
    Howery v. Helms & als.
    September Term, 1870,
    Wytheville.
    (Stamps, J„ Absent.)
    i. Partition — Sale of the Land — Objection In the Appel= late Court. — in a suit for partition, the court has no authority to order a sale of the land, unless it is made to appear by an enquiry before a commissioner, or otherwise, that partition cannot be made in some of the modes provided by the 2d and 3d sections of ch. 128, of the Code. But when it did not so appear, and no such enquiry was asked in the court below, a party who promoted the suit and at whose instance the decree was made, will not "be allowed to raise the objection for the.first time in the appellate court.
    а. Same — Same—Effect of Purchase by the Commissioner. — When the commissioner appointed by a decree in a partition suit to sell the land, becomes himself the purchaser, the purchase is voidable at the election of any party interested in the land sold. And’ the law is the same where the purchase is made nominally by a third person, who is reported by the commissioner to the court as *the purchaser, but who really purchased for the commissioner and conveyed the land to him accordingly, after the purchase as reported had been confirmed.
    3. Same — Same—Party Interested Accepts His Share of the Proceeds — Effect.—Where a party interested in the land, with a full knowledge of all the facts, elects to affirm the sale, he will be concluded by it, and in this case the acceptance, without objection, of his share of the proceeds of sale in Confederate money (for which the sale was made), was held to be such an affirmation.
    4. Same — Same—Same—Party Interested Elects to Avoid the Sale — What ilust Be Done. — Where any of the parties interested elect to avoid the sale, while it has been affirmed by other parties, the entire property, and not merely the undivided interest of the parties objecting to the sale, must be resold; and the original purchaser will be entitled to the shares of the proceeds of the resale, which would otherwise have belonged to those who have elected to affirm the original sale.
    5. Same — Same—Same—Same.—Where land is resold in cases of this sort, the usual and proper course is to offer the property at an upset price, to be fixed by the decree, according to the cases of Buckles v. Lafferty, 2 Rob. R. 392, and Bailey's adm’x v. Botin-sons, 1 Gratt. 4. But this rule is intended for the protection of the parties who elect to avoid the first sale; and where the decree for resale directed a sale in general terms, without fixing an upset price, it cannot be assigned as error in the appellate court, either by the original purchaser, or by any party who has elected to affirm the first sale.
    б. Same — Same—Purchased by the Commissioner— Original Bill,  — A bill was filed, during the larte war, for a partition of real estate among coparceners, some of whom were non-residents and so continued until after the war, and were proceeded against by publication. A decree for sale was made and a sale made under it, at which M became nominally the purchaser. The commissioner reported to the court he had made the sale — that M was the purchaser, and desired to pay all the purchase money down, without awaiting the terms of credit provided by the decree, and that he had, under a provision in the decree, accepted the purchase money from him accordingly. In fact, M was only nominally the purchaser, the commissioner himself being the real purchaser, to whom M conveyed the land as soon as the sale was confirmed. The sale was confirmed, and the shares of the non-resident parties were, by direction of the court, invested in their names in the bonds of Ployd county, issued during the war. All this was done during the war. After the war the non-resident defendants, instead of appearing in the original suit, as provided by sect. 13, ch. 170, of the Code, filed their original bill, impeaching the original sale, and asking a resale. Held: They were entitled to file an original bill, because,
    i. Same — Same—Same—Fraud,—The commissioner, by purchasing at his own sale, did an act *which a court of equity treats as a fraud upon the parties interested. And,
    a. Same — Same—Same—Same.—By reporting to the court that M was the purchaser, and concealing the fact that he was himself the real purchaser, he was guilty of an actual fraud upon the court and the non-resident parties; and thereby obtained from the court a confirmation of the sale, which might not otherwise have been decreed, and ought not to have been, if at all, without further enquiry.
    Same — Same—Investments at Risk of Purchaser.— Held, also, that the investments in the bonds of Ployd county were at the risk of the purchaser, and that the bonds should be surrendered to him as his property, the obligees being required, if desired, to assign them to him without recourse.
    John W. Helms, of the county of Floyd, died in August, 1862, intestate, leaving eleven children his heirs at law and dis-tributees ; and leaving a valuable tract of land and a number of slaves. His son-in-law, Fleming Howery, and his son, George M. Helms, qualified as his administrators.
    In September, 1862, a bill was filed in the name of Fleming Howery and his wife, three of the sons, and the husbands of two daughters and their wives, against Ham-bleton Helms and four others of the children, all of whom lived out of the State, and were proceeded against by publication, for the sale of the land and the slaves of which John W. Helms died possessed. In their bill the plaintiffs alleged that the land could not be divided among the eleven children without materially impairing the value of the separate interests.
    At the February term, 1863, of the County court, a decree was made, by which Fleming Howery and George M. Helms were appointed commissioners to sell the land and slaves — the land upon a credit of one and two years, and the slaves upon a credit of six months; or the commissioners might deduct the interest and receive the whole amount in cash if the purchasers desired it.
    Subsequently (but the record does not give,the date) ^Fleming Howery returned a report, in which he stated that on the 20th of March, 1863, ' he had made sale of the land and slaves; and, among the other purchases- he reported that the home tract of land, containing four hundred and forty-seven acres, was sold to John W. Helms at $30 per acre, equal to $13,410; that he had deducted the interest, as authorized by the decree; and had received in cash, on this tract, $12,203 10.
    He made a supplemental report, stating that proceedings had been instituted against him in Floyd circuit court, by Hambleton Helms’ creditors, to get his share of the proceeds of the sale.
    . The cause afterwards coming on on the report, it was confirmed by the court and a conveyance to Helms was ordered, and the commissioners were directed to collect the bonds given for the slaves, and after paying the expenses of sale and costs of suit, and their commissions, to pay over the balance of the proceeds of the sale of the land and slaves, one-eleventh thereof to each of the children of John H. Helms — the commissioners to retain the share of Hambleton Helms until it is ascertained who is entitled to it.
    In February, 1867, Hambleton Helms and the other parties who had been proceeded against as absent defendants, in the suit above mentioned,’as well as Roley Simmons and Malinda his wife (the latter a daughter of John M. Helms, deceased, who had been plaintiffs in the previous suit), instituted a suit in the Circuit court of Floyd county against Fleming Howery arid Rliza his wife, George M. Helms, John W. Helms and Tazewell Helms, and in their bill they charged that Howery purchased the tract of four hundred and forty-seven acres at the sale made by himself, and reported to the court that the land was sold to John W. Helms; that this report was confirmed and a conveyance was directed to be made to John W. Helms. They insist *that this was a fraud, that the sale was void, and they ask that it may be set aside.
    The bill was dismissed as to Simmons and wife at their own instance, and they filed their answers as defendants, taking the same grounds as were taken in the bill; and they say that they have not received any money under the decree in the first suit.
    Fleming Howery, George M. Helms arid Tazewell Helms answered the bill. They objected to the jurisdiction of the court, on the ground that the previous cause was still pending in the County court, in which all the parties to this cause were parties. They said the land was purchased by John W. Helms and the sale reported to the court and confirmed, and Howery was directed to pay the money to the parties, and also to convey the land to John W. Helms. That he had collected the money and paid to John W. Helms, George M. Helms, and Tazev'ell Helms and his -wife, their full distributive shares of said estate. That Howery, under the direction of the judge of the Circuit court of Floyd, funded the shares of the non-resident defendants and of the home defendants who would not receive the money, in bonds of the county of Floyd, in their names respectively. That it is true Howery did bid for the land, but his bidding made it sell for much more than it otherwise would have done. They filed with their answer the deed from Howery to John W. Helms, dated , 1863, but recorded September 29th, and also a deed from John W. Helms to Howery, dated December 27th, 1863, and the Floyd county bonds, in -which he had invested the shares of the estate of the parties who lived out of the State or refused to receive the money.
    There was no doubt that Howery purchased the land at the sale made by himself ; and that it sold for a full price. The sale was, of course, during the war, and for Confederate money.
    
    *When the cause came on to be heard, the court made a decree, setting aside the sale, and the deeds from Howery to John W. Helms and Helms to Howery, and Howery was directed to convey the land to the heirs of John W. Helms. And after directing an account of rents, the court being of opinion that the said tract of land cannot be conveniently partitioned, decreed a sale thereof on terms mentioned in the decree, with directions to the commissioners to report to the court. From this decree Howery obtained an appeal.
    The Attorney-General, for the appellants, insisted that a sale by a commissioner to himself would not be set aside as a mere matter of course, but that there must have been something unfair in the mode of conducting the sale. Custis v. Snead, 12 Gratt. 662; Cox v. McMullin, 14 Id. 82; 2 John. Ch. R. 252; McKey ex’or, &c. v. Young, 4 Hen. & Munf. 430; Anderson & al. v. Fox & als., 2 Id. 245; Quarles v. Lacy, 4 Munf. 251.
    Wade, for the appellees, insisted,
    1st. That a sale by a commissioner to himself was a fraud in law, for which the sale would be set aside. Davoue v. Fanning, 2 John. Ch. R. 252; Michoud v. Girod, 4 How. U. S. R. 503; Moore v. Hilton, 12 
      Leigh 1; Buckles v. Lafferty, 2 Rob. R. 292; Baily’s adm’x v. Robinsons, 1 Gratt. 4.
    2d. That it was no objection that the decree was for a resale out and out, and not at an outset price. That rule is for the benefit of the party who complains of the sale, and the appellee could not complain.
    
      
      He had been counsel in the cause.
    
    
      
      Partition — Equity Jurisdiction.-* — The proper proceeding-for partition at common law was by writ of partition, but this writ has been in practice almost entirely superseded by the concurrent proceeding of a bill in equity. 2 Min. Inst. (4th Ed.) 482.
      The power of a court of equity to grant partition is not discretionary, but ex débito justitiae; and whenever a plaintiff has a right to partition at law, he has the same right in equity. Wiseley v. Findlay, 3 Rand. 861. The only indispensable requisite entitling a plaintiff to relief was formerly that he must show a clear legal title. Wiseley v. Findlay, 3 Rand. 361. But now by statute, a court of equity may take cognizance of all questions of law affecting the legal title that may arise in any proceeding. Va. Code 1849. p. 526 ; Va. Code 1887, § 2562.
      Same — How Partition Made — In the Absence of Statute — By common law, the partition must be in kind, however inconvenient; a solution of the difficulty by means of sale seems unknown ; and, even in equity, “it was understood, and indeed affirmed * * (by Lord Chn. Parker, in Clarendon v. Hornby, 1 P. Wms. 447) that each tenant must have some substantial part of the premises, so that, if there were but one house or mill to be divided, and no other lands to make up the co-tenant’s share, a division in kind was unavoidable.” 2 Min. Inst. (4th Ed.) 489.
      Same- -Same — Under Statute. — But, by statute, first introducing the Code of 1849, p. 526, this inconvenience was remedied by the provision that in any case in which partition cannot conveniently be made, if the interests of those who are entitled to the subject or its proceeds will be promoted by the sale, etc.,»a sale may be decreed. Roberts v. Coleman, 37 W. Va. 158, 16 S. E. Rep. 487. See also, Va. Code, § 2564.
      Thus, now, if necessary the court may order a sale of the land in order to give full relief, but, as laid down in the principal case, it is the duty of the court, before making a decree for a sale, to ascertain by an enquiry by a commissioner, or otherwise, that partition cannot be made in any of the modes provided by the statute without a sale. Roberts v. Coleman. 37 W. Va. 158, 16 S. E. Rep. 487 ; Beckham v. Duncan (Va.), 5 S. E. Rep. 695.
      But in the partition of real estate, each part owner is entitled to have in severalty a part equal to his interest in the whole subj ect. if this is practicable, with a due regard to the interests of all concerned. But if such partition cannot be made without impairing the portion of some others, the property may be divided into shares of unequal values, and the inequality may be corrected by a charge of money on the more valuable in favor of the less valuable portion, or by other means recognized in the law of partition. Code. ch. 124, § 2, p. 526; Cox v. McMullin, 14 G-ratt. 82.
      Same — Same—Same—Record.—Now, remembering that the common law gave right to have partition in kind, and this statute being an innovation upon the common law, and taking away trom the owner the right to keep his freehold in kind, to justify a sale in any case, it must come within the stat - ute, and it must appear in some way by the record both that partition cannot be conveniently made, and that the interests of the owners will be promoted by sale. Roberts v. Coleman. 37 W. Va. 158, 16 S. E. Rep. 486.
      Upon a bill for partition of land, as a general rule, the share of each parcener should be assigned to him in severalty; and if from the condition of the subject or the parties, it is proper to pursue a different course, the facts justifying a departure from the rule should, atleast when infants are concerned. be disclosed by the report or otherwise appear, to enable the court to judge whether or not their interest will be injuriously affected : hence where the same parties are entitled to lands derived from the father and also to lands derived from the mother, and some or all of them are infants, if these lands are blended in the division, it must appear to the court that the interest of the parties in general will be promoted by this mode of partition, to enable the court to protect the rights of the infants. Custis v. Snead, 12 Gratt. 260.
      But it is not necessary that facts necessary to warrant a decree for sale should appear from the report of commissioners or by the depositions of witnesses. It is sufficient if the facts appearing in the record reasonably warrant the decree of sale: and this especially when the proceeding is to defeat the title of an innocent purchaser. Zirkle v. McOue, 26 Gratt. 517.
      Same-Collateral Attack. — In a suit for partition of land * * * whether partition can be conveniently made in kind or not, and whether the interest 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. In such a case, a sale made pending the suit by agreement of the parties, in person or by counsel, which sale is afterwards 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. Wilson v. Smith, 22 Gratt. 493.
    
    
      
      SaIe of Land by Order of Court — Purchase by the Commissioner. — In Hurt v. Jones, 75 Va. 349, the court, citing the principal case, said: "It is admitted to be the rule that ordinarily a commissioner to sell is not allowed to purchase the subject, either directly or indirectly. Such a purchase, however, is not absolutely void, but voidable only at the election of any party interested in the land.”
      Also, in Winans v. Winans, 22 W. Va. 689, the court, citing Davoue v. Fanning, 2 Johns. Chy. 252, and the principal case, said; “To allow a person to occupy the position of both buyer and seller is to subject him to a temptation which neither the law nor good morals can permit. The capacities in which he acts are inconsistent and in direct conflict with each other. The danger of the temptation to serve his own interest at the expense of those whom he represents, out of the mere necessity of the case, disqualifies a commissioner from having any interest in the purchase of property which he is directed to sell. The fact that he has undertaken the office of making the best possible sale for others, incapacitates him from acting on the other side ; and consequently, any sale he maymake by occupying such an antagonistic position is, at least, voidable at the option of those interested in an advantageous sale of the property.”
      The principal case is also approved, as to this point, in Ferguson v. Gooch, 94 Va. 8, 9, 26 S. E. Rep. 397 ; Harrison v. Manson, 95 Va. 598, 29 S. E. Rep. 420; Tennant v. Dunlop, 97 Va. 241, 33 S. E. Rep. 620; Smith v. Miller, 98 Va. 541, 37 S. E. Rep. 10; Walker v. Ruffner, 32 W. Va. 306, 9 S. E. Rep. 218; Feamster v. Feamster, 35 W. Va. 13, 13 S. E. Rep. 57.
      See also, Buckles v. Lafferty, 2 Rob. 292; Carter v. Harris, 4 Rand. 199; Bailey v. Robinsons, 1 Gratt. 4; 4 Min. Inst. (4th Ed.) 246, 659, 673 ; Bart. Ch. Pr. (2nd Ed.) 1164.
    
    
      
       Original Bill. — See Pennybacker v. Switzer, 75 Va. 689.
    
   JOYNFS, J.,

delivered the opinion of the court.

The court is of opinion that it appears, from the evidence in the cause, that the appellant, Fleming Howery, was the real purchaser of the land in the proceedings mentioned, at the sale made by him on the 20th day of March, 1863, as commissioner of the ^County court, under the

decree of that court, rendered at February term, 1863, although John W. Helms was the nominal purchaser, and was by the said Howery reported to the said county court as the real purchaser, and that such purchase by the said Howery, at his own sale, was fraudulent in contemplation of law; and that any party interested was entitled to have the said sale set aside and annulled, as of course, without proof of actual fraud, according to the principles recognized by this court in the cases of Buckles v. Lafferty, 2 Rob. R. 292; and Baily’s adm’x v. Robinsons, 1 Gratt., 4. And further, that the said Fleming Howery was guilty of a fraud upon the said County court, as well as upon the plaintiffs in this cause, in falsely reporting to the said County court that the said John W. Helms was the real purchaser; and in procuring from the said County court, by means of the said false representation, a confirmation of the said pretended sale to the said John W. Helms.

The court is further of opinion that, .by reason of the said illegal and fraudulent conduct of the said Fleming Howery, it was competent for the plaintiffs in this cause to file their bill in the Circuit court, to have the said sale, and the deed from the said Fleming Howery, commissioner, to the said John W. Helms, and the deed from the said John W. Helms to the said Fleming Howery, set aside and annulled, without resorting to the said County court for relief; and the more especially, since the said plaintiffs were non-residents of this Commonwealth, and were ignorant of the said illegal and fraudulent conduct of the said Fleming Howery until after a final decree had been rendered in the said County court at September term, 1863.

The court is further of opinion, that it was competent for the said Circuit court to proceed in this cause to give the plaintiffs full relief, by a partition or sale of the land in the proceedings mentioned; and that, although, *in a suit for the partition of land, it is the duty of the court, before making a decree for a sale, to ascertain by an enquiry by a commissioner, or otherwise, that partition cannot be made in some of the modes provided by the second and third sections of chapter one hundred and twenty-four of the Code, without a sale; yet, inasmuch as no such enquiry was asked in the Circuit court, and the appellants did not suggest to the said court, in their answer or otherwise, that partition of the said land could be made without a sale, and as the appellants procured the decree for sale made in the County court, the appellants cannot raise the objection in this court that the propriety of a sale was not ascertained by the Circuit court, and insist upon it as a ground for reversing the decree of that court.

The court is further of opinion that, although it is the usual and proper course in ordering a resale, in cases like the present, to direct the property to .be offered at an upset price, that practice is adopted for the advantage of the parties interested in the property, and for whose benefit the resale is to be made, so that the said Fleming Howery cannot object to the decree of the Circuit court upon the ground that it contains no such direction. And as the appellants, George M. Helms, John W. Helms, and Tazewell Helms, have received from said Fleming Howery their several shares of-the proceeds of the sale made under the decree of the County court, and with a full knowledge of all the facts, insist that the said sale ought to stand and be confirmed, the court is of opinion that they must be taken to have ratified the said sale, and that the shares of the proceeds of the sale to be made under the decree of the Circuit court, which would otherwise have belonged to them, will belong to the said Fleming Howery; so that the said appellants cannot object to the decree of the Circuit court, because it does not direct the property to be offered at an upset price.

*The court is further of opinion that, inasmuch as the sale of the land, and the title of the appellant, Fleming Howery, are set aside and annulled in consequence of the illegal and fraudulent conduct of said Fleming Howery, he has no right to throw upon the appellees any risk of loss from the investment in the bonds of Floyd county; and that all that he can properly ask is that said bonds shall be delivered to him as his own property, as directed by the said Circuit court.

The court is therefore of opinion that there is no error in the principles of the said decree of the said Circuit court.

But the court is of opinion that the said Circuit court ought to have directed an en-quiry to ascertain what is the interest of Hambleton Helms in the land in the proceedings mentioned, and that the said land should not be sold until after such enquiry had been made and the result thereof ascertained; and further, that the said Circuit court should not have directed the said Fleming Howery to convey the land in the proceedings mentioned to the heirs of John W. Helms, dec’d, as such a conveyance is not necessary, and it would have the effect of vesting interests in the said land in the appellants, George M. Helms, John W. Helms, and Tazewell Helms, who are not entitled to any such interest; and that the said decree of the Circuit court ought to be corrected and amended in those particulars. Therefore, it is decreed and ordered that the said decree of the said Circuit court be amended in the particulars before mentioned, and that the said decree, as so amended, be affirmed; and that the appellants pay to the appellees their costs by them expended in this court, and thirty dollars damages; which is ordered to be certified to the said Circuit court of Eloyd county.

Decree amended and affirmed.  