#### Parker's heirs. vs. Anderson's heirs &c.

CxIA~cE~r.

Appeal from the Fayette Circuit; JEssE BLEDSOE, Judge.

Case 101.

October 5.

~Fraucls and perjw'ies. Partition of Lands. Lapse of time. Ji~dicial sales.

Will of Jo~ sepli Byers.

l3yers' title t~ the pro~~rt~ at his death.

Judge OWSL~Y

delivered the Opinion of the Court.

B~ his last will and testament, made and published in F793, Joseph Byers, after making some special bequests, gave all the rest and residue of his estate, to his brother, Samuel Byers, and the children of his brother John, then deceased; thaL is, to the children of his brother John, one moiety of his estate, and to his brother Samuel, the. other moiety. After making his will, Joseph Byers departed this life, and his will was duly proved and admitted to record in the county court of Fayette~

At the time of his death, Joseph Byers owned two lots of ground in the town of Lexington, Fayette county, one of which, is known by the number of forty-five, and the other is number four, and usually denominated the stone house lot. The title to neither of these lots was in Joseph Byers, at the making of his will, but he he]d at the time an equity in both lots. The trustees for the Lexington Presbyterian Congregation, who held the legal title to the stone house lot, had contracted with James Tompkins to lease the sa~ne for ninety-nine years to him; and Joseph Byers, before the making of his will, by contract with Humphrey Tompkim, had *446become equitably entitled to the contract,'made with the trustees for the lease. The legal title to the other lot was in John Coburn, but Joseph Byers had also by contract, become equitably entitled to it before the date of his will.

ijalos of the property after Byers’ death.

Purchase from Samuel Byers, and Bod'oy’s claim under it.

The lot number forty-five was purchased by George Anderson, after the death of Joseph Byers, at a public sale made by a sheriff under an execution against a certain Patterson, who was a partner in trade of Joseph Byers at the time of his death, and Anderson afterwards sold the same lot to Samuel and George Trotter. After this, Anderson discovering that there, existed difficulties in the title, he, for a valuable consideration, purchased from the children of John Byers, deceased, their interest in the estate of Joseph Byers, and has since obtained from them deeds of conveyance, and has also procured a conveyance from Coburn, and executed a conveyance of the lot to Samuel and George Trotter, the latter of whom, has also departed this life.

After the death of Joseph Byers, and after his will was admitted to record, Robert Parker, the ancestor of the present appellants, went to Pennsylvania, where Samuel Byers, one of the devisees of Joseph, lived, and purchased from him, and received his bond to convey’ all the interest derived byr him to the estate of his brother Joseph, under his will. The bond was given by Samuel Byers to Robert Parker only, but after the purchase was made, and after the death of Robert Parker, Thomas Bodiey, claiming an equal interest in *the*purchase from Samuel Byers with Parker, and alleging that he had paid a moiety’ or more of the purchase money, exhibited his bill in the Fayette circuit court, for the purpose of being let into the benefit of the purchase, and for (be purpose of obtaining partition of tbe estate of Joseph Byers, deceased, among those interested therein &c. &e. To this bill, the heirs of Robert Parker, deceased, the trustees of the Lexington Presbyterian Congregation, George Anderson and others, were made defendants.

*447the county court,

Itocree of the circ['“li,'30"1.'t directin'* a sale and conveyance &c,

.Reversal of the decrecía ca¿.ey’s

Proceeding* pa8e°-nicrilip rúiorsa^here’ *448Parker’s heirs, their hill for a refiivision.

*447Before tbe bill was exhibited by Bodlcy, however, it appears that by an application to tbe county court, (in which Parker, Bodlcy, Anderson and the Trotters, all, in some degree, participated,) partition of the two lots was made between them; the lot number forty-five being assigned to Anderson, and the stone house lot assigned to Parker and Bodlcy. The partition so made appears to have been acquiesced in for some time by the parties, and the possessor of each lot enjoyed the use thereof, and made improvements thereon as though it was their exclusive property.

• The suit brought by Bbdley came on finally to be heard, and. an interlocutory decree was pronounced, ordering, among other things, an account to be taken, and directing the stone house lot to be sold &c.

The lot was accordingly sold, and George Anderson became the purchaser, at the price of five thousand dollars. An account was also taken in pursuance to the interlocutory decree, and upon report thereof, the court made a final decree directing Anderson to pay Bodlcy two thousand one hundred and ninety-seven dollars and twenty cents, ami to pay the executors of Robert Parker, deceased, one thousand five hundred and eighty-two dollars and fifty-six cents, being the amount adjudged to be due from Anderson, including the price which he was to pay for the lot, by his purchase under the decree. The court also directed the trustees of the Lexington Presbyterian Congregation to convey the lot to Anderson. The conveyance was accordingly made by the trustees, and Anderson has since paid the amount decreed against him.

After this, the heirs of Parker sued out a writ of error to this court, and. the decree of the circuit court was reversed, and the cause remanded with directions for an account to be taken between Bodley and Parker &c. as may be seen by the opinion of this court, reported in 4 Bibb, 102. ”

Upon the return of the opinion and mandate of this court to the circuit court, Bodlev declined further prosecuting, his cause and his bill was dis*448missed. Parker’s heirs then moved the court to bo restored to the possession of the lot, but their motion was overruled. A rule was then obtained by the heirs of Parker for cause to be shown why the sale made of the lot under decree should not be set aside; but it does not appear from the record that the rule was ever after acted on by the court.

Answer of the Trotters.

Answer of the heirs of Anderson.

About the time of obtaining the rule, however, the heirs of Parker exhibited their bill against all the parties to the suit which Bodley had previously brought, and some others, and shortly thereafter, but not until a subsequent term after Bodley had discontinued his suit, obtained an order of court, setting aside the dismission of Bodley’s bill and reinstating the same on the docket. The court also, at the same time made an order consolidating the suit of Bodley and that brought by the heirs of Parker.

Parker’s heirs, in their bill, set up, through the purchase of their ancestor from Samuel Byers, a claim to a moity of the estate of Joseph Byers deceased; insist that Bodley is entitled to no interest in that purchase, and rely upon the decision of this court, in the suit brought by Bodley, as conclusive against him. They contend that no regular partition of the lots, between those entitled to them under the will of Joseph Byres, has ever been made, and ask a redi vision, and that an account of the rents &c. accruing upon the lots, be taken, and that a conveyance or conveyances, be decreed for a moity of the lots to them &c.

Samuel Trotter and the heirs of George, he having departed this life, insist upon the partition of the lots, as made through the county court, and the acquiescence and confirmation of the parties thereunder, and rely upon their legal title, derived through Coburn, to protect them in the possession of the lot number forty-five, upon which they allege they have put large, lasting, and valuable improvements.

The heirs of George Anderson, (he having also departed this life) also rely upon the partition first made, connected with the title derived through Co-burn, to protect the possession of the Trotters to *449lot number forty-five; and they rely, and insist upon the purchase and payment of their ancestor under the decree of the court in the suit brought by Bodley, and the conveyance made in pursuance to the order of the court in that case, by the trustees of the Lexington Presbyterian congregation, to protect them in the possession of the stone house lot, upon which they allege their ancestor has been at great expense in putting lasting and valuable buildings. j

Bodlcy’s answer.

Becree of thfe circuit court, dismissingthg bill of Parker’s heirs, *450and by Bodley’s consent, his bill again dismissed.

*449Bodley does not controvert the right of'Anderson to the stone house lot. He repeats the statements made by him in the bill which he exhibited, and on the hearing of which the lot was decreed to-be sold; and although 'the decree was reversed by this court, and by that reversal he was decided not to be entitled to a decree for any part of the real estate of Joseph Byers, deceased, under the purchase made by Robert Parker from Samuel Byers, he insists that it was not on the ground of any defect of justice in his claim the decision was made, but on the ground, that the contract between him and Parker, in relation to that purchase, came within the provision of the act of the Legislature against frauds and perjuries; and he now contends, that as Anderson has obtained the legal title under the decree in that suit, he ought not to be disturbed in his purchase iñ a court of equity, and that the amount received by him from Anderson under that decree, is not more than sufficient to reimburse him the money which he has advanced, under his contract with Robert Parker, in relation to the purchase from Samuel Byers, and the amount expended by him, under that purchase, in relation to the estate of Joseph Byers deceased.

Parker, who is a joint executor with Bodley of the estate of Robert Parker deceased, also answered the bill, but his answer contains nothing worthy of being particularly noticed.

The suit of Parker’s heirs against Anderson’s heirs &c. and that of Bodley against Parker’s heirs &c. both came on to be heard at the same time, and m the case of Parker’s heirs against Anderson’s hems *450&c. the court decreed the bill to be dismissed, and Bodley not desiring an account to be taken in the suit brought by him, by his consent his bill was also .dismissed.

The court cannot reinstate a cause which had been dismissed at a previous term. Such an order of reinstatement gives the court no power over ibe case.

.Partition made by proceedings in ■ the county court, though informal, having been just, and long acquiesced in, njul improvements made in faith thorc■of — affirmed.

From the deecrec in the case of Parker’s heirs against Anderson’s heirs &c. the heirs of Parker appealed.

The appeal having therefore been taken by the lieirs of Parker to the decree dismissing their bill only, it cannot be necessary, in reviewing that decree, to examine the correctness of the decree which dismissed the bill of Bodley. We would however, barely remark, that the suit of Bodley was not in a situation in which the court could regularly enter upon the consideration and decision of the merits of the claims set up by Bodley. After that cause had been decided by this court, and remanded to the court below, there bad been a discontinuance of it in the circuit court, and it was not until a subsequent term after the discontinuance was entered, that the court made the order setting aside the discontinuance, and again directing the cause to be. placed upon the docket. In making that order, therefore, the circuit court most clearly transcended its lawful power, and cannot have thereby derived any authority to adjudicate upon the merits of the matters drawn in contest in that suit.

And if the suit had not been abandoned by Bodley, it would have been proper to have stricken his cause from the docket, as having been improvidently and illegally before the court.

With respect to the lot number fertv^hve, which is held by the Trotters, there is evidently no reason to complain of the decree which was pronounced against the heirs of Parker. The Trotters hold the legal title under a fair and bona *fide*purchase, for a valuable consideration, made after there bad been a division of the lots belonging to the estate of Joseph Byers deceased, through the orders of the the county- court of Fayette. That division and partition was not, it is true, made in regular and ■due form of law; hut it is apparent from *the*record, *451tliat, no injustice was done to any of the parties inr forested, and that it was assented to, and approved by both Bodley, and the ancestor of the heirs of Parker, one or both of whom held the interest, now claimed by Parker’s heirs, of Samuel Byers in the estate of Joseph Byers, ft would therefore, be palpably unjust, under these circumstances, for a court of equity to interpose and disturb the partition, honestly made, and long acquiesced in by the> persons interested, and to compel the holder of lot -number forty-five, to surrender the legal title, fairly obtained, merely because all the formalities of the law were not complied with in making the original partition. It should not, and cannot be done, consist-, ently with conscience, or the principles or usages of courts of equity.

Reversal of *;i*decree ordering the sale of land does not effect the title acquired by the purchaser.at the sale.

Nor arc we of .opinion the court decided incorrectly in refusing to compel the heirs of Anderson to surrender the title of the stone house lot, to the heirs of Parker. That title we have already seen, was obtained by George Anderson, in his lifetime, under the decree of a court of equity, in pursuance to a purchase fairly made, in obedience to the man-. Rate of the court. The heirs of Anderson must,, therefore, be admitted not only to hold the legal title to the lot, but the equitable title also, as sanctioned by the decree of a court of competent jurisdiction. The decree under which both the legal and equitable title was derived, it is true, has since been reversed by the decision of this court; but neither from analogy to legal proceedings, nor the principles and usages of equity, can the reversal of the decree under which the. lot was sold, and the title conveyed, authorize a court of chancery to decree a reconveyance of the title so-obtained. The doctrine is well settled at law, that estate sold under a writ of *fieri facias,*will be-retained by-the purchaser,, though the judgment upon which the execution issued, may be afterwards reversed; and the rule is the same in equity, where land is sold under the decree of a court of equity, and the decree- is afterwards reversed, After the reversal of a judgment at law, or the decree of a court of equity, the person prejudiced by the decree, is entitled to the *452proceeds of the estate sold, either under execution upon the judgment, or in obedience to the decree, and it would, no doubt, be competent for a court of law or equity, to compel restitution of the money, for which the estate sold. But both law and equity, guards with, great circumspection, the interest derived by purchasers under the process of courts of law, or the decrees of courts of equity, and unless there be unfairness in the transaction, the title which the purchaser acquires, either by the sale of an officer acting under a *fieri facias*at law, or the sale of a commissioner, acting under the decree of a *court of*equity, will never, upon the reversal of a judgment or decree, be djsturbéd.

Rule is the samo whether the purchaser be a party to the judgment or decree or a stranger, and the reversal affects in neither case.

Sales of the lands of infants under an erroneous decree or judgment are not affected by the reversal of the der pisions.

, This rule was, in argument, admitted to he in the general correct, but it was attempted to limit its application to purchasers who are neither parties nor privies to the judgment or decree under rvhich the sale is made'. The reason for such a limitation of the principle, is not, however, perceived by us, and we have met with no *adjudged*case, either *at*law or equity, wherein any such exception to the rule has been made. The parties to a judgment or decree, are equally, with all others, at liberty to bid and purchase property, exposed to sale under the authority of á judgment or decree, and there is the same reason for protecting the interest acquired by a party, under a purchase, as that of a stranger.

But if it be true, that parties arc not excepted out of the rule, it was contended that decrees prejudipial to infants, should be; and as some of the heirs of Parker were infants when the sale was made under the decree, to Anderson, it was insisted, that upon the *reversal of that decree, they*ought to be restored to their right to the lot, as though the decre.e had never been pronounced.. Whether any of the parties ip a decree, be infants or not, there is, however, the same necessity for guarding and protecting the interest of purchasers under decrees, as if they were adults, and we know of no principle that can authorize restitution of lands to infants, when sold by the decree of a court of competent jurisdiction, that would not apply with equal pro ■ *453pi'iety to persons of full age. If there beany hardship in the rule, it results from the error of the court, and it is perhaps better, find more to the interest of suitors in the general, that the hardship should be borne by the party to whose prejudice the may be, though an infant, than that others should be deterred from buying under the decree of a court of competent jurisdiction, from an apprehension of being deprived of their purchase by some pnisjudgment in the court pronouncing the decree. ’

No party to ^latent eqUityt0tho land ordered to be sold, to th^rev'orsal*1 of the decree,

Petition for a rc-hearing.

Besides, when property is decreed to be sold, by a court of competent jurisdiction, the thought is not to be indulged that either party to the suit has a latent equity to the thing, so that after a sale and conveyance under the decree, the purchaser must be understood to occupy the attitude of a *bona fide*purchaser, for a valuable consideration, not liable to be overreached by any equity to which the parties to the suit might, by a reversal of the decree, have been entitled, if there had been nq sale of the property.

Upon the whole, we perceive no error in the decree, and it must be affirmed with cost.

Mr. Wickliffe

*moved, the court for a re-hearing, on the following*petition,

The counsel for Parker’s heirs, respectfully asks of the court, a re-hearing of their case with T. Bodley and others, and trusts, that ■a more intimate acquaintance with the facts developed in the two volumes of records, will' show, that they conduce to a contrary result.

Your petitioner is the more confident in the hope, from the fact, that he perceives that several of the matters of record, on which he most confidently relied, are overlooked by the court, and in some respects, as he humbly conceives, misunderstood.

The court seem to treat the setting aside of Bodley’s dismission as a nullity, and to consider that it was done on the motion of Parker’s heirs, when the order shows on its face, that Bodley had theretofore made his motion to rescind the order, and the court *454Lad failed to decide on bis motion. Bodley, and not Parker, moved to set aside the dismission, and the record shews that Parker did not object to it. Parker not objecting, and the court and Bodley acting, surely place.s Bodley’s cause, as to all the world, for trial. The court made the order and Parker assents, so that consent cures error; ancl the court consolidated and made the two suits one, and that the bill of Parker shall stand as a cross bill. To this, Bodley neither objects in the the inferior, or this court; and if there were error or irregularities, it is surely not, in the attitude in which the cause comes before this court, the subject oí animadversion to the prejudice of Parker,

Petition for a re-hearing.

If tire court erred in re-instating Bodley’s suit, it was on his motion, and none but Parker could complain. The petitioner therefore, thinks, that so much of the opinion as decides Bodley not before the court, is incorrect, and should be revised.

The court then state, that George Anderson was a purchaser under a decree of a court of competent jurisdiction, and relying on that decree, should be protected. As a general principle, this may be correct, but your petitioner can but say, that it is most alarming to society, that such shall he the rule in relation to infants, and he still hopes that a more deliberate opinion will reverse the rule and extend to infants that protection, which he thinks the wisdom of ages has sanctioned. It is true, that the court say, no case can be shown where an infant has stood in a more favorable or better situation than adults. The counsel can only reply to this remark, that all the hooks allow the infant time, after he comes of age, to set aside the decree, and he entered the cause most confident that this single rule, so well known, and so often required by this court, was sufficient. He is taken by surprise, by this remark of the court, and is here without books; but on the other hand, he will ask the court, if there is a case in chancery, where an infant’s estate has been sold on a reversed decree, that a chancellor has dismissed him without his property or its price, before this case. But he hopes that abundant *455cause will be found in the record itself, not to treat Mr. Anderson as a purchaser, under a decree, relying on the faith of the decree, as the court supposes. But that he is a purchaser at private sale ■and bargain with Bodley, not only contemning but appealing from the opinion and decree of the judge.

Petition for a re-hoaring.

In sheet 22d, your honors will find the decree directing the sale at six months credit. This decree is entered in June term 1809; and in July, a continuation of the same term, the commissioners report that they had sold the house to George Anderson, but he had refused to give bond and security agreeably to the decree. The court take no notice of the sale, except to decree that Anderson should pay, on or before the 18th of October, and that the trustees should make a deed.

Anderson prayed an appeal.

In the month of October following, Bodley and Anderson entered into an agreement, (see it in page 109,) by which Bodley released to Anderson all the interest he had in Joseph Byers’ estate, except Gallagcr’s bond for one hundred and twenty-five acres of land in the State of Ohio. Anderson covenants to convey to Bodley a house and lot on Mulberry street, between the lots of Robert Barr and William Houston &c.; and to assign a bond for'out lot, 85, 4sc. and to release Bodley from all accounts on the books of Joseph Byers, and to indemnify him against debts &c. and Bodley covenants that so soon as Anderson shall pay, or secure to be paid, to the executors of Robert Parker, $1582 66, he would procure to be executed from said executors, a release to said Anderson, and also a release from the Presbyterian Congregation.

Now here is no execution of the sale; no declaration to that effect. But the parties, refering to the decree, make a bargain. Anderson does not regard, •the sale; he does not rely on it, or the decree, for a title; but solely upon the responsibility of Bodley. *He not only takes -Bodley’s*release, but he gives *Bodley one;*he *not*only takes *Bodley’s covenant,*that the *456*congregation shall malee cl deed, hut that Parker shall make a release.*Why, if he looked to th,e decree; why if he were a purchaser, not coerce the release from the Presbyterian Congregation? Why, *if Bodley*thought him bound, *give*his bond for a deed from both Parker and the trustees? The fact was, that Anderson would not comply with the decree; lie knew he could reverse *it;*Bodley knew so, and Anderson would not trust the decree; and Bodley, to stop his appeal, takes goods in payment, and guaranties the title. This is most obvious; and can it be possible now, that Anderson, who refused compliance with the decree, who knew the decree was not worth a farthing, but who bought of Bodley, relied upon Bodley, took Bodley’s obligation that both Parker &c, should convey, when he paid, shall now have the shelter extended to a fair purchaser, who had, under the faith of a decree, laid out his money? It is most sanguinely hoped that your honors will think otherwise.

Petition for a re-hearing.

That these men understood each other, and that the reliance, upon its face, is an after thought, is further illustrated by attending to dates. The deed of the trustees bears date the 6th of October, 1809. But, strange to say, this important instrument is not witnessed, and is never acknowledged until February, 1813. How happens this? May we not deny the existence of this deed until February, 1813? If the date is a true one, where was it for nearly four years?

But an attention to the time of filing the record in the first case, will explain a great deal. The copying of the record took some time; and the record is filed at the April term, 1813. The presumption is strong, that both Bodley and Anderson had ascertained that Parker’s heirs intended to prosecute a writ of error; and hence the deed, recorded in February, but dated so as to reach back to October, 1809. As Bodley and Anderson took no testimony to prove that the deed bore the true date, this presumption is inevitable.

I think I have now shown, that Anderson is a purchaser from Bodley, Indeed, I ¿bought that *457that fact could not have escaped the attention of the court. For in the inferior court, the reliance was mainly on the fact, that Bodley was an executor, and had a right to sell. Indeed Bodley sets up this power himself.

Petition for a «/-hearing,

If, then, I have shewn from this record, that Anderson acquired the deed from and through his contract with Bodley; that he continued to hold, until the hour of death, Bodley’s covenants, not Only for the title of the trustees, but Parker’s also;' 'that his heirs and executors have retained it, and now hold jt on Bodley, I trust I have removed every difficulty growing out of the supposed sale under ¡the decree of a court.

It now remains to show, that under no rule whatever, can Anderson be protected. ,

First: suppose him to he protected as a purchaser under the decree, he certainly must stand in all relations of a purchaser without notice. He had not, when this writ of error was sued out, paid the purs chase money, and in this view he is not protected. But contracting with Bodley, surely there is no pretence for the plea of a purchase without notice. By his contract, he only got Bodley’s interest. He was to get two other deeds — the one from the trustees, the other from Parker. He was to pay Parker. He has personal security that he shall have these titles. This covenant is not cancelled; it is not performed when Parker sued out his writ of .error, and apart of the money is unpaid. Without other notice, can he protect himself/1 Surely not. But he had notice of Parker’s title. He knew they contested the claim of Bodley, and he guarded against loss, by taking Bodley, not the court, as warrantor against their title.

Thus it seems to your petitioner, that upon no principle applicable to a purchaser of record, or upon individual contract, can he be protected.

Your petitioner can but implore your honors to review this case; not only because of the great injuries his clients sustain, but the certain evils tb#t must result from principles settled by it. v

*458Petition for a re-boaring„

By the decision, if a fraudulent plaintiff procure a decree, and order of sale, and a sale is effected, and the money paid over, the infant is ruined, without redress. Perhaps the world could not furnish a stronger instance of the danger to all infant’s estates than the present. The purchaser here was the tenant of Parker long before his death; he continued to be such. Bodley was executor, and as such, had possession (as must be presumed,) of every paper belonging to the estate. The children of Parker are all infants, helpless and unadvised, until the executor and tenant strip them of their patrimony, for a mere pittance; and even that pittance withheld. It is vain to speak of the answer by guardian; the accounts are settled; the accounts are furnished *by Bodley.*Every thing, save the answer, is between Bodley and Anderson, until the daughter marries; when the decree is reversed, and Bodley’s claim to the property, with all his means to manifest a fair or a fraudulent one, rejected.

The court are especially invited to attend to what decree is reversed. It is not the final decree between Bodley and Parker alone, but the decree between Parker, Bodley and Anderson.

The first decree was, that commissioners, Morrison &c. should sell. The commissioners report, that they have made no sale; that although Anderson bid, he failed to give bond. Then, without a Cross bill, without a motion, the court decree, that Anderson shall pay the complainants *$1,582*56— this without aboncl to pay, andBodley another sum. This decree is reversed in toto; what decree then has Parker? What has Anderson? Nor ought it to escape observation, that this whole business about selling the property, is got up between Bodley and Anderson. There is no bill against Parker’s heirs suggesting the necessity of a sale; simply a prayer for a conveyance of an undivided or divided moiety. An *ex parte,*an extraordinary order, is made to sell the lot. No sale is made under the order; and on the final decree, the trustees are decreed to convey the lot to Anderson, who is no complainant nor petitioner, but a contemner of such- erroneous *459jproceéciing, until Bodley consents to make a barter of property with him, and he finds that, as to the pittance to- go to the benefit of Parker’s estate, Bodley can control that too;- that he can and will arrange it in- doubletts, of a- little cash, a little improvements and a little- tape, and a few *nut 'megs.*Against this most erroneous and unjust proceeding, these infants have appealed to the appellate-court of their country; the court reverse the decrecí against them; but tell them this is all you can.get; after expending nearly the whole of the pittance you have received for patrimony, to expose the transaction successfully, we dismiss you out of court, and, com: pel you to pay costs.

Petition for a re-hearing.

Surely the court will review this part of the opinion, The lot, in equity, is Parker’s or its price- is. The bill prayed for the appropriate relief. Anderson and Bodley were both before the court below.. Anderson’s heirs in their answer, pray that Bodley may be decreed to pay, if Bodley received the price, which he did; if not in money, what he apd Anderson would pretend is equivalent to it. He owes precisely that much to some body. You say he is not entitled to the lot, You direct. Parker, to account with him, but h,e declines the account and dismisses bis bill. Parker’s, heirs file their cr.oss bill, He still exhibits no other account than that settled in the former decree. Are not Parker’s heirs entitled to the amount for which their- lot sold, either by Morrison &c. or by Bodley? if the court confirm the sale, then $5,000; if you say that Bodley as executor,. might' sell, Parker’s property, then to its reasonable value, at the time of the sale., against Bodley as executor, or against Anderson, or against, some one, or some how?

It never can h& t-hat such is the law and equity, of this land, that infant’s estate can be thus wrested from them, and they left remediless. This is a leading case, a case of the first impression, and the counsel thinks demands a revision. *

The opinion, though able, and evincive, of the. great desire of the judges to do right, yet it does not, in the opinion of the counsel, take the best- view *4600f the record; nor does it sufficiently dispose of the cause. The errors assigned, and the bill, call for either a land or a money redress against Bodley and Parker’s executors, or against Andei’son. The court not answered tin; complainants in their claim for an indemnity in money, if they do not get their estate back.

July 1, 1828.

Petition fora 9'

Statement of o^which'the re-hearing ivas granted,

If a new trial is granted, these points, as well as the main question, can be better matured; and if the unfortunate Parkers are to lose the property without any equivalent or redress whatever, the court will have manifested its patient desire to do them justice, and afford to them satisfactory reasons why, if the land is not theirs, they cannot get its value; whether it is upon the sale made by Bodley, as executor, or on the sale made by the commissioners, that the sale is affirmed.

*On this petition a re-hearing was granted, and the case re-argued,*

Judge Owsley

delivered the Opinion of the Court on the rehearing.

Understanding the bill of Parker’s heirs to have been drawn with no other aspect, than *"° rccover ^1C i’1 contest, and obtain an account °f the rents and profits, it was not thought proper, when the case was formerly under advisement, to do more than discuss the right of the complainants to a decree for the lot. After the opinion was rendered, however, the counsel of Parker’s heirs, conceiving that too limited a construction had been put upon the bill, and that if the lot be not recoverable by the heirs of Parker, they are entitled to an account for the price for which it was sold to Anderson, presented a petition in which was solicited a rehearing of the cause, as well on the points discussed in the former opinion, as on the further point in relation to the right of the complainants, to an account for the price of the lot. The petition suggests some inaccuracies which in point ol‘ fact, it is supposed were inadvertantly committed by the court in the former opinion, and which it seems to be apprehended by the counsel might produce a different result if corrected.

*461heirs ombraoeel their e onty"andnot the proceeds °f thejudithereforeTM"’ their claim to the money is edbP1 fhe^de crco;

WicMiffe, for appellants; *Chinn,*Crittenden, and *ffaggin*and Loughborough, for appellees.

The petition had the attention of the court, and after again adverting to the record, every material fact was found to have been formerly correctly understood, and though in some immaterial points, the record may not have been as accurately in the opinion, as it might possibly have been, no inaccuracy was perceived which could produce any change in the conclusion to which that opinion came on the points therein discussed and decided.! Entertaining however, some doubts, whether vs had not mistaken the import of the bill in supposing that it had not drawn in question any claim for the price of the lot, by the heirs of Parker, a rehearing was ordered on that point only, without allowing the principles decided in the former opinion to be further discussed or contested.

The argument has been had on that point, and after the most mature consideration, nothing is discovered to change our first impressions, as to the object and import of the bill. When taken altogether, it must be admitted, that the allegations of the bill, haveproduced.no little difficulty in the minds of the court, in coming to a satisfactory conclusion; but with every disposition to indulge the most liberal construction, we have been unable to discover any thing in the bill which can warrant the inference, that any claim for the price of the lot, was intended to be drawn in question. The result of this construction of the bill, is, that the dismission of the bill cannot prejudice the right of Parker’s heirs, if any they have, to prosecute any other suit for the price of the lot.

The former opinion of this court, must therefore, stand unaltered, and affirmed.