#### SOLOMON ASHBEE AND OTHERS *against*W. H. COWELL AND OTHERS.

In a case wliei'e a sale of land had been made by a Clerk and Master and confirmed by the Court, after the lapse of a year, no allegation of fraud being made, leave to open the biddings upon the ground of inadequacy of price, was refused.

Such objections can in no event be made by motion, but are required to be brought forward by a bill or petition.

The question before'the Court in this case was raised by a motion to reopen biddings for a tract of land, which, having been allowed in the Court below, came up by the appeal of the former purchaser.

The bill praying a sale of the land was filed to Fall Term, 1851, of the Court of Equity of Currituck county. The decree at Spring Term, 1853, for reopening the biddings is as follows:— *ix*On evidence,filed in this cause at this term and sent herewith, and on Solomon Ashbee, one of the parties hereunto, giving bond- and security that if the biddings be opened he will give twenty-three hundred dollars for the premises heretofore purchased under decree of this Court by one Martin J. Leavitt, it is ordered by the Court that the former sale be set aside, and that the Clerk and Master expose the premises to public sale on the terms of the former order; that the bonds or notes given by the former purchaser, said Leavitt, be handed back to him. And it being suggested *159and shown to the Court' that the said Leavitt has the premises in cultivation, and has had possession thereof for some time, that he has made- cash and other payments "to those entitled, on account of the premises so purchased as aforesaid, and that he has made improvements upon the premises since his purchase, it is ordered by the Court, that the Clerk and Master report the value of the premises for the time of his possession under the sale, and for the present year — the cash and other payments made on account of the premises, and to whom made — the value of the improvements made on the premises since the sale to said Leavitt, to the end that he be charged with a reasonable rent for .the time he has had possession and for this year ; that he be refunded his cash or other payments, and that he be allowed the value of his improvements on the premises.”

The other facts necessary to an understanding of the case, appear in the opinion of the Court.

*W. N. H. Smith,*for the plaintiffs.

Heath, for the defendants, argued :—

1. The sale cannot be set aside and the biddings be opened on motion. In England some precedents apparently of this description may be found *;*but on examination it will be seen they were instances in which the persons applying *were not parties*to the petitions or bills, and for that reason they could not petition to rehear the interlocutory decree confirming the sale. Here the application is by the parties, before the Court on the bill; and it is submitted, it would be a violation of principle to permit the decree confirming the sale to be set aside on motion without a petition to rehear. After confirmation, a petition to rehear is the remedy, and the petition should set forth the cause for a rehearing, so that the party opposing may know what he is to meet. *Jones*v. *Zollicoffer,*1 C. L. Repos. 378. *Ricks*v. *Williams,*1 Dev. Eq. 3. The precedents in New York are all on petition. *Livingston*v. *Byrne,*11 Johns. 566. *Williams*v. *Dale,*3 Johns. Ch. Cases, 271. *Lancy*v. *McPherson,*lb. 425.

2. If it were matter of *mere*discretion, the sale ought not to be set aside, and the biddings be opened. In this case the advance offered is only $500; while the affidavits show that the *160lands have increased in value *wore*than ¡$200, and that the defendant has made permanent improvements on them to the amount of from $600 to $800. The purchaser Leavitt would be entitled to the value of his improvements, and as he would have had to bear any depreciation of the price of the land, so he is entitled to the advance. Hence, as matter of discretion merely, the sale ought not to be set aside and the biddings opened. Ashbee might gain by this course. The result would be a loss to the other parties.

3. Opening the biddings is not a matter of mere discretion, but of *legal*discretion. The true principle is laid down in *Scott*v. *Nesbitt,*3 Brown’s Chan. Cases, 475. That principle is this. Where the sale has *not*been confirmed, the biddings *may be opened on advance of price only ; where the sale *has been confirmed,*the biddings may not be opened on a mere advance. In *Ldvingston*v. *Byrne,*the Chancellor speaks in terms of unquali-lied disapprobation of sétting aside sales and opening biddings when no fraud is imputed, as there is not here. 11 Johns. Rep. 566. The true principle will also be found in *Williams*v. *Dale,*3 Johns. Chan. Cases, ,271, and in *Lancy*v. *'McPherson,*lb. 425.

Sales have sometimes been set aside and the biddings opened *after*confirmation under peculiar circumstances. In *Watson*v. *Birch,*2 Ves. Jr., this was done after confirmation. There the person applying was in prison at the confirmation, and there were other circumstances of hardship ; and yet, in the subsequent case of *Morris*v. *the Bishop of Durham,*the Chancellor expresses his strong disapprobation of this case, and says, he would never have made-the orders. The case is impliedly overruled. In *White*v. *Wilson,,*14 Yes. Jr., 152, the principle is laid down *;*that is, that after confirmation, the sale will not be set aside, and the biddings be opened, unless there has been some misconduct on the part of the purchaser or some fraud. None such is alleged here. See also Daniel’s Chan. Practice, 1465. In this book, note, page-, it is said that the practice of opening biddings as in England, has not prevailed in New York, North Carolina, New Jersey, Tennessee and South Carolina. From which I infer, when the sale has been fair and no fraud is imputed, the *161Courts of those States will not set aside the sale' éven *before*confirmation. .

Our case however is stronger than any of those cited. The confirmation was' decreed *after objection by the present petitioners,*and *on evidence introduced by them.*It is therefore *res ad-judicata.*No precedent can be shown, where the parties failing-in one trial, have been permitted to set aside the sale and open the biddings on a second application. To allow this, it is submitted, would outrage principle and render litigation interminable.

Peaeson, J.

At Spring Term, 1852, the Clerk and Master reported a sale of the land to Martin G. Leavitt at the price of $1800. After the examination of witnesses and argument of counsel the sale was confirmed. Leavitt went into possession and expended some $600 in repairs and improvements. At Spring Term, 1853, a motion was made to set aside the sale and re-open the biddings, based on a suggestion that the land had been sold for too small a price, and a proposition of Ashbee that he would malee an advance in the new biddings of $500. Many affidavits were read, and his Honor thereupon set aside the sale and directed the biddings to be re-opened.

In looking over the affidavits it is left doubtful whether the land did not sell for its value, considering the incumbrance of the widow’s dower, and there is room to believe that'the present motion and offer to advance the biddings, is to be ascribed to the fact that the value of land in that vicinity has risen considerably since the sale. But to avoid any difficulty about the facts, and to present the question broadly ; assume that the land did not sell for as much as it was worth at the time of the sale, by some two or three hundred dollars, and would now sell for $500 or $1,000 more, there is not even a suggestion that any *fraud was practiced*in order to cause the land to sell for less than its value.

We can imagine no ground other *l\v<m fraud,*upon which this Court can assume jurisdiction to set aside a sale and open bid-dings, a year after the sale *has been confirmed,*and after the purchaser has been let into possession and has made outlays in repairs and improvements so that he cannot be put *in statu quo.*If it may be done one year, it may be done two years or five or ten years after the confirmation upon the same principles. The *162consequence would be that no man of good sense would ever bid at such a sale, for he could never know when to call the land his own.

Any practical mind will see at once that an attempt to make property bring its full value by opening the biddings after the sale has been confirmed, must defeat its own object; because no man will play at a one sided game. He is bound and the Court is loose, and the Court may at any time say to him, there is no fraud imputed to you, but it is ascertained that the land will now sell for more than you gave for it, so you shall be paid for your improvements, *deducting a reasonable*rent, and have back your money, but must give up the land. The cases to be met with in the English books, where sales have been set aside and the bid-dings opened, except on the ground of fraud, are very few, and all of them are put on *u*special circumstances.” *f*

If the Court had a right to entertain this matter at all, it certainly could not do so on motion. The parties were out of Court and some formal proceeding was necessary, either bill or petition, in order to give the parties a day in Court, and have the proceeding and issue put in a permanent shape.

The decretal order below is reversed, and the motion to set aside the sale and open the biddings is disallowed with costs.

Pee Curiam. Order reversed.