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Fairfax against Muse's Executors
The following was delivered by Judge Roane, as the opinion of this court.
[129] “ 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, the decree of the Court of Chancery is affirmed.