
    
      Hughes & Wife v. Johnston.
    July Term, 1855,
    Lewisburg.
    (Absent DAriel and Samuels, Js.)
    1. Appellate Practice — Interlocutory Decree — Appeal Improvidently Awarded. — If an appeal from an Interlocutory order or decree is allowed, and the Court of appeals is of opinion that it should have been proceeded in further before the appeal was allowed, it will be dismissed as improvidently awarded.
    2. Same — Same—Same—Case at Bar. — A bill is filed in 1836 by an executor and guardian, charging that the personal estate of his testator is not sufficient to pay his debts; and that it is for the interest of the infants to sell their land; and that he had made a contract for the sale of the land which he deemed highly beneficial to the infants. The bill is not sworn to; nor does it appear that the,testimony was. taken in the presence of the guardian ad litem, or upon interrogatories agreed to by him. In the same year a decree is made confirming the sale, and authorizing and directing the executor as commissioner to convey the land upon the payment or securing of the purchase money; and directing him to report to the court. The cause is continued regularly until 1845, when, on the motion of the plaintiff, an order is made for the settlement of the guardian’s accounts: And then the cause is continued until January 1853, when the death of one of the infants and the marriage of the other is suggested: And the husband and wife obtain an appeal from the decree of 1836. Held:
    1. Same — Same—Same—Same.—The appeal was improvidently allowed, and should be dismissed.
    2. Same — Same—Same—Same.*—The cause should be sent back, and the plaintiff reauired to amend his bill and make the purchaser and those claiming under him, parties. He should be allowed to make the affidavit prescribed by § 16, of the act, 1 Rev. Code 405, concerning guardians, and to show, if he can, that the evidence was properly taken; and both parties should be allowed to introduce further evidence. And if upon taking the proper accounts, and the evidence introduced, it shall appear that the sale was necessary under the facts existing at the time, and was fairly made, and for a full price, the same is not to be set aside on account of the irregularities in the proceedings.
    *In May 1833 John H. Eulton and Beverley R. Johnston, executors of Charles C. Johnston deceased, and guardians of his two infant children, filed their bill in the Circuit court of Washington county against the said infants, to have a sale of a tract of land descended to them from their father. In their bill they state that there was a considerable sum due for the purchase money of the land; that the personal estate of their testator was not sufficient to pay his debts, and that it was for the interest of the infants that the land should be sold. That so believing, they had made a contract for the sale of the land to Robert Beattie at the price of seven thousand dollars, which they considered highly advantageous to the infants; and they ask that the said sale may be confirmed. This bill was not sworn to by the plaintiffs.
    At the same term of the court a guardian ad litem was appointed for the infants, to defend them in the suit; and he answered, submitting their rights to the protection of the court. Afterwards the bill was amended, making the heirs of the infants parties defendants.
    
      Depositions were taken by the plaintiffs in relation to the condition of the land, and to show that it was for the interest of the infants that it should be sold: but it does not appear that these witnesses were examined in the presence of the guardian ad litem, or upon interrogatories 'agreed upon by the plaintiffs and the guardian.
    In June 1836 the cause came on to be heard, when the court, upon the personal knowledge of the judge of the tract of land, as well as the matters contained in the record, being satisfied that the sale made to Beattie was judicious and highly beneficial to the infant defendants, decreed that said sale be confirmed: And Beverley R. Johnston, who was appointed a commissioner for the purpose, -was directed, upon the payment *of the purchase money, or upon its being secured by a lien upon the land, to convey the same to the said Beattie, with special warranty ; and to report his proceedings to the court. ..
    From this time the cause was regularly continued until October 1845, when, on the motion of the plaintiffs, a commissioner was directed to state their accounts as guardians of the infant defendants, and report- the same to the court. And then the cause was continued until January 1853, when the death of one of the infant defendants, and the marriage of the other to Robert W. Hughes, was suggested, and the suit was revived in the name of Johnston, the surviving executor and guardian, against Hughes and wife; -who thereupon applied to this court for an appeal from the decree of May 1836; which was allowed.
    J. W. Sheffey and Patton, for the appellants.
    Stuart and Baldwin, for the appellee.
    
      
      See principal case cited and followed in Londons v. Echols, 17 Gratt. 19.
      Judicial Sales — Validity of — Notice to Purchaser. — See principal case cited in Estill v. McClintic, 11 W. Va. 425; Heermans v.Montague (Va.), 20 S. E. Rep. 904, 2 Va. Dec. 6; foot-note to Londons v. Echols, 17 Gratt. 115.
    
   AIvBEJN, P.,

delivered the opinion of the court:

The court is of opinion, that as by the Code, p. 684, ch. 182, $ 10, it is provided, that “the petition shall be rejected, when it is for an appeal from an interlocutory decree or order in a case, which the court or judge to whom it is presented deems it most proper should be proceeded in farther in the court below before an appeal is allowed therein,” it is equally competent for the appellate court after an appeal has been allowed, to dismiss the same as having been improvidently granted and remand the case, if it deems the case to be one in which justice to all interested, makes it proper that it should be proceeded in farther in the court below, before concluding the rights of the parties interested in the decree, by reversing or affirming the same.

And it appearing that the interlocutory decree complained *of in this case was rendered on the 1st of June 1836, whereby a contract of sale in the bill and proceedings set out, as having been theretofore made with Colonel Robert Beat-tie was confirmed, and a conveyance of the land sold was directed to be made by a commissioner to said Beattie, upon the purchase money being paid or secured; that since then no proceedings besides continuances have been taken in the cause, except an order directing a settlement of the guardian account, made at the October term 1845, and an entry made in the year 1853, suggesting the death of one of the heirs of Charles C. Johnston, the marriage of the other, and a revivor of the cause against the surviving executor and guardian; the court is of opinion that it could not act upon the appeal after such a lapse of time, and in the present condition of the record, without the hazard of injustice.

The purchaser is no party to the record; it does not appear whether he acquiesced in said interlocutory decree confirming his contract for the purchase of the land; and if he has acquiesced, whether he has paid the purchase money, or received a conveyance. If the purchase has been completed, he has an interest in the decree, which should not be disturbed until he has been made a party and had an opportunity of being heard in support thereof.

The court is further of opinion, that in the present condition of the record it would be unjust to the appellee to express any opinion upon the alleged errors in said interlocutory decree. The propriety of the sale must be determined by ascertaining the condition of the estate at the time when the sale was made. If the sale was necessary under the facts then existing, and was fairly made for a full price,' it does not follow that mere irregularities in the proceedings, if any such occurred, would make it necessary to set the same aside upon a final hearing. But whether such sale *was proper or not cannot be correctly determined until an account of the liabilities and assets of the estate is taken: And the executorial and guardian accounts, should be settled, and an enquiry made as to the payment of the purchase money of said land and the application thereof, before any final decree is pronounced.

To bring all these matters properly before the court for adjudication, the appellee should be required to amend his bill and make the said Robert Beattie, the purchaser of said land, and those claiming under him, if any, parties defendants; proper accounts should be ordered and taken ; leave should be given to the appellee to file the affidavit prescribed by the 16th section of the act of 1819, 1 Rev. Code, p. 405, concerning guardians ; and to show if he can that the depositions of the witnesses filed had been taken in presence of the guardian ad litem, or upon interrogatories agreed upon by him; and leave should be given to both parties to take further testimony, so as to enable the court upon a final hearing, to decide the cause with all the parties in interest before it, and in view of all the circumstances entitled to consideration.

It is therefore adjudged, ordered and decreed, that the appeal be dismissed as improvidently granted, with costs to the appellee, and that the cause be remanded to be proceeded in farther in the mode above indicated, in order to a final decree.

Appeal dismissed.  