#### Fairfax v. Muse’s Executors.

Argued Dec. 27th, 1813.

1. Appeal — Estoppel from Relying on.* — Although an appeal once allowed cannot be regularly dismissed from the appellate court but in the mode prescribed by the statute; yet the party obtaining- it may, by his express consent, or by acts indicating such consent, estop himself from objecting the pendency thereof, and may by such acts or consent with the concurrence of the adverse party, restore the jurisdiction of the court below.

2. Same — Same.—what acts of an appellant, who fails to prosecute his appeal, are sufficient to estop and preclude him from relying on the pendency thereof.

3. Judicial Sales† — Setting Aside. — Under what circumstances, a sale of land by commissioners, in obedience to a decree in Chancery, ought not to be set aside.

This was a suit in the Superior Court of Chancery for the Staunton District, in behalf of the executors of Battaile *Muse against Ferdinando Fairfax and others, to foreclose the equity of redemption in certain lands mortgaged by Fairfax to Muse in his life-time. The Chancellor having made an interlocutory decree, and granted an appeal in vacation, which was dismissed by the Court of Appeals as improvidently allowed ;(b) and the cause being remanded for farther proceedings ; a decree was pronounced, upon an amended bill, answers, &c. on the 6th of April 1809, “that the defendant Ferdinando Fairfax, do pay to the plaintiffs the sum of twenty-six thousand six hundred and sixty-six dollars, sixty-six cents, lawful money of the United States, with interest thereon, after the rate of six per centum per annum, from the 1st day of March 1801, until payment, and the costs of this suit; and unless he shall pay to the said complainants the said sum of money, with interest and costs as aforesaid, on or before the first day of August next, the said defendant and their heirs, and all persons claiming under the said Fairfax, be forthwith barred and foreclosed of all equity and right of redemption in and to the lands stated in the plaintiff’s bills to have been mortgaged by the said Ferdinando Fairfax to Battaile Muse, the testator of the plaintiffs, with the reservation hereinafter contained with respect to the claim of the defendant Hurst,” (who had a prior incumbrance on part of the mortgaged premises;) “and that Elisha Boyd of Martinsburg, John Baker of Shepherdstown, and Thomas Baker of Frederick county, appointed commissioners for that purpose, or any two of them, after giving eight weeks notice in a Winchester and Martinsburg newspaper, and also advertising the sale on some court day at the Court-house of Berkeley and Jefferson counties, do expose to sale *56to the highest bidder, at public auction, taking bonds from the purchaser or purchasers, (unless the plaintiffs shall be purchasers,) conditioned for payment in the manner, and at the time prescribed by an act of the last session" of the General Assembly, entitled ‘An act concerning executions, and for other purposes,’(a) (unless the said Fairfax shall give bond and security in the court, or the Clerk’s Office thereof, pursuant to the provisions of said act) so much of the lands, *in the plaintiff’s bill mentioned to have been mortgaged by the defendant Fairfax, to the plaintiff’s testator, as is free from the claim of the defendant Hurst, and as shall be necessary to discharge the debt, interest and costs aforesaid, together with the costs and charges which shall attend the sale, and in such parcels, and in such a manner as the said Fairfax shall direct; provided such directions, in the opinion of the said commissioners, or such of them who shall act, and who are to have the entire control on this subject, shall not tend to lessen the general value of the land, or the plaintiff’s security for their debt, or to obstruct the sale; and if the said Fairfax shall not think proper to give such directions, or any directions in relation to the said sale, the said commissioners, or any two of them, shall proceed, according to their own discretion, in any event to do justice in the sale, as well to the plaintiffs as the defendant Fair-fax ; and that they report their proceedings to the court at the term next after the said sale shall have been made.”

From this decree the defendant Fairfax, by the court’s permission, appealed, and gave bond and security according to law, but never prosecuted that appeal; neither was it.dismissed for want of prosecution, as directed by the act of assembly.(b)

At the July Term 1809, of the Court of Chancery, on the motion of the defendant Fairfax, by his counsel, John Dixon and John Downy were added to the commissioners before appointed to carry the decree into effect.

In October following, the commissioners reported, that they had laid off and divided for sale the mortgaged lands in parcels, according to a plan proposed by the said Fair-fax, which, in their opinions, was calculated to promote the interest of all parties ; that, afterwards, at the time and place fixed upon for the sale, (all pre-requisites respecting the advertisements required by said decree having been strictly observed,) they proceeded to said sale, which, not being concluded on the first day appointed, was continued over until the next day, (agreeably to the advertisement,) and then concluded ; that several parcels of the said lands were brought *by the complainants, to the amount of twenty-five thousand three hundred and twenty dollars and two cents ; and other parcels by the said Fairfax, to the hmount of eleven thousand and fifty-three dollars and fifty cents ; so that the aggregate amount of the whole sale was $36,373 52 cents ; and that Fairfax had executed bonds with security, conditioned for the payment of the amount of his purchases aforesaid, with interest, at or before the expiration or repeal of the act of assembly “concerning executions, and for other purposes ;” which bonds were returned with said report.

The defendant, Fairfax, in the form of a bill sworn to by him, presented exceptions to the report, accompanied with sundry affidavits of witnesses, in relation to the manner of conducting the sale, by the commissioners ; from which it appeared that the day on which the sale commenced, was cloudy, and occasionally rainy ; which circumstance might have prevented some persons, who would have bid for the land, from attending ; but a considerable number were present, three of whom were bidders, besides the defendant Fairfax, and- the plaintiff’s agent; that when the Meadow Farm Tract, containing 300 acres more or less, (which was struck off to the agent for the plaintiffs at 5320 dollars,) was offered for sale, the commissioners, after it had been cried some time, (wishing to quicken the bidding which was slow and tedious,) caused a proclamation to be made, that the farther crying of that parcel of land would be limited to fifteen minutes; that Fairfax objected to such limitation, observing that he had never before known the whole time of a sale limited in that manner, but only the time between one bid and anothér; that the commissioners at first, insisted upon it, but afterwards repeatedly prolonged the time ; that when the land was cried out to the bid of the plaintiff’s, the defendant Fairfax, who had recently made a bid, was engaged in a short conversation with a gentleman whom he was requesting to be his security, and probably did not hear the last bid cried ; that the witnesses generally thought the land was cried out rather precipitately, and without due notice ; but one of them stated, that it was proclaimed more than *once by the cryer, that the property was about to be struck off; and the commissioners made proclamation also to that effect, by directing the cryer not to dwell; that about three minutes elapsed, after the said last bid, before it was struck off; that upon being informed that the land was purchased by the plaintiff’s agent, the defendant Fairfax declared that he would have bid more, and expressed great dissatisfaction at the result; that whether the sum for which the said meadow farm was sold was under its cash value at the time, was in some degree doubtful; that the commissioners manifested a desire to sell the land for the highest price ; that they frequently solicited gentlemen to bid, and not to be so tardy in bidding, and were universally supposed to have acted uprightly in the whole transaction.

Chancellor Brown over-ruled the exceptions, and confirmed the report; — directing the commissioners to execute deeds to the plaintiffs, and (when his bonds should be satisfied) to the defendant Fairfax, for the lands purchased by them respectively ; they producing conveyances for that purpose: and, inasmuch as there appeared to be a balance due from the said defendant to the plaintiffs, of $4082 36 cents, a farther sale of the residue of the mortgaged premises being 500 acres of the Glade Tract, in the occupation of James Hurst, (who appeared to have a lien thereon for the sum of $4000,) was de*57creed to be made by the same commissioners ; subject to that lien. From which decree the defendant Fairfax prayed an appeal, from so much thereof as confirmed the sale of the Meadow Farm Tract, and directed the sale of the land incumbered to Hurst, and the payment of $4082 36 cents ; which appeal the Chancellor granted, so far as it respected the sale of the Meadow Farm Tract, but no farther.

Nicholas for the appellant.

Wirt for the appellee.

Monday, January 10th, 1814.

*

 Appeals — How Dismissed. — A cause which has been brought Into the appellate court can only be dismissed from thence in the mode prescribed by the statute. Williamson v. Gayle, 4 Gratt. 180, 182, citing the principal case.

†

-Judicial Sales. — See monographic *note on*“Judicial Sales” appended to Walker v. Page, 21 Gratt. 636.

The principal case is distinguished in Roberts v. Roberts, 13 Gratt. 642, 643.

(b)

 See 2 H. and M. 558-9.

(a)

 See acts of 1808, ch. 5, p. 5 — 9.

(b)

 Rev. Code, 1st vol, ch. 63, sect. 17, p. 62.

The following was delivered by

JUDGE) ROANE),

as the opinion of this court.

*“The court is of opinion that, although an appeal once allowed can not be regularly dismissed from the appellate court, but in the mode prescribed by the statute, yet that the party obtaining it may, by his express consent, or by acts indicating such consent, estop himself from objecting the pendency thereof, and may by such acts, or consent, with the concurrence of the adverse party, restore the jurisdiction of the court below. And it appearing, in this case, that the appellant moved in the court below to amend the order, for the sale of the land in question, by adding two other commissioners to those therein named ; that he has never prosecuted his appeal taken from the order aforesaid, even up to the present time ; and stood by and permitted the sale to take place without objection, and even encouraged others to purchase, by bidding for the land himself ; — the court is of opinion, that these and other acts, which equally tended to lull the vigilance of the appellee, and prevent him from dismissing the said appeal for want of prosecution, and manifested a dereliction of that appeal on the part of the appellant, ought in equity to estop and preclude him from relying on the pendency thereof. With respect to the objections made by the appellant to the manner of conducting, and circumstances attending, the sale of the land in question ; while the court would discourage a limitation of time, prescribed to the bidders, which would prevent a fair sale of the property for the most it would bring at the time of auction ; yet the limitation in this case having only been resorted to after the land had been cried for a considerable time, and even then repeatedly done away, and the sale again opened, the only effect thereof must have been to quicken and excite the bidders. In all other points of view, the conduct of the commissioners appears to have been equally unexceptionable, and is approved by this court : and, upon the whole, thé decree of the Court of Chancery is affirmed.