Sinnett v. Cralle's adm'r

Maxwell, J. Sinnett and wife filed their bill to enforce a vendor’s lien, against the one undivided twelfth part of a tract of land, sold by Emma Schenck to E. K. Cralle. Wyatt filed his bill to enforce a judgment lien against all the lands of the said Cralle, in the hands of his descendants’ The two causes came on to be heard together, when a decree was rendered to sell all the lands of which the said E. K. Cralle died seized, under which they were after-wards sold. It is insisted that the court should have laid off one-twelfth part of the tract known as the “Buster land,” and caused it to be sold separately, to satisfy the vendor’s lien held by Sinnett, This lien was upon one undivided twelfth part of the"tract known as the “Buster land,” but the decree provided that the one-twelfth part of the proceeds of the sale of the “Buster land” should be applied to the payment of this lieu. The decree provided for laying off and assigning to the widow of Cralle her dower in all the lands of which he died seized. How the dower was laid off'is not intelligible in the record, but it appears that the Buster tract was sold subject to her dower. She was not entitled to dower in the one-twelfth part of it on which Sinnett and wife have [603] a vendor’s lien, except in the surplus after the payment of said vendor’s lien, and that portion of it should have been sold free from dower. This could not be done without having that much of the tract laid off to itself and sold separately. It is claimed that the court erred in refusing to set aside the sale made of the land, in consequence of the inadequacy of the price for which it was sold. It is quite clear from the weight of the evidence, that the sale was for a greatly inadequate price, and that it should for that reason have been set aside. It is insisted here for the purchasers, that the sale cannot be set aside by this court, in consequence of the protection of the 8th section, of chapter 132, p. 630, of the Code. That section.provides that, if a sale of property be made under a decree or order of a court, and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby. This language does not refer to the order made confirming the sale, but to the decree or order under which the sale was made, and the purchasers cannot be protected by it in this case. It is objected that the personal decree rendered against Cabell is erroneous. If the sale had been properly confirmed, it would have been regular to decree against Cabell for the balance of the debt due Wyatt, which remained after the application to it of the proceeds of the sale of the land. When a court of equity once gets control of a case, it should not stop until all the rights of all the parties are settled. But the decree for the sale of the land belonging to Cabell, would not be warranted under the bill of Wyatt, if the sale were regular and allowed to stand. The decree of the 23d of April, 1869, confirming the sale, and the decree of October 29, 1869, decreeing against Cabell and Thompson, will have to be reversed at the costs of the appellees, and the decree directing the sale will have [604] to be so far modified, as to require one-twelfth part of what is called the “ Buster tract,” to be laid off to itself and sold free from the widow’s dower, to satisfy the vendor’s lien in favor of Sinnett and wife, and the cause remanded for further proceedings. The other Judges concurred. Decrees reversed.