#### JEREMIAH ADDERTON AND OTHERS *against*BEVERLY SURRATT.

Where a petition for the sale of land, in a court of equity, described one tract as “ the Mountain tract, containing about one hundred acres,” a sale was decreed of the lands mentioned in the pleadings, and the sale confirmed, on a bill to set aside the master’s deed, on the ground of fraud, it was *Held*that it would requii'e full, and incontestable proof, to satisfy the Court that *only a part*of the hundred acres had been intended to be sold by *the*master.

Cause removed from the Court of Equity of Davidson county.

In the year 1838, the plaintiffs, as the heirs-at-law of John Adderton, filed a petition in the Court of Equity of Davidson, for the sale of his real estate, consisting of various tracts; amongst others, one is described as *the mountain tract of about one hundred acres.*The petition was heard and an order made at Spring Term, 1838, of the said Court, for the sale of the lands mentioned in the petition. The clerk and master in Equity, at the ensuing Fall Term of the Court, reported that he had made sale of the lands, mentioned in the petition, to the *“*following persons,” setting out the various tracts sold, and the purchasers names and the prices, amongst others, as follows: “ Mountain tract — Beverly Surratt, $27,00.” At this term, a decree was passed setting aside the sale of a tract sold, called the Crump tract, and a release ordered and confirming the report of the clerk and master “ as to the sale of all the other tracts of land mentioned in the pleadings.” The bond taken by the master and returned with the report, in its conclusion, has this phrase: It being for the purchase-money, for forty acres of land, sold as the property of John Adderton’s heirs, in order to make distribution among his heirs-at-law.”

The Mountain tract aforesaid, consisted of two pai’cels, one of forty acres, which had been entered and granted by the State, and the other, of fift_y-sev6n aci’es, bought of one Bus-sell, adjoining each other. When the land was offered by the master, the defendant made known, publicly, that his deed covered the portion of fifty-seven acres, and warned the bystanders against purchasing it. The master, on consultation *120with a friend, conversant with such matters, proceeded to sell, arid the defendant purchased whatever was sold as the mountain tract. The plaintiffs say that only the forty acres was bid off, and only that number of acres was paid for. The defendant says, on the other hand, that finding the land going low, he concluded to buy in the Bussell portion of the mountain tract, as well as the other, so as to quiet his title to the fifty-seven acres, and that he distinctly did so. In 1850, a motion was made in the Court of Equity of Davidson, praying that the-case of the petition for the sale of the lands of John Adderton, pending in the year 1838, might be brought forward, and-on its being done, the defendant’s counsel moved that the then clerk and master on being satisfied that the purchase-money had been paid to his predecessor, should make title to the defendant for the “ mountain tract of land mentioned in the petition,” which order was accordingly made, and t'he deed made accordingly for the whole ninety-seven acres. Previously to this, the plaintiffs had brought an action of ejectment, at law, against the defendant for the fifty-seven acres, which they alleged had not been sold, and finding, during the pendency of the suit, that the defendant-had got the legal title from the clerk and master, they filed this bill to restrain him from setting it up in the trial of the said action, and praying that the deed, thus obtained, should be set aside, upon the ground of fraud, and that it should be surrendered for cancellation, and the defendant be allowed to take one only for the forty acres which he had bought. The proofs, in the case, are contradictory, and from the view taken by the Court, unnecessary to be stated here.

*B. F.*Moore, *Gorrell*and Kittrell, for the plaintiffs.

*J. H.*Bryan, for the defendant.

MáNly, J.

This is a bill, filed by certain persons, who represent themselves to be the heirs of John Adderton, and who state that about the year 1838, they obtained from the Court of Equity of Davidson, a decree for the sale of the *121lands theretofore belonging to John Adderton, consisting of various parcels; that only a *portion*of a certain parcel called the *mountain tract,*was sold, and they complain that Beverly Surratt, who bought that part, by fraud and management, had it reported as a sale, generally, of the mountain tract, and afterwards, in 1850, procured, through an order of the Court, a deed for the whole tract, and they pray that this deed may be revoked and cancelled, and a deed for the part, only, that was sold, executed.

.The facts appear to be, that the mountain tract, was sepa-ted from the other lands of the deceased. It originally consisted of two parcels — forty acres acquired by purchase from Russell, and fifty-seven, by grant from the State. They were adjoining each other, situated in the mountain district of the county, and designated, together, as the mountain tract. In the petition for the sale, it is set out as the *mountain tract, of about one hundred acres.*It is reported by the master as sold to the defendant. The sales were confirmed by the Court, except as to the Crump tract, which was resold, and afterwards, in 1850, upon proof of the payment of the purchase-money, the Court of Davidson directed a title to be made. In the note given to the master by the defendant, it is stated to be for forty acres of land, and the evidence of witnesses present at the sale, as to what was sold, is conflicting.

Upon the merits of this controversy, we think the case is with the defendant. The conflicting evidence afforded by the contents of the note, on the one hand, and the report of the master on the other, and by the contradictory recollections of the bystanders, might leave the matter in doubt; but when you add the considerations, that no attempt was made to resell the part alleged to have been left, and no charge taken of it, from that day to the time this dispute arose, and that it, alone, remained unsold, of all the lands of the deceased, the conclusion is irresistible, that it must have been considered by all parties, as sold under the decree.

It seems to us the'equity of the bill is overturned by force, alone, of the record of proceedings in 1888, upon the petition *122for the sale. It is “ordered that the mountain tract of about 100 acres,” be sold. The master reports that lie had sold the *“*mountain tract” without qualification, and the sale is confirmed. Until that time, the petitioners had a day in court to object and to rectify. After that, the contract of sale is complete and valid.

The title follows the payment of the purchase-money, as a matter of course, the previous orders standing unreversed.

The equit}*- of the bill, in any view of it, is unsustaiued by the proofs, and the bill must be dismissed with costs.

Pee CubiaM, Bill dismissed.