
    William Rankin v. J. A. Black, Adm’r, et al.
    
    1. Sale of Real Estate. Chancery. Joint purchase. If two or more persons make a joint purchase of real estate, each is entitled to participate equally in profit and loss, without regard to equality in payment of the purchase money ; but the property thus purchased will be held bound for any excess paid by one oyer another.
    2. Same. Same. Partition. If one of the joint purchasers dies, a proceeding to sell the real estate thus purchased, to equalize the payments, does not fall within the rules applicable to sales for partition* and for the payment of debts, requiring proof, an account, &c. It is in the nature of any other original suit in chancery, and governed by the same rules of practice.
    3. Same. Same. A cross-KU by the minor cures defects. If real estate is sold upon informal proceedings, and a minor defendant files a cross-bill by prochein ami, and has the sale set aside, and a re-sale ordered, his position as defendant is changed, and any defects that existed in the proceedings on the original bill, can not affect the validity of the second sale.
    4. Same. Same. Sale will be sustained if to the interest of the minor. If real estate in which a minor is interested, is sold under a decree of Court, and the proceedings are not void, but merely voidable, the sale will be sustained if most advantageous to the minor. If it is absolutely void, it cannot be confirmed.
    EROM WARRRN.
    At the September Term, 1858, Chancellor Ridley pronounced a decree sustaining the sale of the real estate. The purchasers appealed. The facts are stated in the opinion of the Court.
    W. P. Hickerson, for the purchasers.
    
      HARRISON, for the purchasers,
    said:
    The act of 1827, ch. 54, directs, that where the heirs or legal- representatives of a deceased person shall inherit any real estate, and the same shall be so situated that partition cannot be made, or where the land is so situated that it would be manifestly to the interest of said heirs that it should be sold, a bill may be filed, and upon satisfactory proof of these facts, the Court may decree a sale. The act of 1829, ch. 35, provides, that where any real estate is held by tenants in common, and the same cannot be divided as pointed out by law, or where it is manifestly to the interest of said tenants that the same should be sold, a bill may be filed, “and the same proceedings to be had, and decree made, as said act of 1827, ch. 54, points out in cases of the heirs of persons dying intestate.”
    In this case, no proof was taken before the second sale,' to show that the thirteen and a half acres of land in the town of McMinnville, was not susceptible of division between the parties; and although the joint tenant, Rankin, might have an equitable lien for an over advancement of purchase money, on the interest of his co-tenant; if the land had been divided; or, upon the proceeds of the sale of the whole tract, if proof had been taken to show: 1st, That the land was not susceptible of division; and, 2d, That it was necessary to sell the land, on account of the deficiency of personal assets; yet it was necessary, in order to authorize the Court to decree a sale, and divest the title which the minor had in the land, that the provisions of the act of 1827 and 1829; should be complied with.
    Mrs. Pope, the widow, for herself and as next friend of her son, Byron Pope, thé minor, filed a cross-bill praying the Court to set aside the first sale. The Court, before ordering a re-sale of the land, in addition to taking the steps pointed out in the acts of Assembly above referred to, should have appointed a guardian ad litem for the minor.
    Upon the hearing of the petition in this cause, to set aside the second sale, and to release the purchaser, Rowan, the Court was of the opinion, that a good title could not be made to the purchaser, on the ground that the minor was not before the Court; but regarding this defect in the proceedings as merely technical, proceeded to appoint a guardian ad litem, with the view of removing the technical objection to the validity of the sale. The Court had no jurisdiction to order the second- sale, the proper parties not being before the Court. The sale being thus void, it was not competent for the Court, by any subsequent proceedings, to force the title upon the purchaser. Grabtree v. Niblett, 11 Plum., 488.
    In the case in 11 Hum., 488, the guardian answered, making in his answer the proper issue, admitting the existence of debts, &c., and that there was no personal property. In this case, the guardian of Byron Pope, the minor, subsequently appointed as above, merely answers, insisting, that on account of a decrease in the value of the real estate, it would be doing his ward an injury to have the second sale set aside.
    In this case, as in the case of Frazier, and Tul-loss v. Frazier et al., 1 Swan, 79, the real- estate was sold before any account was taken, or report of deficiency of personal assets confirmed by the Court.
    
      Nor can tbe subsequent report, confirmed by tbe Court, validate tbe sale previously made. 1 Swan 79.
    J. L. Spueuock, for tbe heirs,
    said:
    Rankin and Pope were joint purchasers of tbe land in controversy, by deed, bearing date 1st of March, 1852.
    Rankin had paid, before tbe last sale was ordered, $1151, more than his part of the purchase money, as appears from the master’s report.
    We insist, on an adjustment of accounts between joint purchasers, or others standing in their shoes, the matters must be equalized; and the land is held bound by a Court of Equity, for the excess paid by either, above his one-half of the consideration.
    The Court say it is not a lien or a mortgage, but a principle of equity, producing the same result in a given case. Q-ee v. Gree, 2 Sneed,. 395.
    The joint tenant, who has paid an excess above his interest of the purchase money, may look to his co-tenant’s interest in the land, as a source of reimbursement, without subjecting his personal property to the payment of said excess. Therefore,, if the tenant who has not paid his part of the purchase money die, it is unnecessary in a proceeding instituted by his co-tenant, to subject the interest of the deceased tenant to the payment of purchase money advanced for him, to show that his personal property has been exhausted; neither is there any necessity for fixing a minimum value on his interest in the joint property, because his co-tenant, who has advanced the money for him, is entitled to it out of said interest, irrespective of what it may bring.
    If joint owners hold their interest unincumbered, and one is a minor, a sale cannot be had, without first showing that the property is not susceptible of a fair division, or that it is manifestly for the interest of the minor to have it sold; but not so when one has paid an excess over his part of the consideration, and is seeking the recovery of his money out of the interest of the other. There was no necessity for the service of process upon the minor, or the appointment of a guardian ad litem, because he was before the Court by his next friend, as complainant. See Brown’s case, 8 Hum., 200.
    The Court is referred to the decrees pronounced in the case in the Court below, under which the land was sold. Reference is also had to the answer of the guardian ad litem, in which he insists, it would be manifest injustice to his ward to set said sale aside.
   OaRutheb.s, J.,

delivered the opinion of the Court.

The only contest, in this case, is upon the petition of S. D. Rowan, to be relieved from the purchase of certain lots of ground in and near the town of McMinn-ville, sold under decree of the Chancery Court in these cases, upon the ground, that owing to the defects in the proceedings, a good title cannot be made to him.

Win. Rankin and Levander Pope purchased of E. K. Bell, thirteen and one-half a,cres of ground, including 'a tavern-house, in McMinnville, at $3,000, in 1852. Pope died soon after, leaving Musadora, his widow, and Byron, his only child. He had paid only about $350 of the consideration before • his death, and Rankin largely more. Black administered on the estate.

Rankin filed his bill against the administrator, widow, and minor heir of Pope, charging his excess of pay-' ment, that the estate was insolvent, the land not susceptible of equal division, and praying that it might be sold, the payments equalized, and the proceeds divided, after the full- payment of the consideration; taxes, and expenses. Such proceedings were had as that the land ivas sold in six lots, on the 9th of December, 1854, for $3,670. Rankin was the purchaser of four of the lots, at $2,880. At March Term, 1855, the report of this sale was confirmed, and title vested in the purchasers, subject to the lien for the purchase money.

Musadora Pope for herself, and as next friend for her son Byron, filed her bill on the 14th of December, 1856, to set aside the sale which had been made, and have a division or resale, because the former proceedings had been such as not to be binding upon them. This bill was filed against Rankin and the other purchasers, and L. D. Mercer, who had become administrator de bonis non of L. Pope. The prayer was granted, and a resale ordered. There was no exception to this decree on the part of the purchasers or the original complainants, although they resisted it in their answers, and contended for the validity of the sale under which they purchased. But the Court set it aside, because the infant had not properly become a party, and the parties acquiesced.

At the resale, on the 26th of September, 1857, S. D. Rowan being substituted to the bids of J. M. Cain, was the purchaser of lots Nos. 1 and 2, for $3,190. Britton and others bid off the other four lots at $1,105 — making a total of $4,385, being an advance upon the first sale, of $715.

On the 23d of March, 1858, the said S. D. Rowan, the largest purchaser under the last sale, filed his petition to be released from his purchases, because a good title could not be made to the lots, as the sale was irregular and void as to the infant. The widow, and the guardian ad litem of the infant, answer and insist that the sale was legal, and attribute the anxiety of the petitioner to pry out defects in the proceedings, to a fall in the price and value of the property. The intelligent guardian of the minor says in his answer, that it would be most unjust and injurious to his ward to annul the sale, as the property could not be sold for so much again. So far, then, as the interest of the infant is concerned, the' proceedings should be sustained, if consistent with the law. The question, in such a case, is, was the sale utterly void, or only voidable, and capable of confirmation.

The defects are thus stated in the petition: “ A good and sufficient title cannot be made to your petitioner for the reason that no proof was taken as to the necessity of selling the lots, in order to divide the same among the claimants, and for the further reason, that no account, previous to said sale, of assets, debts, and credits of the estate of said Levander Pope, deceased.” Again, it is stated that there was no proof that partition could not be made, nor that it was manifestly to the interest of the parties to sell. We will briefly examine these grounds of objection to the title.

This is not the ordinary case of an application for a sale for partition by heirs or tenants in common, nor by the administrator or creditors for the payment of debts on failure of assets, nor yet is it the usual case of a bill by a vendor to- assert his lien for the purchase money. It rather combines some of the features of all, with the additional feature, that the original complainant, Rankin, and the decedent, L. Pope, were joint purchasers, who made unequal payments of the consideration. The main object of the bill is to equalize the payments by the sale of the property, and divide the profits, if any. It is charged that the decedent only paid $350 in his lifetime, and his administrator about $400 more, and that the balance was paid by the complainant. The administrator is made a party to ascertain the state of accounts, and make an exhibit of the assets in his hands. He answers that the estate is insolvent, as charged in the bill, and so it turns out upon the report of the master afterwards made. The widow and infant heir were made parties, but because the answers of the guardian ad litem and of the widow were not such as the rules of the Court required, the first sale was set aside, upon their cross-bill for that purpose, and the re-sale upon the prayer of their bill ordered. It is difficult to see how any defects in the service of process, or answer of the infant in the original ease, if any existed, could affect-the last sale, as that was made when he was propei’ly before the Court, by next friend, in the cross-bill, with a prayer for division or sale.

We held, in the case of Gee v. Gee, 2 Sneed, 395, that in case of a joint purchase of land, if one paid more than his half of the purchase money, a Court of Equity would hold the land bound for the excess. In that case it was insisted that there was a resulting trust to the extent of the over-payment, and that each was entitled to an interest in the land to the extent of his payment. So that if one had paid none, he would have no interest, though a joint purchaser. That would be so in the case of a resulting trust. But that was not such a case, nor is this.

Where the adventure is joint, each is entitled to participate equally in profit or loss, without regard to equality in payment. But it is a clear principle of equity, that the common property will be held bound for any excess paid by one over the other. It is analogous to the law of partnership by which, as between the partners, the capital must be equalized out of the partnership effects before the profits can be divided.

This case, then, does not fall under the rules settled by our decisions in cases of sale for partition, and for the payment of debts, in relation to the necessary proof, accounts, &c. And that is the ground upon which the petition is based. It appeared by the bill and answers in the original case, that the complainant and deceased were joint purchasers of the land and lots, that their payments were unequal, and also that the estate of Pope was insolvent. This was enough to authorize the sale of the property for the equalization of payments and division of profits. For this the land was bound at all events, where there were not sufficient personal assets. But let this be as it may, the sale was made ultimately upon the bill of the infant, by next friend, and all necessary accounts taken, either before or after the sale, to settle and adjust the rights of the parties in the proceeds. The infant, as we see, would be injured by setting it aside, and he is before the Court in a manner and form in which he can legally be divested of his title for the benefit of the purchaser, and, therefore, there can be no objection to the validity of the sale. The widow releases her claim of dower in the interest of her husband in this property. There is, then, no difficulty as to the title, and the decree of the Chancellor dismissing the petition and ordering the money to be paid by the purchaser, is affirmed. The cause will be remanded for further proceedings under the decree for the full settlement of the rights of the parties.  