
    *Goddin v. Vaughn’s Ex’x & als. Same v. Mason & als.
    January Term. 1858,
    Richmond.
    b. Sale of Real Estate — Purchaser Entitled to Clear Title. — upon a sale of real estate, whether at public or private sale, where nothing- is said about the title, the purchaser is entitled to have a clear title with covenants of g-eneral warranty.
    2.Same — Same—Exceptions.—But where the sale is of such a character, and made under such circumstances, as fully and sufficiently to make known to the purchaser the exact nature of the title he ‘is to expect ; as where the sale is made avowedly by an executor under the provisions of the will, or by a sheriff or commissioner under an order of the court, he can of course only demand such title as was in contemplation of the parties when the sale was made.
    3. Same — At Auction — One Moiety Vested in infants— Right of Uninformed Purchaser. — A purchaser not informed at the time of his purchase of land at auction, that the title to one moiety thereof is vested in infants, and that it can only be obtained by a suit in chancery, may, when informed of the fact, refuse' to proceed with the purchase, and abandon it,
    4. Same — Same—Same—Same—Waiving of Rights.— But if such a purchaser, upon being informed of the state of the title immediately after the sale, plainly manifests his intention to proceed with the purchase, content to take a conveyance for the moiety which can be made at once, and to look to the court of chancery for the title to the other moiety, he thereby waives the objection which he was entitled to make for the want of a conveyance with general warranty.
    5. Chancery Practice -Decree Enforcing Contract Passes Title to Infants’ Land — Case at Bar. — M and V are joint owners of real estate, and they enter into an agreement in writing-, that if either wishes to sell the property, he may ñx a price which he will take, and if the other refuses to give it, he may have the whole property sold at auction. And in case of the death of one or both of the parties, their executors and administrators are directed to carry out the agreement as fully as though they were living. V died leaving a widow and several infant children, having made a will previous to the agreement, by which he forbade his executrix to sell any of his real estate. After V's death, M had the property sold at public auction, on terms which were satisfactory to V’s representative, and which were proved to be beneficial to the children. A bill by the widow and children of *V against the purchaser, for a specific execution of the contract, will be sustained, and a decree enforcing the sale will pass the title of the infants: though the proceeding does not conform to the act concerning the sale of infants* lands, nor to that concerning partitions.
    <5. Same — Interlocutory Decree — Enforcing Contract-No Provision for Deed. — It is not error in an interlocutory decree enforcing a specific execution of a contract against a purchaser, that it does not direct a deed to be made and tendered to him.
    7. Same- Decree for Sale of Land on Condition — Counsel! for Plaintiff Made Commissioner to Sell Property— Effect. — Where a decree for specific execution of a contract against a purchaser, provides that if the purchase money, or any part of it, is not paid by a day certain, the property shall be sold, it is not error to appoint the counsel of the plaintiffs, there beingno objection to the person, the commissioner to make the sale; nor is it error to refuse to associate with him, one of the counsel of the purchaser.
    8. Same -Title to Land — Question of Law — Order of Reference Unnecessary.-Where the facts are all before the court, and the objection to the title to land purchased is a question of law, it is unnecessary to refer the title to a commissioner.
    •9. Purchasers Pendente Lite — Who Are — Case at Bar. —Whilst suit is pending the purchaser conveys the property in trust to secure a debt. The cestuis que trust are penitente lite purchasers, and are not necessary parties.
    10. Deed of Trust — Disqualification of Trustee - Case at Bar. — A trustee in a deed of trust to secure a debt falling due at different periods, advances to the debtor money to pay the first installment, and takes a transfer of it. He can only subject the property to satisfy him after the balance of the debt is paid: and his interest does not disqualify him from acting as trustee.
    11. Injunctions — Obtained in Vacation — Filing of Answer. Where an injunction has been obtained in vacation, the defendant may file his answer and move the court to dissolve the injunction, without filing the answer either at rules or in term.
    12. Answer-Exceptions Not Well Founded — Failure to Pass upon.  — if exceptions to an answer are not well founded, It is not ground to reverse a decree, that they were not set down to be argued, but the cause was heard and decided without passing upon them.
    Joseph Vaughn and C. R. Mason, being the joint and equal owners of the property in the city of Richmond, known as the Swan tavern, and at a later period, as the Broad street hotel, they, by a writing under seal, bearing date the 14th of September 1846, entered into an agreement, by which, reciting their ownership of the property, and that death or other causes may make it necessary or advisable to sell it, they provide as follows: “that should either party desire, it, he shall 'X'iix such price thereon as he may be willing to give or take, and if not acceded to by the other, a sale of the whole shall be made upon the best terms that can be had. And in case of the death of one or both of the parties, our executors or administrators are hereby directed to carry out this agreement as fully as though we were living.” There was an endorsement on this agreement, which provides, that “in case either party should wish the premises sold, and not wish to make an offer of what he should give, he shall have the right to say what he will take, and if not acceded to by the other, shall have a right to have the whole publicly sold to the highest bidder, by giving sufficient notice of the same.”
    Joseph Vaughn died in September 1849, leaving a widow and nine clidren, only one of whom had then attained the age of twenty-one years. His will was written in 1844, and was duly admitted to record in the County court of Hanover. By it heap-pointed his wife executrix of the will, “with full power and authority to receive and pay debts, and do all necessary and proper acts as I myself would, except it be to dispose of any lauds or slaves, which is hereby prohibited.”
    In September 1854 Taylor & Williams, auctioneers in the city of Richmond, sold the said Swan tavern property at auction, when Isaac A. Goddin became the purchaser thereof, at the price of twenty thousand six hundred and forty dollars, one-fourth in cash, and the balance in six, twelve, eighteen and twenty-four months. At this sale it was not announced by the auctioneer, for whom he was selling the property, and it does not appear from the evidence that God-din knew who were the owners of it until after the purchase.
    It seems to have been supposed b3' the vendors, that under the agreement between Mason and Vaughn, the executrix of Vaughn could make a good title to *his moiety of the property; and after the sale the question of her authority to convey was submitted to counsel, who seems to have decided against it, and to have advised a suit in equity to obtain the authority of the court to confirm the contract and convey the moiety of the property. According^, in March 1855 a suit was instituted in the Circuit court, of the city of Richmond, by Mrs. Vaughn, as widow and executrix of Joseph Vaughn, and his nine children, eight of whom w'ere infants, who sued by their guardian, against Isaac A. Goddin, in which they set out the joint ownership of the property by Mason and Vaughn, the agreement between them, the death of Vaughn, and the sale to Goddin; and they alleged that when the sale was made they had no doubt that Mason and the personal representative of Vaughn could make a perfect title to the property; and that possession of it was immediately delivered to the purchaser. That they are advised the title cannot be made by the executrix, and that the aid of a court of equity is therefore necessary, in order to execute the agreement between Mason and Vaughn, the execution of which would be manifestly for the advantage of both parties. They farther stated that Goddin had complied with his contract with Mason, but declined to execute the contract with the plaintiffs without a decree of a court of equity. That he was however anxious to complete his contract; but if he could not obtain the moiety of the lot owned by the plaintiffs, the whole sale would be canceled, as he had purchased on the condition that he should have the whole and not a moiety. They therefore prayed for a specific execution of the contract; and for general relief.
    To this bill Goddin filed an answer, admitting his purchase of the property; and averring that he was ready to comply with the contract with the plaintiffs as soon as they could make him a good title to a moiety *of the property to which they were entitled, as he had no difficulty with Mason as to his moiety.
    In this suit the court directed an enquiry as to whether the sale was for the interest of the infants: and the commissioner having reported that the sale was beneficial to them, the court, on the 25th of March 1855, made a decree confirming said report, and directing the contract of sale between the plaintiffs and Mason with Goddin to be specifically executed. That the executrix of Joseph Vaughn should receive of Goddin the amount due from him, and his four negotiable notes, payable in six, twelve, eighteen and twenty-four months from their date, to the said executrix; and that upon the receipt of said money and notes, she should execute a conveyance of the property to Goddin, and take from him a deed of trust upon it to secure the payment of said notes as they fell due.
    In May 1855 the executrix of Joseph Vaughn reported to the court, that Goddin had failed to comply with the decree; and it was ordered that an attachment should issue against him, unless, upon being served with a copy of the order, he should show cause against it on the 18th of the month. This motion was continued at the instance of the defendant until the 14th of June, when the defendant made his return to the rule, objecting to the title which he was required to take under the decree; insisting that he made no purchase from the plaintiffs, and that thej7 had no power to convey the property to him, either with or without the aid of the court in this cause. And thereupon, it appearing- that the sale was made by Taylor & Williams at the instance of C. Mason, the court, with the assent of the plaintiffs, dismissed the bill, without prejudice and without costs; it appearing that the suit was instituted with the assent of the defendant. This decree was on the same day set aside on *the motion of the plaintiffs, and the rule against Goddin was continued until the first day of the next term.
    In July 1855 the plaintiffs filed an amended bill, in which the previous bill and proceedings were set out; and an error in the bill in stating that the sale was made by the plaintiffs and Mason, was correeted; and it was stated that the sale was by Mason. It was further stated that Goddin had obtained a conveyance from Mason for his, moiety of the property, and had executed a conveyance to secure the payment of the purchase money remaining unpaid, amounting to nine thousand two hundred and eighty-eight dollars; and that he had also-executed another deed on the whole of said property to secure debts due to Goddin & Apperson. And making Goddin, Mason and James M. Taylor, the auctioneer who-conducted the sale, and trustee in the deed from Goddin to secure Mason, parties, they prayed that Goddin might be enjoined from receiving the rents of the property, and that a receiver might be appointed; and that Goddin might be compelled to elect promptly to take the property on the terms of the sale; and that upon his declining to take it, that partition thereof might be made between the plaintiffs and him, or the sale of the whole decreed.
    Goddin demurred to the bill; and also. answered. He admitted the purchase of the property upon the terms stated in the hill; hut he insists that he was to have a perfect title; and upon no other terms would he have bought. He says that at the time of the sale he did not know who were the owners of the property. He knew from the assurance of the auctioneers that he was to have a good title, and would have time to investigate it after the sale. That after the sale he was informed by the auctioneers that they had sold the property as the agents and by the direction of C. R. Mason, and Catharine S. Vaughn, executrix of 'x'Joseph Vaughn. That it was when the defendant called upon the auctioneers io comply with the terms of the sale, that he was, for the first time, informed of the inability of the parties to make him a perfect title at the time; and then he was informed of the contract between Mason and Vaughn. That some time thereafter, being still willing to consummate the sale on his part; and the said auctioneers, agents for the owners, assuring him that a perfect title would be made to him at an early day. he was put into possession of the property by the said agents, and at once commenced a thorough repair and improvement of the premises. That Mason being anxious to realize his proportion of the purchase money, the defendant settled with him according to the terms of the sale; Mason thereupon conveying his moiety to the defendant; and the defendant conveying the same to Taylor in trust to secure the balance of the purchase money due to Mason. That defendant was willing to facilitate the perfecting the title to the other moiety of the property, and therefore signed the answer prepared for him by the plaintiffs’ counsel. But he insists that he is not thereby to be understood as waiving his right to a perfect title to said property, or the obligation of the plaintiffs to do whatever was necessary in law to give him such a title. That when a copy of the decree made in this cause was served upon him, he employed counsel to examine the title which the plaintiffs proposed to make to him for the property; and that counsel, after a careful examination of the case, advised him that he could not get a good title to plaintiffs’ moiety of said property under the decree by any deed made under the same. The defendant therefore refused to take a title under said decree.
    The grounds of objection to the title are: Hirst. That by the will of Joseph Vaughn his executrix is expressly prohibited from selling his real estate, except *for division. Second. That Lhere is no proof of the alleged contract between Mason and Vaughn; and only an unattested copy is filed in the cause. Third. That the mode prescribed by the statute either for the sale of infants’ lands or for partition, has not been pursued in this case, and therefore that the decree would not bind the infants.
    The defendant further stated that he had expended between four and five thousand dollars in additions to and improvements upon the property. He insisted it was the plaintiffs who were in default in complying with the contract; and declared his willingness to comply with the terms of the sale whenever a good title was made to him; and that so far from abandoning the purchase, he was forced, on account of the improvements he had made on the premises, as well as for other good reasons, to insist upon a good title being made by the complainants to their moiety. He insisted further, that the property was sold by the plaintiffs as well as Mason, and he objected that from the nature of the property, it being a public hotel, to take it out of his hands and put it into the hands of a receiver, would greatly injure its value ; and he denied that there was any danger of loss from his failure to comply with the terms ox the sale when a good title should be tendered to him. As to a partition of the property, he supposes the plaintiffs are scarcely serious in what they say. He trusts that the court will compel them to make him a good title to their moiety of the property : and he calls for strict proof of tibe execution of the contract between Mason and Vaughn, and for whatever else, and for whatever other steps, might be necessary and proper to perfect the title thereto.
    There was proof of the execution of the agreement between Mason and Vaughn; and also of the continued possession of the property by Goddin, and of *his expending some four or five thousand dollars in improvements upon it. It also appeared in proof that Mason had conveyed his moiety to Goddin, who had conveyed the same to Taylor to secure the balance of the purchase money; and that Goddin had also conveyed his interest in the whole property to secure a debt to Goddin & Apper-son. These parties filed a petition in the cause, asking that they and their trustees might be made parties. And Goddin also filed a petition, asking leave to file a cross bill.
    In Bebruary 18S6 the cause came on to be heard upon its merits, as well as upon the petitions filed, when the court rejected the petitions, but gave leave to the defendant Goddin to file his cross bill as an original bill. The. court also overruled the demurrer; and being of opinion that either party was entitled to have the contract of sale executed, made a decree that Goddin should, within ten days after being served with a copy of this decree, pay into the Barmers Bank to the credit of the cause, the sum of nine hundred and fifteen dollars and four cents, being the interest upon the purchase money of that moiety of the property which belonged to Joseph Vaughn, from the ISth of August 1854, when said Goddin purchased the same, to the date of the decree; and also two thousand and sixty four dollars, being the first installment of the principal, which was to be paid in cash; and that he should execute to' James Byons (who was the counsel for the plaintiffs) as commissioner of the court his four negotiable notes for two thousand and sixty dollars each, payable severally at six, twelve, eighteen and twenty-four months from the date of the decree, with interest. And if the said Goddin should fail to comply with the decree, Mr. Ryons was appointed a commissioner and directed to sell the moiety of. the said property upon the terms and in the mode prescribed in the decree; he first giving security in the ^'penalty of five thousand dollars, with conditions according to law. In March 1856 Isaac A. Goddin filed a bill in the Circuit court of the city of Richmond, seeking to enjoin the sale of the moiety of the Swan tavern property which had been conveyed to him by C. R. Mason, and which he had conveyed in trust to Taylor to secure the balance of the purchase money due to Mason. The bill states the fact of the purchase of the whole property at auction, and the difficulties about the title, as stated in the case of Goddin v. Vaughn, and the proceedings in that case, and the other facts before stated, relied on by him ■ in that case. That the property sold for its full market value at the time of the purchase; and that owing to the stringency in the money market, and of the great depreciation of the value of real estate, it would not, except for the improvements put uppn it by Goddin, sell for as much as he gave for it; and that a sale of it for cash or for a large part of the purchase money, would result in a ruinous sacrifice to Goddin. That on account of the delay in making him a good title he had not been able to sell the property when real estate commanded a good price, and the money market was easy; and he had not been able to effect a sale since, in consequence of the defects in said title and of the said altered state of things.
    The bill further stated, that the trustee Taylor had by the direction of Mason advertised the property conveyed in the deed of trust to him to be sold on the 26th of the month, for the payment of the bonds given by the plaintiff - for the deferred installments of the purchase money.
    The plaintiff further insisted that he was entitled to demand and have a perfect and unclouded title to the whole of said property ; and that he was. entitled to have the opinion of the Supreme court of appeals *upon that title. That if a perfect title could then be made to him for the whole of said property, he was entitled to have said deed of trust canceled, and the terms of sale and of credit changed and adapted to the altered state of things. That to sell the property conveyed in said deed of trust when there were such clouds upon the title, and pending the appeal in the other case, and especialljT to sell for six thousand five hundred and thirty-six dollars in cash, as advertised, in the then condition of the money market and the depreciated condition of real estate in the city, would be to inflict wanton and irremediable injury upon the plaintiff.
    The prayer of the bill was for an injunction to the-sale; that the deed of trust might be delivered up to be canceled; and for general relief. The injunction was granted.
    On the 26th of March 1856, in vacation, Mason answered the bill. He states that himself and Vaughn purchased the Swan tavern property; and that they entered into the agreement hereinbefore mentioned. That Vaughn died, and in the year 1854 the defendant caused the property mentioned in said agreement and in the bill to be advertised for sale; and that on the 16th of August of that year the property was sold at public auction, and purchased by the plaintiff at the price of twenty thousand six hundred and forty dollars, and he was immediately put in possession of it, and had so continued ever since. He said it was not true that the plaintiff purchased with the distinct understanding that he was to get at once a clear and indisputable title to the whole property, because he purchased with the full knowledge of the state of the title; and he knew, therefore, that the widow and children of Vaughn were the owners of one moiety of the propert3r. And he knew that defendant was to convey him only one moiety of the property, and that he was*to look to the,widow and children of Vaughn for the title to the other moiety. That defendant had conveyed his moiety of the property to plaintiff, who had accepted the conveyance, and was therefore estopped by that act, and his reconveyance of the property, from complicating the title of the defendant with that of Vaughn; for which the defendant insisted he was in no wise responsible.
    As to the complaint that if the deed of trust is enforced the plaintiff will suffer loss, the defendant said, that the loss, if any, would be the result of no fault of his, but of the folly of the plaintiff in becoming the purchaser of property which he had no means to pa3r for, and thus of preventing the defendant from selling his property to others who could have paid for it.
    The plaintiff filed various exceptions to the answer of Mason ; but as this court was of opinion that they were not well founded in fact, it is unnecessary to state them.
    It did not appear that Goddin knew, before the purchase of the property, who were the owners of it, or the difficulties in the way of making the title; except as it might be inferred from the fact, that as assessor for the cit3r of Richmond, in 1850, he had assessed this property as the property of Joseph Vaughn and C. R. Mason; and that two obituary notices of the death of Vaughn appeared in the Rnquirer. and Religious •Herald, published in Richmond, on the 25th and 26th of October 1849.
    In May 1856, on the motion of the defendant Mason, the court in vacation dissolved the injunction granted in this case: whereupon Goddin applied to this court for an appeal; which was allowed.
    John Howard and Alexander H. Sands, for the appellant, insisted:
    
      1st. That a purchaser is entitled to have a good and x'marketable title; and as a general rule is entitled to a general warranty of title. 1 Sugd. Vend. 455; Hall v. Betty, 4 Mann. & Grang. 410; Garnett v. Macon, 2 Brock. R. 185, 244; Marlow v. Smith, 2 P. Wms. 198, 201; Rose v. Calland, 5 Ves. R. 186, 189; Roake v. Kidd, 5 Ves. R. 647; Stapylton v. Scott, 16 Ves. R. 272; Sloper v. Pish, 2 Ves. & Beame 146; Omerod v. Hardman, 5 Ves. R. 722, 734; Elureau v. Thornhill, 2 Wm. Bl. R. 1078; Rawle Cov. for Title 562; Rucker v. Bowther, 6 Heigh 259; Dickinson v. Hoomes’ adm’r, 8 Gratt. 353, 394; 2 Sugd. Vend. 545; and that though the court’s opinion should be in favor of the title, yet the purchaser ought not to be compelled to take it if there were reasonable doubts of its sufficiency. Pyrke v. Waddingham, 17 Eng. R. & R. R. 535, approved in Collard v. Sampson, 21 Id. 352.
    2d. That Mason sold the whole property, and was therefore bound to warrant the title to the whole. Sugd. Vend. 310; Rloyd v. Crispe, 1 Eng. C. R. R. 95; Hall v. Betty, 4 Mann. & Grang. 410. That he did not sell under a power from Vaughn, because it was a bare, naked power, uncoupled with an interest, and was terminated by the death of Vaughn. Story Agen. 88, 147, 148; Knapp v. Alfred, 10 Paige’s R. 205; Hunt v. Rousmanier’s adm’rs, 8 Wheat. R. 1, 74; Huston’s adm’r v. Cantril & ais., 11 Reigh 136. And that Goddin had done nothing by which he waived his right to such title from Mason.
    3d. That the proceedings in the suit were not such as would bind the infant heirs, and pass the title by the decree. That these proceedings were not such as were required either in a suit for the sale of infants’ lands, or for partition; and that infants’ lands could only be effectually sold in one or the other of these proceedings. Pierce’s adm’r v. Trigg’s heirs, 10 Reigh 406; Code, ch. 124, p. 526; Sess. Acts 1852, ch. 97, p. 79; Custis v. Snead, 12
    Gratt. 260; Garland v. x'Roving, 1 Rand. 396. And that the case was distinguishable from Daniel v. Beitch, 13 Gratt. 195, becattse that was a judicial sale.
    4th. That it was error not to direct the execution of a deed in the decree, Goddin being entitled to a deed when he paid the purchase money. Sugd. Vend. 212; Hook v. Ross, 1 Hen. & Munf. 310; Ross v. Hook’s adm’r, 4 Munf. 97; Beverley v. Bawson’s heirs, 3 Id. 323; Grantland v. Wight, 2 Munf. 179. Borm of decree given in Sands’ Suit in Rquity, p. 471, 472.
    5th. That the trustees and cestuis que trust in the deed to secure Goddin & Apper-son, should have been parties in the first suit. 1 Daniel’s Ch. Pr. 252; Anonymous, 3 Swanst. R. 139; Braker v. Deveraux, 8 Paige’s R. 513.
    6th. That it was error to appoint the counsel of the appellees the commissioner to sell the appellant’s property. York Buildings Co. v. McKenzie, referred to in Davoue v. Banning, 2 John. Ch. R. 268-9.
    7th. That it was error not to require the commissioner to give security before proceeding to act; the statute being imperative in all cases of sales by a commissioner of the court.
    8th. That the answer of Mason having been filed in vacation, it was not a part of the record, and could only be regarded as his affidavit. 1 Rob. Pr. 139; Tate’s Dig. p. 569, g 94; Id. p. 116, '{ 34, note 2; Id. p. 128, $ 59; Code, ch. 171, p. 649, I 1, 2, 3, 4; p. 650, | 34.
    9th. That the exceptions should have been set down to be argued. Code, p. 650, l 35; and it was error to decide any other question in the cause before passing upon them. Clarke v. Tinsley’s adm’r, 4 Rand. 250. And the exceptions should have been sustained.
    James and Wm. H. Byons, for the appel-lees, insisted:
    116 *lst. That the contract between Mason and Vaughn gave to each the
    right to have the whole property sold; and that the devisees of Vaughn were bound by it. Therefore, it was not necessary in this case to proceed under the act in relation to the sale of infants’ lands, or that in relation to partitions. They cited 2 Tucker’s Com. 461; 2 Story’s Bqu. Jur. I 778. And the sale having been proved to be for the benefit of the infants, and they being plaintiffs in the suit, they are as much bound by the decree as if they were adults. Brown v. Armistead, 6 Rand. 594; Brook v. Hertford, 2 P. Wms. 518; Ellison’s Case, 5 John. Ch. R. 261; Macpherson on Infants, p. 363, 382, 383, 386, 41 Raw Ribr. ; Nalder v. Hawkins, 7 Cond. Eng. Ch. R. 352.
    2d. That the claim on the part of the appellant to a conveyance with general warranty, w'as for the first time set up in this court, after he had been in possession for three years. That this right was a mere implication, and might be waived by the purchaser. That knowing the infants could not give him such a warranty, he took possession and had held it; and not having made the objection until after the decree, he must be held to have waived it. Vail v. Nelson, 4 Rand. 478; 1 Sugd. Vend. p. 243, note 1; Id. 398, 402; Roach v. Rutherford, 4 Dess. R. 126. They insisted further, that it was the right of Goddin to have a conveyance of such title as the heirs of Vaughn could make, though that was less than under his contract he had a right to demand. And having in his answer insisted upon his purchase, the court was bound to make the decree. They cited 1 Sugd. Vend. 242 ; 2 Tuck. Com. 466.
    3d. That Goddin being the grantee of Mason, he could not require 1hat this last should be made a party in the suit of Vaughn’s heirs against Goddin; and *Goddin & Apperson and their trustees being pendente lite purchasers, the plaintiffs are not bound to make them parties.
    4th. That it was no ground for reversing the decree, that the plaintiffs’ counsel was appointed the, commissioner to sell; and that the security required was ample to cover any amount which would be in his hands at one time; that the notes were to be made payable to him as commissioner, and the trust appearing' on their face, he could not negotiate them.
    Sth. That the statute having authorized the judge to dissolve an injunction in vacation, the authority to file an answer in vacation must be held to follow as a necessary consequence. Code, ch. 179, $ 12, p. 678; Eden on Inj. 118. .
    
      
      Sale of Real Estate—Purchaser Entitled to Clear Title. —See Christian v. Cabell, 22 Gratt 83, and foot-note.
      
    
    
      
      Same — Same—Exceptions.—In Fleming v. Holt, 12 W. Va. 162, it was said : “A purchaser at a public sale of land, made by a trustee, must look to the title of the grantor of the land ; and he is entitled only to a deed with special warranty of title. He cannot look to the trustee for a good title, for in making the sale he is but an agent; he cannot look to the creditor, for he sells nothing, and is merely to receive the proceeds of the sale. To such a sale the principle of ca/oeat emptor applies. See Petermans v. Laws, 6 Leigh 529; Saunders v. Pate, 4 Rand. 8; Sutton v. Sutton, 7 Gratt. 237; Findlay v. Toncray, 2 Rob. 374; Bowles on Covenants, p. 418; Goddin v. Vaughn, 14 Gratt. 117."
      
      This language was approved in Jones v. Thorn, 45 W. Va. 193, 32 S. E. Rep. 176.
      A sheriff selling under execution, with good faith, incurs no responsibility as to title ; there being no implied warranty, raised by law, under such a sale. The rule caveat emptor applies to such a case. Saunders v. Pate, 4 Rand. 8. See also, foot-note to Christian v. Cabell, 22 Gratt. 83; Findlay v. Hickman, 10 Leigh 363.
      Same — Specific Performance — Defect inTitle Unknown to Purchaser. — in Middleton v. Selby, 19 W Va. 174, it was said : “There is no question, that generally and where any defect in the title was not known to the purchaser at the time of the contract of sale, a court of equity will not decree a specific execution of a contract for the sale of land, unless the vendor can make a good title. (Watts v. Kinney, 3 Leigh 272; Goddin v. Vaughn & Co.. 14 Gratt. 117; McCann v. Janes, 1 Rob. 256; Clarke v. Reins, 12 Gratt. 98.)” See, in accord, Linkous v. Cooper, 2 W. Va. 70, citing the principal case. And see foot-note to Griffin v. Cunningham. 19 Gratt. 571.
      A purchaser is not bound to pay the purchase money for real estate until a good title, free from cloud which may disturb the purchaser, shall be made to him, unless the contract otherwise provided. Watson v. Coast, 35 W. Va. 473, 14 S. E. Rep. 252, citing the principal case; Tavenner v. Barrett, 21 W. Va. 657, 681; 2 Min. Inst. 791.
      Same — Same—Defect in Title Known to Purchaser.— If the purchaser knew, when he made his contract, that there was a defect in the title, and that it would take a considerable time to remove it; or acquires this knowledge after his purchase and acquiesces in the delay, or proceeds, with knowledge of the defect, in the execution of the contract, he has no ground of complaint. Vail v. Nelson, 4 Rand. 478.-
      This proposition was approved in Rader v. Neal, 13 W. Va. 387, 388, citing the principal case, and Vail v. Nelson, 4 Rand. 478, as authority. See, in accord, Dodson v. Hays, 29 W. Va. 594, 2 S. E. Rep. 425.
      Yet, when the express contract is for a perfect title, the party cannot be put off with a defective title, even if the defect was by him known at the time. Johnston v. Jarrett, 14 W. Va. 238.
      Same — Same—When Ability to Convey Title Must Exist. — But the principle is well* established that it is not essential that the vendor had at the time of the contract such title and capacity to convey the property, or such means and right to acquire it as would enable him to fulfil it on his part. It is sufficient, if he is able to convey, whén he is required by the contract, or the equities of the case. And where time is not of the essence of the contract, the vendor will be allowed a reasonable time to obtain a perfect title. Rader v. Neal, 13 W. Va. 388; Mays v. Swope, 8 Gratt. 46 : Dodson v. Hays, 29 W. Va. 594, 2 S. E. Rep. 425, citing principal case. * See also, foot-note to Griffin v. Cunningham, 19 Gratt. 571.
    
    
      
      Chancery Practice —Title to Land — Question of Law-Order of Reference Unnecessary. — See the principal case approved as to the proposition laid down in the eighth head-note in Tracewell v. Boggs, 14 W. Va. 262; Thomas v. Davidson. 76 Va. 343. See also, mono-graphic note on “Commissioners in Chancery” appended to Whitehead v. Whitehead, 23 Gratt. 376.
    
    
      
      Purchasers Pendente Lite — Parties.—it seems well settled th,dXin\rcha.s<srsyendenielite are not necessary parties to a suit for the sale of land. See Philips v. Williams, 5 Gratt. 259; Price v. Thrash, 30 Gratt. 515, and foot-note.
      
    
    
      
      Injunctions — Obtained in Vacation - -Filing oí Answer. — In Zell Guano Co. v. Heatherly, 38 W. Va. 422, 18 S. E. Rep. 615, it was said : “Answers, etc., except in cases of injunction, can only be filed in court or at rules. See Goddin v. Vaughn, 14 Gratt. 102, 130; Hayzlelt v. McMillan, 11 W. Va. 464, 478.” Sec also, mon-ograpliic note on “Injunction”; monographic note on “Answers, in Equity Pleading” appended to Tate v. Vance. 27 Gratt. 571.
    
    
      
       Answer — Exceptions Not Well Founded — Failure to Pass upon. -See principal case approved in Hartman v. Evans, 38 W. Va. 672, 18 S. E. Rep. 812. See also, monographic note on “Answers, in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
   BÉE, J.

It may not be questioned that where a sale of real estate is made in the .ordinary mode and in general terms without any stipulation as to the character of the title which the purchaser is to get, he is entitled to demand that a clear title shall be made, and that it shall be assured to •him by deed with covenants of general ■ warranty. And this rule holds good equally where the sale is made at public auction as where it is concluded by private negotiation. In either case, however, where the sale is.of such a character and under such circumstances as fully and sufficiently to -make known to the purchaser the exact nature of the title which he is to expect, he can of course only demand such title as was in contemplation ' of the parties when • the sale was made. As ■ in the case of a sale by an executor, avowedly as such, under the provisions of a will, or by a sheriff or commissioner under the order of .a court, and other cases of the like kind. In these the purchaser can only expect to get the special title which the vendor is authorized to convey, *nor is he entitled to demand covenants of genera-1 warranty.

In the cases before us it is alleged that a:t the time of the sale of the property in controversy, the appellant had full and complete knowledge of the state of the title, and was aware that the title to a moiety was in the heirs of Vaughn, all of whom with one exception were infants under the age of twenty-one years. This however is denied by the appellant who alleges that he purchased in entire ignorance of the state of the title, upon faith of the declaration made by the auctioneer at the time of the sale, that a clear and indisputable title would be made. Nor is there anj’ sufficient proof to establish this knowledge at the time of the sale. But it is proven very distinctly, and indeed' may fairly be considered as admitted by the appellant, that after the sale but before any steps were taken to consummate the contract, he was informed of the true situation of the property, and learned that the title to one undivided moiety was in the children of Vaughn as -his heirs or devisees, and could only be obtained by a resort to proceedings in chancery.

Now if at this point, the appellant had refused to proceed further with the contract because the title which he was to receive was not such as he had contracted for, he | might have been well justified in doing so, and the court of chancery would in vain have been appealed to to compel him to specific performance. But he did not adopt this course. On the contrary immediately after the sale and before- a single step had been taken to complete the purchase, being informed by the auctioneer in whom the title was vested, and how and where the title to the moiety of Vaughn’s heirs was to be obtained, he expressed no dissatisfaction, but with this knowledge of the state of the title, plainly manifested his intention to go on with his purchase, . *content to take a conveyance from Mason for his moiety, and to look to the court of chancery for the title to that of Vaughn’s heirs.

It is in vain to say that the agreement between Vaughn and Mason of the 14th of September 1846 was not produced till some months afterwards, and that therefore the appellant did not have full knowledge of all the facts when he decided upon his course. Even where a fraud hasi been practiced it is not necessary- that the party should be aware of all the circumstances of the transaction ; it is enough that he should know what he is about to do will confirm the transaction if it were otherwise liable to be impeached. Murray v. Palmer, 2 Sch. & Lef. 474, 486., But there was nothing in that agreement to deter the appellant from proceeding to complete his purchase if otherwise disposed to do so. Its effect would rather have been to confirm him in his purpose. He was told, he sa3rs, that a good title would be made to the moiety of Vaughn’s heirs, but that it would be necessary to obtain it by resort to the court of chancery. This was deemed satisfactory, and he determined to proceed with his purchase. What was to be the basis of the decree was a matter of very little consequence if the title passed by it. But although the original agreement was not shown him, he was informed of the existence of such a paper and of its provisions. He says in his cross bill that he requested to see the agreement and the will of Vaughn, but that neither was shown him, and that he would at once have rescinded the agreement if he could have foreseen the difficulties and delay to which he was to be subjected. He did not however rescind it, but concluded to proceed with it. In his answer to the amended bill, he says, this was when the auctioneer called on him to comply with the terms of sale, and that some time thereafter he was, put into possession. So that if this agreement *could have had any influence in determining his course, he was apprised of its existence before he had taken a single step towards completing his purchase.

Thus, as it seems to me, the appellant with sufficient knowledge of all material facts, did elect to complete his purchase and take the title of ' Vaughn’s heirs ; and the decision of these causes must depend on the solution of these questions: first, is the title of Vaughn’s heirs good, and can it be fully and effectually transferred to and vested in the appellant under the proceedings that have been had? second, is the appellant still entitled to insist as the condition of his performing the contract, that this title shall be assured to him with covenants of general warranty?

It is no where alleged that there is any defect in the title itself as claimed and held by Vaughn’s heirs, no better or other title whatever is alleged to be outstanding in a third person, nor is it pretended that there has been any forfeiture under the revenue laws, or any lien or incumbrance of any hind whatever resting upon it. Their title, then, is good; but it is insisted on behalf of the appellant that this title cannot be transferred to him under the proceedings which have been had. It is argued that the court of chancery cannot convert the real estate of infants by a sale save only under the provisions of the statute authorizing a sale of infants’ lands in certain cases at the suit of the guardian, or that providing for such sale in certain cases of partition, and that the proceedings in this case are under neither of those statutes and conform to none of their provisions. This argument, however, omits a most material element in the case. It ignores completely the contract of the 14th of September 1846, or denies to it any effect as a proper basis for the action of the court. It is contended that it confers a mere power upon Mason to make a sale which could not be exercised after the death of Vaughn, *and that the case is not helped by the concurrence of the executrix of Vaughn because by the will she is expressly prohibited from selling any lands or slaves. "Whether Mason could or could not, by his own act, make a sale of the property after the death of Vaughn that would be binding upon the heirs of the latter is, in the view I take of the case, not material to be decided, although it may be argued with some plausibility that the effect of the agreement was for the purposes of a sale according to its terms, to revive the right of survivor-ship, and thus enable the survivor to sell and convey the property, being liable of course to accottnt for a moiety of the. proceeds to the estate of the deceased joint tenant. Nor do I deem it material to en-quire how far the executrix of Vaughn could act under the agreement with the provision in the will prohibiting her from selling lands, though it may be observed that the agreement expressly provided for its being carried out after the death of either party, the contingency of which is recited as a principal inducement to entering into it, and provides that the executors of the pariies shall carry out the same as fully as they could themselves if in life; and this agreement was entered into more than a year after the date of Vaughn’s will, which appears to have been made in 1844, some time before Mason and Vaughn had acquired the property, their deed from Hodges and wife being dated on the 27th of April 1846. Bor if Mason could not by his own act, consummate a sale after the death of Vaughn that would be effectual to pass the title to the whole property to the purchaser, with or without the concurrence of the executrix of Vaughn, I think it clear that the agreement conferred upon him the right in equity to have a sale of the property according to its terms, and this right could not be taken away by the death of Vaughn, nor could it be impaired by any will that he might have añade or might thereafter make. *It constituted a material element of the joint tenancy and entered into its substance; and the heirs of Vaughn though not named, were yet bound by it, because they took the title that devolved upon them subject to the terms and conditions which it imposed. The regular course of proceeding, it is true, would have been, to file a bill against the heirs of Vaughn and ask for a decree for the sale of the property; this however Mason did not do, but undertook to make the sale by his own authority, and did not seek the aid of a court of chancery either before or after the sale, as the bill which has been filed to affirm the sale is not in his name but in the names of the executrix and heirs of Vaughn. This irregularity however will not necessarily vHiate the proceeding. It has been held by this court that where the guardians of infants had made a sale of their wards’ land upon a bill by them to affirm the sale the case would be a proper one for the consideration of the court under the statute providing a mode by which a guardian might obtain a sale of his wards’ lands, and that if the court should be satisfied the interest of the infants manifestly required a sale, and that the one that had been made was advantageous to them, it might confirm if instead of requiring a new sale to be made under its decree. Garland v. Loving, 1 Band. 396. The case in judgment, I consider quite as strong as the case just cited, and I think it entirely competent for the court fo confirm the sale made by Mason if the circumstances are such as to render it proper. That they are so, T think sufficiently appears. It is shown that the sale was fairly made and that it was to the interest of the infants that the same should be ratified, whilst the widow and the only one of the heirs of Vaughn that had arrived at full age had fully concurred in it.

That the bill filed is in the names of the heirs and not in that of Mason constitutes no serious objection. *Tt can make no difference to the appellant, so he gets the title, whether ihe suit in which the decree is rendered is prosecuted in the names of the former or in that of the latter. Nor was it necessary that it should conform to the statute for the sale of infants’ lands at the suit of their guardian or to that concerning partitions. The power of the court over the subject did not depend upon either of these statutes, but grew out of the general principles of equity, and is founded upon the agreement between Vaughn and Mason. It was the duty of the court, of course, to see that the names of the infants were used for a proper purpose and to promote a beneficial object, but when satisfied of this, and acting for their benefit, it pronounced its decree, the infants are as much bound by it as if they were of full age, and this even if they had been defendants. That infant plaintiffs are as much bound and as little privileged as one of full age has long been considered the established doctrine in England. Gregory v. Molesworth, 3 Atk. R. 626; Brook v. Hertford, 2 P. Wins. 518; and so laid down as settled law by Judge Carr in Brown v. Armistead, 6 Rand. 594. That the sale was for the benefit of the infants and that it is to their interest that it should be confirmed, is ascertained by the report of the commissioner, and indeed is sufficiently shown by the appellant himself. And I entertain no doubt that the decree of the court carrying the same into effect will bind the infants as effectually as they could be in any mode whatever. Whether Mason could have maintained a bill convening the heirs and the purchaser and seeking to confirm the sale is not at all material to enquire. Certainly the appellant by settling with him for his share of the purchase money and accepting a conveyance for his moiety, and consenting to look to the heirs of Vaughn for their title, took away any interest he might otherwise have had to resort to active measures, *and exonerated him from the duty of initiating the proceedings. And by the decree as it is, the heirs of Vaughn are as effectually bound as they could have been by any decree that might be rendered in a suit prosecuted by Mason.

Much of what has been said will apply to the claim now set up by the appellant to covenants of general warranty for the interest of Vaughn’s heirs; some further observations on this point may be added.

I have said that a party who purchases real estate in the usual way without any stipulation as to the title is entitled to demand covenants of general warranty. But this right founded on implication may as I have already intimated, be repelled by the circumstances, or it may be waived by the vendee as evinced in his acts and declarations. A vendee may if he please elect to take what the vendor can give though it may not be all he contracted for, and if with full information he chooses to confirm a contract which he .had the right to rescind, he will be bound by it, and no new consideration will be necessary to render the confirmation obligator. Chesterfield v. Janssen, 2 Ves. R. 125, 140; Roche v. O’Brien, 1 Ball & Beat. 330, 355; Cole v. Gibbons, 3 P. Wms. 290; Morse v. Royal, 12 Ves. R. 355. And even in a case of fraud, if instead of repudiating the transaction, the purchaser deal with the property as his own, he will be bound though he afterwards discover a new circumstance of fraud, for that will be considered as only strengthening the evidence of the original fraud, and will not revive the right of repudiation which has been once waived. Campbell v. Fleming, 1 Adolph. & El. 40, 28 Eng. C. L. R. 29.

The question of waiver of objection to the vendor’s title is, in every case, one of fact: did the purchaser intend to waive, and has he actually waived, the objection ; but the intention may be inferred from his acts, and no direct expression of it is required. Indeed his *silence may in some cases be tantamount to the clearest expression of being content with the title. 2 Sugd. Vend. (6th Am. ed.) 8; Burroughs v. Oakley, 3 Swanst. R. 159. Where a purchaser knows when he makes his contract that there is a defect in the title, and that it will take a considerable time to remove it, or acquires this knowledge after his purchase and acquiesces in the delay, or proceeds with knowledge of the defect, in the execution of the contract, he cannot afterwards complain. Pincke v. Curteis, 4 Bro. Ch. Cas. 329; per Green, J., Vail v. Nelson, 4 Rand. 478, 481. So, where a purchaser knowing of an objection to a title enters into possession of the estate, he may be considered to have himself executed the purchase, and thus waived his objection. Eludyer v. Cocker, 12 Ves. R. 25; Binks v. Bord Rokeby, 2 Swanst. R. 222. And granting a lease to a person in possession under the vendor, will be held to be a taking possession, for the possession of the tenant is the possession of the landlord. Stephens v. Guppy, 3 Russ. R. 171, 3 Cond. Eng. Ch. R. 346. Attempting to resell is an important circumstance upon the question of waiver, but it is of itself not conclusive, as the party may have designed merely to' ascertain the value without really intending to sell. Knatchbull v. Grueber, 1 Madd. R. 151, 170. So, the preparation of a conveyance is a strong circumstance, as showing that a stage of proceeding had been reached subsequent to the discussion of title, and it may be supposed, therefore, that all objections had been removed or abandoned. Burroughs v. Oakley, 3 Swanst. R. 159. See, also, Ogilvie v. Foljambe, 3 Meriv. R. 52; 2 Sugd. Vend. ch. 8, (j 1, p. 7, et seq. And if a purchaser take possession under a contract, and afterwards rejects the title, he must relinquish the possession, although he may have expended money in making improvements. Nicloson v. Wordsworth, 2 Swanst. R. 365.

Now, as we have seen, the appellant was informed *after the sale but before any step had been taken to complete the contract, that the title to one moiety was in the heirs of Vaughn all of whom except one were infants, and that their title was to be obtained and transferred to him by a suit in chancery; yet with this knowledge he proceeded to take possession of the property and make such repair and improvements as his taste or judgment suggested; he settled with Mason for his moiety of the purchase money, and accepted from him a conveyance of his title; and executed a deed of trust upon the property to secure the payment of part of that purchase money; he fully concurred in the proceeding' instituted to obtain the title from the heirs and filed an answer to the bill admitting and stating his readiness and anxiety to complete the same; and even after he had raised obstacles to the completion of the contract in the way proposed he yet still insisted in his answer to the amended bill that the complainants (the executrix and heirs of Vaughn) should be compelled to make him a good title to their moiety, and that he should not be put to the necessity of filing a cross bill for that purpose; and this at a time when, if he did not know it when he filed his first answer, being in the hands of his counsel he must have known that the heirs of Vaughn could not be compelled to convey with covenants of general warranty, though I apprehend, he must be supposed to have known this when he first elected to go on with his purchase. He also executed a second deed of trust upon the property to secure the payment of borrowed money, and he continued in possession receiving the rents and profits down to the decree, resisting the suggestion made in the amended bill for the appointment of a receiver. Under these circumstances, I think it quite too late for the appellant to claim to be entitled to covenants of general warranty for the moiety of Vaughn’s heirs either from them or *from Mason, and that he must be held by his acts and conduct to have the right to insist upon such covenants.

The distinction sought to be made between the waiver of a defect in a title and of covenants in a deed cannot be maintained. In either case it is an alleged defect in the title proposed; and if a party shall be held by his acts and conduct to have waived a defect in the substance of the title, a fortiori he shall be held to have waived covenants for assurance of a title acknowledged to be good or in which no Jaw is shown or pretended.

Several other questions were raised and discussed by the counsel to which I will now briefly advert.

It is said to be a grave error in the decree that it contains no provision that a deed shall be made or tendered to the appellant, and a precedent found in the excellent treatise of Mr. Sands (Sands’ Suit in Equity, p. 471, 472), is cited as giving the usual and proper form of such a decree. That this may be a very correct and safe precedent, I am not disposed to question, but so far as I have observed it has not been generally adopted. On the contrary, the more usual practice has been in cases of this kind where a sale is directed to withhold by express provision a conveyance of the title till after the coming in of the report. And the court can as effectually transfer the title by a subsequent order as by a provision in the decree. At the most, I cannot think it so material as to render necessary the reversal of the decree.

The appointment of the counsel for Vaughn’s heirs as the commissioner to make the sale, and the refusal of the court to associate with him as such one of the counsel of the appellant, is also complained of as error in the decree. It is the constant practice of the courts to name the counsel prosecuting a -claim to a decree for the sale of property as the commissioner, and I am *not aware that the legalitj' of such an appointment has been heretofore questioned. If there be no objection personally, to the counsel so named (and any personal objection in this case is wholly disclaimed), I cannot see any impropriety in such an appointment and especially as the whole matter is under the control of the court whose duty it is to see that its commissioner has acted with perfect fairness and impartiality, and to correct and, if necessary, punish any deviation from the line of duty. Nor do I see any necessity or particular propriety in associating with him the counsel of the other party. If the former is liable to be biased in favor of his clients, the latter is not less so in favor of his, and from this diversity of interests divided counsels might ensue not at all favorable to the prompt and harmonious execution of the decree of the court. At any rate it is a matter within the sound discretion of the court and I cannot see or say that that discretion has been unduly exercised.

I can perceive no necessity in this case, for a reference to a commissioner to examine and report upon the title. In England it is true, upon a bill for specific performance, either party may have a reference as to title. 1 Sugd. Vend. (ed. 1843) 3S7. The practice has not general^’ obtained to this extent with us. Where the title is doubtful and obscure or depending upon matters in pais, as in the case of Beverley v. Eawson’s heirs, 3 Munf. 317, a reference may be very proper and necessary. Here the facts were all before the court, and the question was one of law most appropriate for the court to decide. Jackson v. Ligon, 3 Leigh 161, 180, Judge Carr’s opinion. Even according to the English practice where the title is clear, no reference is necessarjn Omerod v. Hardman, 5 Ves. R. 722; Rose v. Calland, Id. 186. And such in my view was the title in question here.

The omission to make the trustees or the cestuis que *trust named in the deed to secure Wellington Goddin and J. E. Apperson, parties, is not an error of which the appellant can complain, if error at all. But I think it was no error, for those parties must be regarded as standing on the footing of pendente lite purchasers, and it was therefore not necessary to notice them in these proceedings. Nor do I think the appellant can be heard here to object to the trustee Taylor. If disqualified to act as trustee, he was rendered so by the act of the appellant. But it is difficult to see how he is disqualified. If he claims to be substituted, as the appellant alleges, to the rights of Mason for the amount he advanced to the appellant to enable him to make the cash payment, he can of course only expect to come in after the debt to Mason is fully satisfied, and thus he would have an interest to make the property sell for as much as possible, so as to create a surplus after satisfying Mason’s debt out of which his supposed claim might be paid, but he can have no interest in so much of the proceeds of the sale as would be required.to discharge the debt to Mason -for which and for which alone he could make the sale. Thus his interest would be concurrent, rather than conflicting, with that of the appellant. But in addition to this, the appellant made no objection to a sale upon this ground, nor did he ask the court to substitute some othef person as trustee in place of Taylor in case the injunction should be dissolved, and it may be not unreasonable to infer that he was content Taylor should continue to act as such. The objection is made for the first time in this court, and comes too late even if it could have availed the party in the court below.

Another objection 'taken for the first time in the argument here, is that the motion to dissolve was premature, or at least that the answer should not have been read on the hearing because it had not been filed ^either in court or at the rules. Generally it is true that an answer can only be filed during the session of the court or at the rules, but by our statute, as I think, an exception is made in cases of injunction. The object of giving the judge in vacation power to dissolve an injunction was to prevent delay, and this would be to some extent defeated if a party had to wait until the rule day or a session of the court before he could put in his answer and have the benefit of it on a motion to dissolve. I think the larger power to entertain and decide the motion to dissolve embraces that of receiving the answer and making it a part of the record. If there were any thing in the objection it should properly have been made when the motion to dissolve was heard or at least when the petition to reinstate the injunction was heard and considered by the court.

The last objection I shall notice was that the exceptions to the answer were not set down for argument as the statute requires. There would be some force in this objection if the exceptions could have been made available to the party on argument. I think they could not have been, for I consider the answer as substantially and sufficiently responsive to the bill in all its allegations. That the whole property was sold at the auctioneer’s sale, is not contested, and is I think as sufficiently admitted in the answer as it could be by the most categorical answer in the affirmative: and the whole case proceeds on the assumption that the whole property was sold as an entirety, though the sale was subsequently in effect converted into a sale of moieties by the act of the appellant. The other exceptions are for matters rather lying in inference or proof than in the knowledge of the respondent, or are too technical and hypercritical in their character to require consideration here, in view of the provision of x'the Code (ch. 181, § 4, p. 680), which declares that a decree shall not be reversed at the instance of a party who has taken depositions for an informality in the proceedings when it appears that there was a full and fair hearing upon the merits and that substantial justice has been done.

Upon the whole I think there was no material error to the prejudice of the appellant in the decree in the case of Vaughn’s heirs, and none in the order dissolving the injunction or in that refusing to reinstate it, in the case against Mason and Ta3dor, and am of opinion that the same should be affirmed.

DANIEL, MONCURE and SAMUELS, Js., concurred in the opinion of Lee, J.

ALLEN, P.,

dissented upon .the merits in the first case. He concurred in affirming Goddin v. Mason.

Decrees affirmed.  