Effinger v. Kenney

Lewis, P., delivered the opinion of the court: This was a suit to enforce a vendor’s lien on certain, real estate in the town of Harrisonburg. A decree of sale was entered at the November term, 1878, which, on appeal by the defendant to this court, was affirmed. After the case went back to the circuit court a sale was made, which, by the decree now complained of, was confirmed. No account of liens was ordered or taken in the cause, and the main question is, whether in the absence of such an account the circuit court erred in overruling the defendant’s exceptions and in confirming the sale. It is undoubtedly well established by a long line of decisions of this court, that in a suit to subject real estate to the satisfaction of liens by judgments or deeds of trust, it is premature and erroneous to order a sale before an account is taken ascertaining the liens on the land and the order in which they are payable. Horton v. Bond, 28 Gratt. 815, and cases cited. But this rule, the appellee insists, does not apply where the object of the suit is the enforcement of a vendor’s lien. It is unnecessary, however, to decide that question, as, in any event, the objection now urged by the - appellant cannot avail. It was not urged in the circuit court when the decree of sale was entered, nor in this court when that decree was brought here for review, nor was it raised until after the case went back to the circuit court, and the sale had been made and reported for confirmation. Moreover, the effect of the former appeal was to bring up for review not [553] only the decree of sale, but the whole proceedings in the cause prior to that decree. Burton v. Broun, 22 Gratt. 1. And. the decree of this court affirming that decree must be regarded as a final determination between the parties of all questions, which were or might have been raised on that appeal. Campbell’s Ex’ors v. Campbell’s Ex’or, Id. 649. In that case it was held, that whether the alleged error appears to have been noticed or not, it cannot he admitted that it was not adverted to if the point was fairly presented upon the record. A contrary doctrine, it was said in Price v. Campbell, 5 Call, 115, would overthrow the theory of the law, which supposes everything contained in the record to have been decided on, and would violate the wisely established rule that interest reipublicce resjudicatas non rescindi. See also N. Y. Life Ins. Co. v. Clemmitt & Wife, 77 Va. 366; Frazier v. Frazier, Id. 775; Blackwell’s Adm’r v. Bragg, Trustee, 78 Va. 529; McCormick’s Ex’ors v. Wright’s Ex’ors, ante, page 524. We are satisfied from the evidence that the land was sold for a fair price. Ho advanced bid was offered ; no creditor is 'complaining, and there is nothing in the record to warrant the belief that if the land were again offered for sale it would command a larger price. For the principles which govern courts of chancery in applications to set aside judicial sales, see Effinger v. Ralston, 21 Gratt. 430; Brock v. Rice, 27 Id. 812; Roudabush v. Miller, 32 Id. 454; Berlin v. Melhorn, 75 Va. 639; Langyher, Trustee, v. Patterson & Bash, 77 Id. 470. The decree is affirmed. Decree affirmed.