
    *Zirkle v. McCue & al.
    September Term, 1875,
    Staunton.
    1. Partition—Right oí Guardian to Maintain Suit For, - A guardian of infants may maintain a suit for partition of real estate held jointly by the Inf air ts and other adult parties.
    H. Same—Judicial Sales—When Warranted—infants. —In a suit for partition, to authorize the sale under the statute of lands in which infants have. an interest, the case must be one in which partition cannot be conveniently made, and it must appear that the interests of the parties will be promoted by a sale of the property.
    311. Judicial Sales — Validity—As Evidenced by Reo ord.—It is not necessary that the 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.
    IV. Facts.—M died in 1863, leaving E his widow, and ten children, two infants, the children of E, and eight adults. He left a tract of 789 acres of land, slaves, &c. In March 1863 E filed her bill, in which she aslted to have her interests and those of her children (whose guardian she was) in the estate ascertained and laid off: To have her dower in kind or commuted in money ; and that the interests of her children might also be ascertained and placed under her control as their guardian, and for a settlement of the rights of all the parties. The administrator and children of M were made defendants, and the case regularly proceeded iu. Heod:
    1. Suit for Partition—By Guardian.—it is a suit for partition, and E might properly bring it.
    2. Same—Sale—Conclusiveness of.—If in the progress of the cause, it appears to be a case under the statute for a sale of part of the land, and a sale was made, which all the adult parties and E, as guardian of her children, approved, and it was confirmed and perfected by payment of the purchase money and a conveyance, it cannot afterwards be questioned by the infants as unauthorized in that suit.
    *3. Same—Same—Rights of Purchaser,—Even if it is doubtful whether E could maintain such a suit, yet it having.been brought, and the sale having been so made and perfected, the purchaser will not he disturbed in his purchase at the suit of the infants.
    V. Decree—Binding on lnfants.—It is well settled in Virginia that an infant, as a general rule, is as much bound by a decree against him as a person of full age. He is not permitted to impeach such decree, except on the same grounds as a person of full age may impeach it—such as fraud, collusion or error.
    VI. Judicial Sales—Rights of Infants.—But in suits for partition, whenever the court sells and conveys an infant’s inheritance, he is entitled to an opportunity of making a defence at any time within six months after he arrives at full age.
    VII. Same—Rights of Innocent Purchaser.—The errors for which a judicial sale of an infant’s land may be set aside must be substantial errors. A fair purchaser is not bound to go through all the proceedings, and to look into all the circumstances and see that the decree is right in all its parts. He has the right to presume the court has taken the necessary steps to investigate the rights of parties, and upon such investigation has properly decreed a sale. He will not be affected by any imperfection in the frame of the bill if it contain sufficient matter to show the propriety of the decree. The propriety of the sale must be tested, and its validity determined by the circumstances then existing, and the surrounding circumstances. The only matter for enquiry is, Did the court have jurisdiction of the subject matter? Were the proper parties before it? Were the proceedings regular? Was the sale proper under all the circumstances then surrounding the parties? If so, the title of an innocent purchaser is not to be disturbed, because, from subsequent events, the sale has proved unfortunate for the infants.
    In March 1863 Ellen S. McCue instituted a suit in equity in the Circuit court of Augusta county, and in her bill she set out that she was the widow of John McCue, deceased, who departed this life in April 1862, seized and possessed of a tract of land of seven hundred and eighty-nine acres, estimated to be worth S90 per acre, and also of a number of slaves and other valuable personal property. That the heirs and distributees of said McCue are the plaintiff, and said McCue’s ten children, naming them, eight of them by a former *wife, all of whom were of age, and two of plaintiff’s, who were infants of tender years. That plaintiff is desirous of having her interests and those of her children (whose guardian she is) in the estate, clearly ascertained and laid off. She is willing to have her dower in the land assigned in kind, or that it be commuted for a sum in gross, as may be deemed most advantageous for all concerned. That the buildings, which are large and valuable, are at one end of the farm. That it is obvious if the dower of plaintiff were laid off and the estate divided among the heirs, it would give but a small portion to each. Eor this reason it will probably be to the interest of all parties to sell the land entire or in two or more parcels. If a sale should be deemed advisable, it might be necessary to sell the mansion house and the adjacent land, in order to make the rest bring its value, as the absence of improvements on the other parts might deter parties from purchasing. Plaintiff, however, merely makes these suggestions for the consideration of the court. She is content to take either a fair allotment of dower, or the equivalent in the form of a commutation for money. She prays that all necessary steps may be taken by the court to have her rights in the lands, slaves, &c., of her deceased husband, ascertained and assigned to her in kind, or its equivalent in money; and that the interest of her infant children may be also ascertained, and placed under her control as their guardian; and that all such orders and decrees may be made as may be necessary for a full and final adjustment- and settlement of the rights of all the parties in the whole estate, real and personal, and to secure to each and every one their respective rights, &c. The administrator and all the children of John McCue, deceased, were made parties defendants.
    *The adult defendants answered. Some of them objected to the commutation of the plaintiff’s dower in the land, and insist she shall take the same as the law directs. They all agree that if the land remaining after'laying off the plaintiff’s dower, can not by consent, be satisfactorily sold in parcels, it be divided among the heirs ; but in respect to this matter they are willing the subject may be disposed of in a manner most conductive to the interests of the heirs at law; conceding, however, to each heir, and reserving for themselves respectively, the right to take each his share in kind, provided it can be done without manifest injury to the others. The infants answered by guardian ad litem.
    The cause came on to be heard on bill and answers, when, by consent, the court appointed commissioners to make a survey and plat of the land, laying off one-third in quantity and quality, which might be assigned to the widow for dower. And in order that the court might be advised, in case the court should decree a sale of the whole tract, out and out, the commissioners were directed to report by metes and bounds, in what parcels the land should be sold; and they shall give their opinion whether it would be most expedient, in case of a sale out and out, to sell the whole tract together or in parcels. And if the court should determine to assign dower in kind, they should report whether it would be best for the heirs to sell the remainder in the tract as a whole or in parcels. There were other enquiries directed which need not be stated.
    In June 1853 the commissioners returned their report. They report against selling the whole land, either all together or in parcels, and against commuting the widow’s dower. They think that amid the inflation *of the currency and uncertainties which harrass the country, it is best for the widow and her infant children, to have a comfortable home, and land enough to guarantee to her at least an adequate and secure support. They have accordingly assigned to her dower; and this includes the mansion house and improvements and one hundred and eighty-seven acres of land, and is laid down on the survey and plat returned with the report. They assigned to Bell, who owned two shares in the land, a tract of one hundred and twenty acres; and there still remained four hundred and seventy acres for distribution in whole or in parcels. The commissioners concluded to divide it into two parcels of equal value. These tracts, the commissioners say, may be sold or allotted to the heirs; the upper tract to four heirs, who may unite in taking it as coparceners; and the lower tract to four, who may take it. They express the opinion, that in case a sale be made of the residue after deducting the land assigned for dower and to Bell, it would be best to sell in the parcels designated as the upper and lower tracts, instead of selling the whole four hundred and seventy acres together. They say that they have been informed that the Misses McCue (Hannah and Martha) prefer retaining their interests without sale, and that the widow., who is the guardian of the infant children, prefers likewise retaining their shares; and they think it probable these four shares could be allotted together, constituting one of the said two tracts; and so with regard: to the other four shares.
    The cause came on to be heard on the 16th of June' 1863 upon the report of the commissioners, which, except as modified in the decree, was confirmed. The assignment of dower in the land to Mrs. McCue was confirmed; and the parties by their counsel suggesting *to the court that it will promote the interests of' all concerned to sell the residue of the tract,, after deducting the dower aforesaid, in three parcels, rather than make an assignment of any particular parcel to any one or more of the heirs, and to make an equal division of the proceeds of the sale among the heirs, A. H. H. Stuart, William H. Harman and Hugh W. Sheffey, were appointed to sell the same in three lots described in the decree, upon the terms specified therein; but with the privilege to the purchaser to pay the whole amount of his, purchase money in cash.
    In July 1863 the commissioners proceeded under this decree to sell the land, when Moses Zirkle became the purchaser of two of the lots, one of 234,% acres at $185 per acre, and the other of 183^ acres at $175 per acre; and he paid the whole purchase money in cash. The other lot was purchased by Bell, who held one-fifth interest in the estate.
    The commissioners returned with their report of sales of the land, a paper signed by Mrs. McCue, as guardian of her two infant children, and all the other heirs, in which they say that being entirely satisfied that the lands belonging to said McCue’s estate sold at the sale by commissioners Stuart, Harman and Sheffey, sold for their full value, they express their approbation of said sales, and their wish that the court shall confirm the same.
    The cause came on again to be heard in November 1863, when the court confirmed the report;' and by another decree a commissioner .was appointed and directed to convey to Zfirkle and Bell respectively the land purchased by them, by deed with general warranty binding the heirs of- John McCue, deceased.
    In this suit the slaves were divided, the administration account was settled, and the whole estate, except *the widow’s dower, distributed; but it is ■unnecessary to refer to these thing's further.
    In September 1871 Alexander H. McCue and Henry M. McCue, infants, who sued by Rilen S. McCue, their mother and next friend, instituted a suit in equity in the Circuit court of Augusta county against the widow and the other heirs of John McCue, deceased, and Moses Zirkle, to review the decrees in the aforesaid suit, and that the sales of the land may be set aside. In their bill they set out very fully the averments of the bill and the answers. They say that the suit was instituted by the widow alone, claiming dower and distribution in the estate of her husband, but asserting no right in the estate; and it was not instituted under the act for the sale of infants lands. They say no witnesses were examined, or facts agreed by the a'dult heirs, before the decree appointing commissioners to make report; they refer to their report, as against a sale; and yet with a knowledge that a partition in kind could be made, and a sale was not for the interests of the parties, yet upon a mere suggestion by counsel, that it would promote the interest of all concerned to sell the land, after deducting the dower, in three parcels, &c., the court decreed the sale of the land, &c. And they pray that the decrees and proceedings in said suit may be reviewed, reversed, and set aside, and the plaintiffs restored to their rights; and for general relief.
    Zirkle demurred to the bill; and also filed a plea that he was a bona fide purchaser of the land; was clothed with the legal title to it by deeds duly executed to him, which he exhibits; and that he had paid in full the purchase money for said lands; that he had been in undisturbed possession of said lands under said deeds since the day of 1863; and *that at the time said deeds were executed and delivered to him, he had no notice of any equitable claim or title of the complainants in and to said lands, or of anything connected with the sale sufficient in law to avoid such deeds. He also answered referring to the proceedings in said suits, and insisting that the court was authorized and justified by the facts to decree a sale of the land in that suit.
    The cause came on to be heard on the 3d •of April 1873, when the court made a decree to overrule the demurrer and review the decrees; and that the decree in said cause made on the 16th day of June 1863, so far as the same provides for the sale of the real estate of John McCue, deceased, in said decree mentioned, and all subsequent proceedings in said suit founded upon and intended to give effect to the sale so decreed be set aside and annulled, so far as they effect the rights or interests of the infant plaintiffs in this cause. And commissioners were appointed to lay off to the plaintiffs each one-tenth of the said land purchased by Zirkle and Bell, &c., &c. And thereupon Zirkle applied to a judge of this court for an appeal; which was allowed.
    Sheffey & Bumgardner, and Tucker & Christian, for the appellant.
    George M. Cochran, for the appellees.
    
      
      Partition -Right of Guardian to Maintain Suit For. - The right of a guardian to bring a suit for the sale of his ward's land as allowed in the principal case is cited with approval in Redd v. Jones, 30 Gratt. 133; and that he is the proper person to bring such a suit is well settled. See 1 Minor’s Inst. 470; Barton’s Ch. Pr. (2d Ed.) 587.
    
    
      
       Judicial Sales — Validity—Facts Warranting — Infants.—The authority of the courts thus to sell the estate of persons under a disability is a purely statutory and not an inherent power. See Faulkner v. Davis, 18 Gratt. 663; Hoback v. Miller, 44 W. Va. 635. 29 S. E. Rep. 1014. For statutory authority in Virginia, see V. C. §2616; Acts 1887-8, pp. 239, 503; Acts 1891-2, p. 551; Acts 1897-8, p. 404. In West Virginia, see Code of W. Va., ch. 84. The opinion iu the principal case is quoted with approval in Roberts v. Coleman, 37 W. Va. 157, 16 S. E. Rep. 486; but criticised in Hull v. Hull, 26 W. Va. 23. See as to the setting aside of judicial sales after confirmation, Barr v. White, 30 Gratt. 531, and note.
      
    
    
      
      Same—Same—Same—As Evidenced by Record.—The principal case is cited with approval, for the rule that the facts as evidenced by the record are conclusive as warranting the sale of infant’s lands, in Lancaster v. Barton, 92 Va. 623; Stevens v. McCormick, 90 Va. 735.
    
    
      
       Decree —Binding on Infants.—“The law recognizes no distinction between a decree against an infant and a decree against an adult.” See Harrison v. Wallton, 95 Va. 725, citing principal case, also, Pennybacker v. Switzer, 75 Va. 688; 1 Minor’s Inst. 507. See in West Virginia, Lafferty v. Lafferty, 42 W. Va. 785, 26 S. E. Rep. 263; Turk v. Skiles, 38 W. Va. 408, 18 S. E. Rep. 561; Dickel v. Smith, 38 W. Va. 635, 18 S. E Rep. 721.
    
   Staples, J.

delivered the opinion of the court.

The first question for our consideration is as to the true character of the suit brought by Mrs. Ellen McCue in the year 1863. It is clear that the bill was not filed • under the statute which authorizes a suit in the *name of the guardian for the sale of the ward’s real estate. It was not so intended, and it would be unjust to all the parties so to treat it.

The bill is plainly a suit for assignment of dower to the widow, and for partition of the realty among the heirs, or a sale, as might be deemed most conducive to the interests of all. The complainant describes herself as widow and as guardian. Although she does not formally sue as guardian, the averments are sufficient to bring her before the court in that character. She sets forth the names of the children; the quantity and equality of the lands; that it would be for the interest of all’ the parties to sell it, either entire or in two or more parcels; she asks that the interests of her infant children may be ascertained and placed under her control as guardian, and that such orders may be entered as may be necessary for a full and final adjustment and settlement of the rights of all the parties in the whole estate, real and personal. In this respect the case is very similar to that of Cooper v. Hepburn, 15 Gratt. 551. In that case objection being made that the bill did not formally aver that it was filed by the complainant in his capacity of guardian, Judge Daniel, speaking for the whole court, said: “But surely this can furnish no sufficient ground for reversing the proceedings, when it is seen that the bill distinctly states his qualification as guardian of the children; details the facts and reasons going, in his opinion, to show that it would be to the interest of the children as remaindermen that the land should be sold and the proceeds properly invested.” Now what is here said very strongly applies to the case before us; and we may fairly consider the original bill of Mrs. McCue filed as well in her capacity of guardian as in that of widow. *It is said that it is not competent for a guardian to maintain a suit for partition. It is difficult to perceive any very good reason why he is not. The guardian has the legal right to the possession of the ward’s lands during the guardianship. He may maintain trespass for an injury to the soil; or even ejectment for its recovery. He may grant a copy-hold in reversion or remainder in his own name. He may have a writ of right of ward, and recover the land and damages, as well as the body of his ward. 2 P. Wms. 122; Truss v. Old, 6 Rand. 556.

In Bacon’s Abridgment it is laid down, that a guardian may make partition in behalf of the infant; and it will bind the infant if equal; for the guardian is appointed by law to take care of the inheritance of the ward. Bacon Abr., Guardian, 415. And in Schouler on Domestic Relations, 472, the doctrine on this subject is thus expressed: “Guardians may assign dower; and it seems the assignment will bind the heirs. Guardians may also institute proceedings for partition. Such proceedings in England should be by bill in equity. In this country the subject is usually regulated by statute.”

These authorities sufficiently show that it is competent for the guardian to institute proceedings in equity for a partition of the ward’s lands. Indeed, the judge of the ■Circuit court has recognized the original bill as a suit for partition. After setting aside the decree of sale under which the appellant claims title, the decree directs a partition of the lands which are the subject of controversy here.

But if it be conceded, that according to strict right, a suit for partition cannot be maintained by a person occupying the position of both guardian and widow, still, if a bill is filed by such person for assignment of *dower, and in the progress of the suit the court, having all the heirs before it, should ascertain that these interests will be protected by a partition or sale, there would seem to be no reason why it should not decree accordingly, instead of turning the parties around to a new suit. It would be simply a decree between defendants. Such an irregularity, if it be one, would clearly not be sufficient to reverse the proceedings and vacate the sale as against a purchaser for value clothed with the legal title.

The only remaining inquiry is, whether the court was warranted in decreeing a sale of the lands, instead of directing a partition.

It must be remembered that the sale took ■place in 1863; that the rights of a bona fide purchaser are involved, a purchaser who has paid the full amount of the purchase money, whose purchase was confirmed by the court; who received his conveyance, and was put in possession of the property. It is held in many states, that such a purchaser will not be affected by errors in the proceedings under which the sale was made. It is the established doctrine of the Supreme Court of the United States, and of the courts of several of the states, that if the court has jurisdiction of the subject-matter, and the proper parties are before the court, rights acquired by third persons under authority of the decree will be sustained, notwithstanding a reversal of such decree.

In Gray v. Brignardello, 1 Wall. U. S. R. 627, 634, the Supreme Court of the United States say: “Although the judgment or decree may be reversed, yet all rights acquired at a judicial sale while the decree or judgment was in force, and which they authorized, will be protected. It is sufficient for the buyer to know that the court had jurisdiction, and exercised it, and that the order, on the faith of which he purchased, %as made, and authorized the sale. With the errors of the court he has no concern. These principles have so often received the sanction of this court, that it would not have been necessary again to reaffirm them had not the extent of the doctrine been questioned at the bar. In support of this view, the court cites the case of Thompson v. Tolmie, 2 Peters’ R. 168; Voorhees v. Bank of United States, 10 Peters’ R. 449; and other cases. See also articles cited in Rorer on Judicial Sales.

These authorities are not cited for the purpose of following or approving the rule they establish, but simply to show the extent to which the decisions of other states have been carried. This court has never given its sanction to the doctrine, that the title of the purchaser is not affected by a reversal of the decree under which the sale is made, nor has it expressly repudiated that doctrine. The question with us must be regarded as an open one.

It is, however, well settled with us, that an infant, as a general rule, is as much bound by a decree against him as a person of full age. He is not permitted to impeach such decree except on the same grounds as a person of full age might have impeached it, such as fraud, collusion or error. 1 Dan. Ch. Pr. 221.

In Williamson v. Gordon, 19 Ves. R. 114, Lord Eldon said: ‘ ‘Admitting the right of the infant to show cause, he cannot do that if the decree would have been right against him had he been an adult. He can show nothing but error in the decree.”

In Pierce’s adm’ors v. Trigg, 10 Leigh 406, 429, Judge Tucker said: “The decree against an infant, though it gives him a day in court to answer, is of the nature of a final decree, and is carried into execution as such; nor is it reversible, but for error or fraud or collusion.”

*Since the revisal of 1849 and ’50, it is unnecessary to insert in the decree a provision allowing the infant a day to show cause: but in any proper case he may, within six months after he arrives at maturity, show such cause in like manner as if the decree contained such provision.”

It is laid down by some authorities, that in suits for partition the infant has no day in court, but is bound by the decree absolutely ; but the better opinion is, that he has the right in such cases to show cause against the decree. This privilege has, however, been taken away by statute in England, and now in suits for partition in the courts of that country no day is given. But in this state the rule seems to be well settled, that whenever the court is asked to sell and convey an infant’s inheritance, he is entitled to an opportunity of making a defence at any time within six months after he arrives at full age. The only exception to this rule is found in those proceedings in equity under the statute for the sale of small inheritances of less value than three hundred dollars. Parker & als. v. McCoy & als., 10 Gratt. 594.

Conceding that the title of the purchaser falls with the reversal of the decree, and that the infant can only reverse upon showing error in the decree, the question still recurs as to the nature of the error sufficient for such reversal as against a purchaser not a party to the suit, who has paid the purchase money and received his conveyance under a decree of confirmation.

According to the English practice, if a mortgage is foreclosed the infant has his day; but if a sale is decreed, instead of a foreclosure, the infant is absolutely bound by the decree, and has no day. And so if the land is decreed to be sold to satisfy judgment creditors, ^'without an account of the personal estate, the purchaser will not be affected by the error.

Neither in the case of a foreclosure, nor a sale under the mortgage, is the infant permitted to unravel the accounts, nor to redeem by paying what is reported as due. See Wilkinson’s adm’or v. Oliver’s representatives, 4 Hen. & Mun. 450.

In Parker et als. v. McCoy et als., 10 Gratt. 594, 605, Judge Dee in delivering the opinion of the court said: ‘ ‘There are strong authorities to show that a fair purchaser is not bound to go through all the proceedings and to look into all the circumstances, and see that the decree is right in all its parts, and that it cannot be altered in any respect. He cannot, of course, be protected against a title not in issue in the cause, nor against the claims of persons not parties to the cause, and therefore not bound by the decree; but it would seem that he has the right to presume the court has taken the necessary steps to investigate the rights of parties, and upon such investigation has properlv decreed a sale.

In Daniel & als. v. Leitch, 13 Gratt. 195, 210, Judge Moncure also speaking for the other judges said: “The purchaser at a judicial sale will not be affected by error in the decree, such as not giving a day to show cause in cases in which a day ought to be given, or in decreeing a sale of lands to satisfy judgment debts without an account of the personal estate. A fortiori, he will not be affected by any imperfection in the frame of the bill if it contain sufficient matter to show the propriety of the decree.

In the case of Walker’s ex’or v. Page et als., 21 Gratt. 636, 643, Judge Christian, in delivering the opinion of the court, said: “The right of an infant to show cause against a decree which affects his interests after he arrives *at age, must be limited to the extent, to show cause existing at the rendition of the decree, and not such as arose afterwards.”

These extracts, and others that might be given, show that while this court has never gone as far as the courts of other states in favor of purchasers at judicial sales, it has, on all occasions, manifested a very strong | disinclination to interfere with the rights ¡ of such purchasers, unless upon palpable and substantial errors in the proceedings, and decrees under which such titles are-acquired.

In the language of this court, in Parker & als. v. McCoy et als., already cited: “It is, of course, to the interest of the infant that the property should bring the best possible price; and it is to the public interest that the real estate of the citizen should be properly cultivated and improved. But who would be willing to purchase the land of an infant at a fair price, or to improve it after he should purchase it, if at a remote period, when the infant. attained his age, he could come in, rip up the whole proceeding, and reclaim the property. The effect must be either to put an end to such sales altogether, or to occasion ruinous sacrifices, still farther impoverishing the helpless and needy object of the court’s protection.”

In Voorhees v. Bank of the United States, 10 Peters’ R. 449, 476, the Supreme court say: “The principles which must govern this and all other sales by judicial process, are general ones adopted for the security of titles, the repose of possession, and the enjoyment of property by innocent purchasers, who are the favorites of the law in every court and bv every code.”

Bearing these principles and rules of decision in mind, we are to consider whether the court, in decreeing the sale of the infant’s land, committed such error *as demands a reversal of the decree and the vacation of the sale. Was it a case for partition exclusively, or might the court, under the circumstances, direct a sale of the different interests of adults and minors? Our statute provides that: “In any case in which partition cannot be conveniently made, if the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject', or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be . an infant, insane person, or married woman, may order such sale, or such sale and allotment, and make distribution of the proceeds of sale according to the respective rights of those entitled.

Under this section, the case must be one in which partition cannot be conveniently made; and it must appear that the interests of the parties will be promoted by a sale of the property. These concurring circumstances are necessary to warrant a decree for such sale. It is not necessary they 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. This is especially true when the proceeding is to defeat the title of an innocent purchaser.

If the report of the commissioners appointed by the court to assign the widow’s dower and partition the land of the infant had said, or even indicated, that such partition could be conveniently made, or that the interest of the parties would not be promoted by a sale at that time, it would be very difficult, by anything appearing in the record, to overcome the weight due to evidence of that character. But I do not understand the report as making any such averment, or containing any recommendation of the kind. The commissioners *'do say it is not best for the widow, or for the interest of all concerned, to sell the whole tract, out and out, altogether, or in parcels. But this statement was made in answer to the proposition to sell the widow’s dower also, and pay her a sum in gross, or the interest on one-third of the purchase money. They, the commissioners, express the opinion that, under all the circumstances, it is best for her and the infant children to have a comfortable home and land enough to guarantee to her at least an adequate and secure support. And they say: “Accordingly we have assigned the widow” her dower, including the mansion house and improvements, and one hundred and eighty-seven acres of land.

The commissioners do not partition the residue of the tract among the heirs according to their respective interests—they do not recommend it—they do not intimate that it could be conveniently done. What they did do was to divide the tract into two parcels of two hundred and forty acres, each equal in value. These parcels to be sold, or one of them to be allotted to four heirs, who may unite in taking it as coparceners, and the other to be disposed of in the same way. Of course this plan was not feasible unless all the parties consented to its adoption. They did not consent to it, and of course it was abandoned. After the assignment of dower, and of David T. Bell’s two interests, there remained only four hundred and seventy acres for division among eight heirs, being about sixty acres to each one. The commissioners clearly saw the difficulty of partitioning a small tract among so many, with due regard to wood and water and places of residence. They were no doubt satisfied it could not be conveniently done, and the division into two tracts was the only plan that could be adopted consistently with *the interests of all the parties. It is impossible to give any other interpretation to the report.

After that report was made and returned, the parties by their counsel suggested to the court, it would promote the interests of all concerned to sell the residue of the tract in three parcels, rather than make an assignment of any particular parcel to any one or more of the heirs. A decree of sale was entered accordingly; and Alexander H. H. Stuart, William H. Harman, and Hugh W. Sheffey, were appointed commissioners to make the sale. The sale was made, and the appellant became the purchaser of two parcels—one of two hundred and thirty-four acres at one hundred and eighty-five dollars per acre, and the other of one hundred and eighty-three acres at one hundred and seventy-five dollars per acre, making in the aggregate the sum of $75,920.62. The adult heirs, including the husbands of those that were married, expressed their entire approval of this sale, their conviction that the land was sold for its full value, and they united in a written request to the court to confirm the sales. Mrs. McCue, the mother and guardian of the infants, joined with the others in making this request. Upon this ratification by all conerned, the purchaser paid the whole amount of the purchase money, and the court confirmed the sale—the learned judge, the Hon. Ducas P. Thompson, expressing his conviction that the land was sold for a fair price. Thereupon a deed of conveyance was executed, and the purchaser placed in possession.

We have here then the report of the commissioners that the land could not be divided; we have the statement of all the parties concerned, that the interest of all would be promoted by a sale; we have the written request of the six adults, and the mother and guardian *of the two infants, that the sale might be confirmed; and we have the deliberate opinion of the distinguished and discriminating judge then presiding, that the land was sold at a fair price: we have all these concurring facts and circumstances in favor of this purchase. There is nothing in this record adverse to this pretension, except the entire loss of the infants’ share of the purchase money. Had the struggle in which we were engaged terminated differently, it is highly probable—nay, it is almost certain —this controversy would never have arisen.

If any proposition can be regarded as well settled, it is, that the propriety of this sale must be tested, and its validity determined, by the circumstances then existing and surrounding the parties. The purchaser can no more be held liable for the loss of the fund bv the results of the war than he would be for its loss from the insolvency of a guardian, or the failure of a bank in which the fund was deposited.

In the opinion just delivered by Judge Christian, he has quoted largely from the observations of this court in Walker, ex’or, et als. v. Page, 21 Gratt. 636, 644. These observations apply with equal force to the case in hand. It is unnecessary, however, to repeat them here. They, in effect, declare that now after the Confederate currency Has perished, that as subsequent events have transpired, it is easy to show that the interests of the infants have not been promoted by a sale of their real estate during the war; and if such considerations could govern the adjudications of this court, then, every such sale in which infants were interested must be annulled. But this is not the true criterion. The only matter for inquiry is: Did the court have jurisdiction of the subject matter; were the proper parties before it; were the proceedings regular; *was the sale proper under all the circumstances then surrounding the parties. If so, there is no pretence for interfering with the title of an innocent purchaser, because in the light of subsequent occurrences the sale has proved injudicious and. unfortunate for the interests of the infant.

For these reasons, the decree of the Circuit court of the. 3d of April 1873, and of the 16th of June 1874, must be reversed and annulled, and the bill of the appellees dismissed with costs.

The decree was as follows:

This day came the parties by their counsel, and the court having maturely considered the transcript of the record of the (decree aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the decree aforesaid is erroneous. It is therefore decreed and ordered that the same be set aside, vacated and annulled; and that the appellant recover against the appellees Alexander H. McCue and Filen S. McCue, next friend of Henry M. McCue, an infant, his costs by him expended in the prosecution of his appeal' aforesaid here. And this court proceeding to pronounce such decree as the said Circuit court ought to have rendered: It is further decreed and ordered that the bill of the plaintiffs be dismissed, and that the defendant, Moses Zirkle, recover against the plaintiffs his costs by him about his defence in this behalf expended: Which is ordered to be certified to the said' Circuit court of Augusta county.

Decree reversed.  