1877. the county court of Rockingham, by Samuel R. Alle

Novem'r

Long

& al.

V.

Weller's

ex'or & als.

Term. baugh, executor of John Weller, deceased, to subject the property of William W. Carpenter to the payment of his debts. Of this property there was a tract of six hundred acres of land, with a mill upon it. After an account of debts had been taken, at the June term, 1872, there was a decree appointing commissioners to sell the land at public sale, upon the terms of enough in hand to pay the expenses of sale and the costs of the suit, and the residue in four equal annual payments, bond with approved security to be given by the purchaser, and the title retained.

The commissioners reported a sale of two parcels of the land; but this sale was set aside. At the October term, it appearing that a part of the land had been sold, it was ordered that a survey be made of the different parcels of the said lands, as well as of that portion yet to be sold, when sold, and a report of the surveys made to the court at a future term, showing the number of acres, roods, &c., in each parcel, and to whom sold.

The commissioners reported six parcels of land sold, describing the sixth parcel as "the mill and buildings, with about ten acres of land, more or less, metes and bounds pointed out on day of sale." There having been an advance bid made for this property, the court set aside the sale and directed the commissioners to re-advertise the mill property for sale again, and when it was put up it was to be started at the price offered in the additional bid.

The commissioners made another report, in which they set out a number of sales of parcels of land to dif ferent parties. They say the mill property and about thirteen acres of land was sold to Mary J. Barley, A. R. Whissen and Peter Long, at the sum of $2,932.63. the January term, 1873, these sales were confirmed, and it was ordered that Samuel Shacklett, the general

1877. Novem'r

receiver, do withdraw the bonds filed in the papers in this case, and collect them as they fall due, and hold the Term. proceeds subject to the future order of the court.

The cause having been transferred by operation of law to the circuit court, at the October term, 1876, a rule was directed to issue against Peter Long, Mary J. Barley, &c., to show cause why the said mill property and land should not be resold for the purchase money. To this rule Long and Mary J. Barley appeared and filed their answer. They say that the property is only valuable as a mill property, and that its value in that particular was the only inducement to purchase it; that no plat of the property was exhibited on the day of sale, or at any other time previous thereto, so far as they knew; that they purchased under the full belief and understanding, gathered from the representations made on the day of sale, and from the fact that a road to the mill had long been used, that said road was a part of the property; that the line of the road ran on the south side of Smith's creek, and that the full and complete control of the water-power of Smith's creek, from the extreme upper end of said tract to a point nearly opposite the mill, was sold with the property; in all which they fear they have been mistaken. And they set out the importance of the road, the line and the water-power to the property. They say they have paid of their purchase money the hand payment of about $150, and the first deferred payment of $700, and that they have erected improvements to the amount at least of $1,500. they insist they shall not be required to pay any more until the title to all the privileges, rights, easements, as well as to the land itself, may be perfected, or if not perfected, that they have an abatement from the purchase price, for the damage to the said property sustained by them in failing to receive all they purchased.

And

Long & al.

V.

Weller's

ex'or

& als.

1877. Novem'r

Long & al.

V.

Weller's

ex or & als.

The case came on to be heard upon the rule on the Term. 24th of November, 1876, when the court held that the answer was not sufficient cause shown, and decreed that a commissioner named do proceed, after advertising the time, terms and place of sale for four weeks, to resell the said mill property and land thereto attached, on the premises, on the terms of $1,500, and all costs of suit and sale, including the costs at law, to be paid in hand on the day of sale, and the balance in two equal payments of nine and eighteen months, with interest from the day of sale, the purchaser giving bond, &c., and a lien retained on the land. From this decree Peter Long and Mary J. Barley obtained an appeal. But before the appeal was perfected, viz: on the 26th of January, 1877, the court modified the decree and directed that unless Peter Long, &c., or some one for them, do pay to A. B. Irick, receiver, all the purchase money now due upon their purchase of the property, and all costs at law and in this proceeding, within thirty days from this date, that then the said commissioner shall proceed, &c., as set forth in the decree of November 24th, 1876.

•O' Ferrall, for the appellants.

William B. Compton and B. G. Patterson, for the appellees.

BURKS, J. The appellants were purchasers at a judicial sale of a small parcel of land with valuable mill buildings upon it. The decree, under which they purchased, retained the title to the property as security for the payment of the purchase money. The sale was reported and confirmed without objection or exception. The purchasers paid a portion of the purchase money, and being in default for the residue, a rule was made

Novem'r

Long

& al.

V.

against them to show cause against a resale of the pro- 1877. perty to satisfy the unpaid balance of the purchase Term. money. They filed their answer to the rule, objecting to the resale on several grounds, and asking for an abatement of the purchase money unpaid. The circuit court deemed the answer insufficient, and by decree ordered the resale. We are to determine whether there is any error in this decree, from which an appeal has been allowed to the purchasers by one of the judges of this

court.

In Virginia, the maxim caveat emptor strictly applies to all judicial sales. The court undertakes to sell only the title, such as it is, of the parties to the suit, and it is the duty of the purchaser to ascertain for himself whether the title of these parties may not be impeached or superseded by some other and paramount title; and if he have just grounds of objection for want or defect of title, he should present them to the court before the confirmation of the report of sale. Ordinarily, objection after confirmation comes too late. Young's adm'r $. Bowyer v. Me Clung & als., 9 Gratt. 336, 358; Threlkeld's v. Campbell, 2 Gratt. 198; Daniel &als. v. Leitch, 13 Gratt. 195, 212, 213; Watson v. Hoy & als., (not yet reported), Virginia Law Journal, August, 1877, p. 473, et seq., 28 Gratt. 698.

These authorities would seem to be a sufficient answer to the pretension set up by the appellants in their answer to the rule for resale, to the effect that at the time they purchased the land and mill property, they believed that the right to the use of the entire road mentioned in the answer was annexed or appurtenant as an easement to the property purchased by them, and that since the purchase they have discovered that a claim has been asserted by a third party, which is probably right, and will deprive them of the

Weller's

ex'or & als.

1877. use of the road, and thus seriously impair the value of the

Novem'r

Term. property purchased by them.

Long & al.

V.

Weller's

ex'or

&als.

This is nothing but an objection for defect of title. The title to the easement is necessarily connected with the title to the land to which it is appurtenant; and whatever the purchasers believed, they must be taken to know that they could acquire by their purchase only the title that the court sold, which was the title, whatever it might be, of the parties to the suit. They purchased at their own risk, and cannot be heard to object for want or defect of title, at least after confirmation of the sale.

What is about to be said in regard to representations alleged to have been made on the day of sale as to the water-power and privileges, will apply also to the representations said to have been made in regard to the road.

The purchasers, in their answer to the rule, further object, that, under their contract, they were entitled to certain valuable water privileges, which they failed to get. This objection is based upon an alleged misunderstanding of the boundaries of the land purchased, and goes rather to the identity of the subject sold than to the title. If they are entitled to any relief on that account, it must be on the ground of fraud or mistake discovered after confirmation of the sale. In such case, the confirmation of the sale would not be an insuperable barrier to relief in the absence of laches, acquiescence, waiver, or other circumstance rendering relief inequitable.

I do not understand the answer as charging or imputing fraud to any one. The respondents do not pretend that the representations made on the day of sale, upon which they relied, as they say, to their prejudice, proceeded from the commissioner who made the sale, or from any party in interest, or indeed from any person having authority to make them. They could not, therefore, have been defrauded by them. I rather take it, that the