales after confirmation, under very much the same rules as to their binding effect as private contracts. The difficulty here is, however, that this sale was made for persons, some of whom were not sui juris / some infants and some married women.

No analogy can, therefore, be run, between this sale and that of a contract between private individuals. If these persons had been dealing privately, they could not have given a title bond of any description that would have bound them, but certainly they could not have given one for their land in gross, that would have been specifically decreed against them, where it appeared they were only to be paid for 172 acres and were to convey 191-|. And is not a confirmed sale, analogous to a title bond? In each case the title is withheld only to have the purchase money paid.

It may be said, however, that the clerk and master was the agent of the petitioners and could bind them, and that he did bind them by a sale of their land in gross and not by the acre.

And that it is the very object of judicial sales of this description to have a representative who may bind infants and married women. To a certain extent, this is true. But to what extent is it true so far as this case is concerned? The laws, which authorize the sale of the lands of deceased persons and tenants in common for partition or division, do not authorize the mating of hazardous or speculative bargains in such sales. Nothing is to be sold but what the parties own, and all that they do own, is to be sold and paid for.

The master’s duty was either to have sold the land by the acre, or to have known the number of acres accurately;, and have received bids for the whole amount.

He had no authority to sell the land as more or less, at any rate, unless this expression was to embrace some very insignificant amount, such as might arise from difference in surveys, &c. There was no mistake in this case really. There was rather a neglect of duty on the part of the clerk and master, who, instead of reporting that he had sold “the tract of 172 acres for so much,” thereby assuming its quantity, concealed from the chancellor,' that he had not sold by the acre. Had all the petitioners been sui juris, the confirmation of the report, and acquiescence under it, might have been construed into an assent by the petitioners to the action of the master, which would have hound them. These considerations can have no effect against the minors and married women. The best that can be done for the defendant under the circumstances, is to allow him to pay for the surplus of 19-£ acres of land, at the same rate at which he paid for the 172 acres, with interest on one-half after one year, and on the other half after two years from the date of the sale.

The decree of the chancellor will be reversed, and a decree be entered in accordance with this opinion, vesting defendant with the title to the whole of the land, subject to a lien for the price of the 19£ acres and interest, which must be paid before the nest session of this court.

The costs to be divided.  