Statement of the Case.

principal of the debts in the said sixth lien, all of which principal is owned and controlled by the petitioner except $907.67. On May 25, 1885, this petition was considered, its prayer for relief denied, and the decree of January 5, 1884, confirmed. Stuart then moved the court to quash and discharge the rule awarded against him on a previous day of the term, which motion the court overruled; and thereupon, by leave of the court, he filed an answer to the rule; when a decree was rendered finding due from Stuart on account of the purchase money for the said sale, the sum of $160,212.06, with interest thereon from May 12, 1885, for the payment of which a decree was rendered against him, and that unless within thirty days from that date he should pay the amount decreed against him, the commissioners should proceed, upon proper notice, to resell the property heretofore sold in the cause and bought by him, at publi auction, to the highest bidder for cash. From this decree Stuart prayed an appeal, which the court refused to allow "because the decrees in this cause fixing the rights of the parties, determining the amounts, dignities, and priorities of the debts, and directing sale of the property, were all entered more than five years ago, and the decree of January 5, 1884, was simply explanatory of a former decree."

Subsequently, on July 2, 1885, a petition for an appeal was presented by Stuart to Mr. Justice Harlan of this court, praying an appeal which was allowed, from the decree of January 5, 1884, compounding the interest on the debts theretofore reported in said cause against the company as of October 15, 1875, and directing the commissioners, in distributing the proceeds of the sale of the company's property, to pay interest upon the interest on the said debts as of the date last aforesaid, and from the decree rendered May 25, 1885, rejecting the petition for relief from the decree of January 5, 1884, and directing a resale of the property. The errors assigned are nine in number, but may be reduced to two:

First. That the decree of January 5, 1884, is erroneous in aggregating all the principal and interest of all the debts reported against the White Sulphur Springs Company as of the 15th day of October, 1875, as stated in said Commissioner

Citations for Appellees.

Mathews's report, and making said aggregate an interest-bearing fund as of that date. And in reference to this it is stated that "the court, by its decrees of April 28, 1875, and of May 4, 1878, had adjudicated just how much of the interest on these debts should bear interest and from what time, viz., $36,000 of the Singleton debt from April 28, 1876; one year's interest on the Erskine debt from October 15, 1868; and the interest on the S. C. Beard debt of $907.67 for the years ending October 15, 1868, to October 15, 1877, subject to certain credits, and gave special reasons therefor; and it was error in the court to reverse or modify the adjudication so made, especially after your petitioner had become the owner of liens affected by said adjudication and the purchaser of the property, with the right to use said liens in payment therefor, relying upon the adjudication aforesaid, and as the same had been adjudicated" in accordance with the decree of March 1, 1882.

Second. The decree of May 25, 1885, is erroneous in overruling the motion to quash and discharge the rule for a resale, and in decreeing a resale of the property upon the rule after the court had parted with the title thereto, and had conveyed the property to the appellant, retaining a vendor's lien in the deed for the unpaid purchase money.

Mr. E. B. Knight for appellant cited: Ballard v. Whitlock, 18 Grattan, 235; Clarkson v. Read, 15 Grattan, 288; Glenn v. Blackford, 23 West Va. 182; Wiswall v. Sampson, 14 How. 52; Story v. Livingston, 13 Pet. 359; Lightfoot v. Price, 4 Hen. & Munf. 431; Genin v. Ingersoll, 11 West Va. 549; Lamb v. Cecil, 25 West Va. 288.

Mr. John E. Kenna and Mr. Alexander F. Mathews for appellees cited: Fleming v. Holt, 12 West Va. 143; Ruffner v. Hewitt, 14 West Va. 737; Sneed v. Wister, 8 Wheat. 691; Koshkonong v. Burton, 104 U. S. 668; Railroad Co. v. Turrill, 101 U. S. 836; Holden v. Trust Co., 100 U. S. 72; Goddard v. Foster, 17 Wall. 123; Cromwell v. Sac County, 94 U. S. 351; Hemmenway v. Fisher, 20 How. 255; Perkins v.

Opinion of the Court.

Fourniquet, 14 How. 328; Mitchell v. Harmony, 13 How. 115; Simmons v. Garrett, McCahon (Kansas), 82; Reeside v. United States, Devereux C. Cl. 216; Young v. Godbe, 15 Wall. 562; Burgess v. Seligman, 107 U. S. 20; Bickman v. Cross, 2 Ves. Sen. 471; Binnet v. Edwards, 2 Vern. 392; Bacon v. Clark, 1 P. Wms. 478; Turner v. Turner, 1 Jacob & Walker, 39; Brown v. Barkham, 1 P. Wms. 652; Astley v. Powis, 1 Ves. Sen. 495; Raphael v. Boehm, 11 Ves. 92; Dunbar v. Woodcock, 10 Leigh, 628; Requa v. Rea, 2 Paige, 339; Harding v. Harding, 4 Myln. & Cr. 514; Clarkson v. Read, 15 Grattan, 288.

MR. JUSTICE MATTHEWS, after stating the case as above reported, delivered the opinion of the court.

The appellant cannot justly complain of the decree for a resale on the ground that it was rendered upon a rule to show cause. It does not appear that he was or could have been prejudiced by the summary nature of the procedure. He had full opportunity to answer, and was heard upon all the matters of defence, both in his answer to the rule and his petition for a rehearing of the decree of January 5, 1884. All the equities to which the appellant conceived himself entitled were fairly and fully before the court. No rights of innocent strangers had intervened, although the appellant had conveyed his title to the White Sulphur Springs Company. That company acquired its interest pendente lite, and with full notice from the record that the purchase money was in part unpaid, and that there was a subsisting lien reserved as security for its payment. The action of the court was simply to enforce its own decree against a purchaser from itself to compel compliance on his part with his contract. The cause was open and pending, awaiting a final decree distributing the proceeds of the sale, in which no further step could be taken until those proceeds were paid into court in compliance with its orders. For that purpose the court had control of the title to the real estate sold by virtue of the decree for sale, and the reservation of a lien for the unpaid purchase money expressed in the deed.

Opinion of the Court.

There was no reason for a resort to an original bill; the most suitable and convenient practice was to enforce the obligation of the purchaser in the same cause by a supplemental proceeding, and it was within the discretion of the court to adopt as the proper method in this case the form of a rule to show cause.

Such is the clear implication from what was said by this, court in Koontz v. Northern Bank, 16 Wall. 196, 202: "If the court was deceived by the report of the receiver or master, and the purchaser participated in creating the deception, it could undoubtedly, at any time before the rights of innocent purchasers had intervened, have set the whole proceedings, including the deed, aside. But after the rights of such third parties had intervened its authority in that respect could only be exercised consistently with protection to those rights."

The rule is thus laid down in 2 Daniell's Chancery Practice, 1282, c. 29, § 1: "According, however, to the present practice, a more complete remedy is afforded against a purchaser refusing without cause to fulfil his contract; for the plaintiff may obtain an order for the estate to be resold and for the purchaser to pay, as well the expenses arising from the non-completion of the purchase, the application, and the resale, as also any deficiency in price arising upon the second sale. This order was made by Lord Cottenham in Harding v. Harding, 4 Myln. & Cr. 514, after consultation with the other judges of the court; and although in that case the purchaser was a defendant in the cause, it does not seem that that fact was considered as necessary in order to enable such an order to be made." In Campbell v. Gardner, 3 Stockton (11 N. J. Eq.) 423, 425, it was held that after a sale upon an execution out. of a court of chancery, and a delivery of the deed, the court may, upon a proper cause made, open a sale upon a petition, and it is not a valid objection to this course that the deed has become a matter of record. If a resale is ordered, the court may require the first purchaser to release to the purchaser on the resale all the title he may have acquired, so that the title may stand upon the record wholly disembarrassed. See Conover v. Walling, 2 McCarter (15 N. J. Eq.) 173.

Opinion of the Court.

As the court below committed no error to the prejudice of the appellant in the mode of the procedure, we have to consider whether it disallowed any substantial equity to which he was entitled. The equity of the appellant, then asserted and here renewed, arises upon his construction of the orders and decrees of the court. The decree of March 1, 1882, upon the authority of which the deed was executed and delivered to the purchaser, and which directed that a lien should be reserved therein for the unpaid purchase money until the same is fully paid off and discharged, also directed the commissioners to settle with the purchaser upon his application, so far as the bonds for the purchase money had already matured, or as the same should thereafter mature, "by crediting upon the said bonds the amounts to which the said William A. Stuart is entitled to credit for the liens held by him, as recognized by the previous decrees of this court establishing the order and priority of liens, and by receiving from him in cash so much of the amount of said bonds as may be going to other lien holders." And the commissioners were "also authorized to cancel and deliver to said William A. Stuart any one or more of his said bonds, whether the same have matured or not, on being satisfied that the said Stuart is then holder and owner of all the claims payable out of the proceeds of such bond or bonds."

It appears that in pursuance of this authority, the commissioners of sale, on October 20, 1883, received from Stuart certain securities designated by reference to the list and classification contained in the master's report of April 21, 1876, specifying the amount of the principal sum represented by each, but without any calculation of interest, or any statement of the aggregate amount which on account thereof was to be credited on the bonds of the purchaser given for the purchase money. The language of the receipt given by the commissioners is: "Received of W. A. Stuart the above securities, which are applied first to the discharge of the three purchase-money bonds of said Stuart first falling due, given for the Greenbrier White Sulphur Springs property sold by the United States District Court, at Charleston, the said bonds