
    *Threlkelds v. Campbell.
    July Term, 1845,
    Lewisburg’.
    [44 Am. Dec. 384.]
    Judicial Sales — Defect in Title — How Purchaser May Obtain Relief. — A purchaser of laud at a judicial sale, can only obtain relief for defects in the title, or incumbrances on the property, by resisting- the confirmation of the sale by the Court, upon the return of the commissioner’s report. And it is not competent for a Court of Equity to enjoin a judgment obtained against him for the purchase money, on the ground of defect of title to the property at the time of the purchase.
    
      In 1839, a suit was instituted in the Superior Court of Haw and Chancery for the county of Harrison, bj one of the heirs of Patsy Threlkeld, against the other heirs, some of whom were infants, asking for the sale of a small tract of land to which they were jointly entitled, on the ground that the share of each was not worth more than 300 dollars; and that the land could not be divided without injury to the parties interested. The other heirs answered, (the infants by a guardian ad litem,) concurring in the prayer for a sale of the land; and the cause coming on to be heard, the Court appointed a commissioner to make the sale.
    The commissioner afterwards reported that he had sold the land to John C. Camp-hell, for 629 dollars ; and had taken his three bonds for 209 dollars 66 2-3 cents each, payable in six, twelve, and eighteen months from their date. This report was confirmed hy the Court, and another commissioner was directed to collect the purchase money as it fell due, and divide it among the parties entitled, according to their respective interests.
    Campbell, the purchaser, paid the first two bonds, and a part of the third; but failing to pay the balance, a suit was instituted against him, upon the bond, and a judgment obtained; and then he obtained from one of the Judges of the General Court an injunction to restrain the enforcement of the judgment, on the ground that *the title to the land was defective, and there was a lien upon it to a small amount for purchase money due from a former purchaser of a part of the land, of which he had no notice at the time of the purchase.
    The heirs of Patsy Threlkeld answered, expressing their ignorance as to any defects in the title to the land; and stating that their ancestor, as well as themselves, and Campbell, had never been disturbed in their possession.
    The cause came on for hearing on the 9th day of June 1843, when the Court made a decree, that upon the defendants, or some one for them, executing and filing with the clerk of the Court, bond with good security in the penalty of 100 dollars, payable to the complainant, and conditioned to indemnify and save him harmless from all incum-brances upon, and all defects in the title to the tract of land in the bill mentioned, the injunction awarded the plaintiff, should be and stand dissolved as an act of that day, but without damages; and that the complainant should be allowed his costs, to be retained out of the unpaid purchase money in his hands.
    Prom this decree, the defendants obtained an appeal to this Court.
    Dee, for the appellants, and William Harrison, for the appellee, submitted the case.
    
      
      JudiciaI Sales — Defect in Title — How Purchaser May Obtain Relief. — In Hyman, etc., Co. v. Smith, 13 W. Va. 772, it is said: “In the case of Threlkelds v. Gamp-bell, S Gratt. 198, it was held, that a purchaser of land at a judicial sale can only obtain relief for. defects in the title, or incumbrances on the property, by resisting the confirmation of the sale by the court, upon the return of the commissioner's report. And it is not competent for a court of equity, to enjoin a judgment, obtained against him for the purchase money, on the ground of defect of title to the property at the time of the purchase. Young’s Adm’r et al. v. McClung et al., 9 Gratt. 336, 358; Daniel et al. v. Leitch, 13.Gratt. 195, 212, 213.” To the same point, see the principal case cited in Fidelity Ins., etc., Co. v. Roanoke Iron Co., 84 Fed. Rep. 746.
      Same — Same—Time for Making Objections. — In Virginia, the general rule seems to be, that obj ections by purchasers to judicial sales for defect of title must be made before the sale is confirmed by the court, and that such objections afterwards made come too late. Watson v. Hoy, 28 Gratt. 710; Young v. McClung, 9 Gratt. 358; Daniel v. Leitch, 13 Gratt. 212; Long v. weller, 29 Gratt. 351, all citing the principal case. See also, foot-note to Long v. Weller, 29 Gratt. 347. But this rule does not apply to the equity of a purchaser arising from after-discovered mistake, fraud, or other like matter. Watson v. Hoy, 28 Gratt. 698.
      And in Daniel v. Leitch, 13 Gratt. 213, it is said: “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 obj ection 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.”
      See, further, monographic note on “Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.
    
   BA HD WIN, J.,

delivered the opinion of the Court.

The Court is of opinion, that the appellee having purchased the land in the proceedings mentioned at a judicial sale thereof, could only have obtained relief, if to any entitled, because of the matters stated in his bill, by resisting the confirmation of said sale in the cause wherein the decree directing it was rendered; and that it was not competent for the said Circuit Superior Court to give him relief by way of injunction to a judgment on a bond executed by him to the commissioner of the *Court, on the ground of any defects of title to the property existing at the time of his said purchase. The Court is therefore of opinion, that the said Circuit Superior Court erred in not dissolving, wholly and unconditionally, the injunction which had been granted to the appellee. Wherefore it is decreed and ordered, that the said decree of said Circuit Superior Court be reversed and annulled, with costs to appellants. And this Court proceeding to render such decree as the said Circuit Superior Court ought to have rendered, it is further decreed and ordered, that said injunction be wholly and unconditionally dissolved, and the plaintiff’s bill dismissed ; and that the defendants recover against him their costs by them about their defence in the said Circuit Superior Court expended.  