Gillespie v. Bailey

Green, President,

delivered the opinion of the Court:

The first point which arises on this record is : should this appeal be dismissed because impío vidently awarded? If the decree of February 17, 1847, was a final decree, then this appeal, being taken more than five years after its rendition, ought to be dismissed as improvidently awarded, otherwise it should not. The decisions in Virginia on the question, what decree is final and what interlocutory, are very numerous, and perhaps not altogether consistent; most of them are referred to in the case of Manion v. Fahy, reported in 11 W. Va. Perhaps the distinctions between decrees in this respect is as well stated by Judge Carr, in the case of Thornton v. Fitzhugh, 4 Leigh 209 , as anywhere else. His language is.: “The cases seem to me'to take the true and clear distinction : where anything is reserved by the court for future adjudication to settle the matters in controversy, the decree is interlocutory; but when upo n the *81 bearing all these matters are settled by the decree, such decree is final, though much may remain to be done before it can be completely carried into execution; and though, to effect this execution, the cause is retained and leave given to the parties to apply for the future aid of the court.” Judge Baldwin too, in the case of Cocke’s adm’r v. Gilpin, 1 Rob. 28 , lays down a criterion to distinguish interlocutory and final decrees, which is perhaps as clear as any that can be laid down, it is this: “ where the further action of the court in the cause is necessary to give complete relief contemplated by the court, then the decree, upon which the question arises, is to be regarded not as final, but interlocutory. I say the further action of the court in the cause, to distinguish it from that action of the court, which is common to both final and interlocutory decrees, to-wit, those measures, which are necessary for the execution of a decree, which has been pronounced, and which are properly to be regarded as adopted, not in but beyond the cause, and as founded on the decree itself, or mandate of the court, without respect to the relief, to which the party was previously entitled upon the merits of the case.”

Applying these principles, the decree of 1847 is not final. The bill was filed by parties, who claimed to be tenants in common with the defendants, and asked among other things for a partition of the land and for general relief. If the case stated in the bill was established, the complainants had not only a right to a partition of the land, but also to an account of the rents and profits received by the defendant in possession. No decree therefore should be regarded as final, till these objects sought by the bill have been finally acted upon by the court, or abandoned by the parties. And the decree of 1847, while it determined that the allegations in the bill of the plaintiffs had been proven, and that they were entitled to this relief, did not give the relief, but directed certain officers of the court to do certain acts and report to the court, that it might give such relief, *82 Further action of the court in the cause was therefore "necessary to give the relief contemplated by the court. This future action was not merely necessary for the execution of this decree, and is not founded on the decree without respect to the relief to which the party was previously entitled upon the merits of the case. But this further action is necessary to furnish the complainants the relief, to which they were entitled on the merits of the case itself, and therefore this decree cannot be properly said to have settled finally the matters in controversy between the parties. It settled the principles of the cause, but did not decide all matters between them ; it did not decide how much was 'due from the plaintiff, or from the defendant, which was a subject of controversy. This decree is therefore interlocutory ; and the appeal granted in this cause should not be dismissed as improvidently awarded.

The appeal from the last and final decree therefore necessarily opens for consideration all prior orders and decrees, upon which such final decree is based. Camden v. Haymond, 9 W. Va.; Atkinson v. Munks, 1 Cow. 702 ; Teal v. Woodsworth, 3 Paige 470 .

There is another preliminary question raised in this case necessary to be disposed of before examining into the merits of the cause, that is : did the court err in rendering any decision in this cause on the 5th of October 1869, after the suggestion of the death of the complainants by the defendants. When this suggestion was made, the cause had been pending upwards of thirty-six years. As a reason for proceeding to render a decree in favor of the plaintiffs, after such suggestion of their death, the court below in its decree says: “ that the court is of opinion that the proof is not sufficient to -prove the death of complainants; and the same comes too late, and is made for the purposes of delay, it being made at the lime the papers were offered to the court for final decree.” The original practice, in case of the death of the plaintiff in a chancery cause, was for his representatives *83 to file a bill oí review; now tbe cause may be revived without sucb a bill, by statutory provisions. The plaintiffs’ representatives are interested in seeing that no decree is entered in his favor after his death. And it is therefore usual for such representatives to have his death suggested, and the cause revived in their name. Still the court would permit the defendant to suggest the plaintiffs’ death, if satisfied such suggestion is made truthfully and bona fide. But in this as in all other matters, the court will not permit such action, when its object is not to' have proper parties before the court, but simply to produce delay. The court below seems, for reasons which were doubtless satisfactory, to have regarded the suggestion as made in bad faith, and merely for the purposes of delay. The affidavit, which was filed to support it, was that of the defendant Charles P. Bailey. He says: “ Some years ago he was advised by his counsel to suggest to the court, the death of Gillespie and wife, he, the deponent, shortly after this went to Jackson county, Ohio, and procured the affidavit of two persons, proving the death of both Gillespie and wife, which testimony or affidavits he placed in the hands of their attorney; and he is now informed by counsel, that there are no such papers on file in this case. And he feels assuredly confident that he could procure all the evidence necessary to establish the fact, that Gillespie and wife departed this life many years since, even if those persons, who made the affidavit above spoken of, should have also departed this life.” There are several things in connection with this affidavit which might well give rise to the belief, that its whole object was to produce delay. The evidence in the cause shows, that Gillespie and wife removed from Jackson county, Ohio, more than thirty-six years before this affidavit was made ; and it also shows, where they went to reside. This evidence had been in the cause for thirty years ; and it seems strange that the defendant, Bailey, should have gone to that county to find out whether *84 were still living, or that residents of that county should have been able to have given him any satisfactory information .on the subject. And what that information was he does not state, though he calls it proof of their death. In the next place it is strange he should have given* these affidavits, he had taken so much pains to get, to the counsel on the opposite side. And if they were satisfied, that they proved the death of the plaintiffs, it is strange they had not suggested it years before. And again, if Bailey and his counsel were so anxious to have the proper parties before the court, and the plaintiffs’ counsel would not suggest their death, it is strange Bailey’s counsel did not do it long before. I think the court, if the plaintiffs’ counsel were willing to risk taking a decree in the name of Gillespie and wife, did not err in disregarding such suggestion. Section 44 of chapter 130 of the Code p. 624, has no bearing on this case; it applies not to persons, who have formerly resided in this State, and who have removed permanently from the State to reside elsewhere; but only to persons who have resided in this State, and have left it with the intention of returning, but who have not returned to it for seven years successively; such persons are presumed to be dead. But in this case the plantiffs were non-residents of the State, and had been for more than thirty years, and as such, security for costs had been in this cause required of them by the defendants, and it had been given. Another objection has been urged to the consideration of this cause on its merits. It is insisted that no decree should have been rendered in it, because the cause has been more than once discontinued by the failure of the complainants to prosecute it for long periods; and the case of the Exchange Bank of Virginia v. Hall et al., 6 W. Va. 447 , is relied upon as authority by the appellants for this position. .That case was an action of debt against Porters and others instituted in 1856. The writ was served on Harris and at February term 1857 a judgment was taken against him. The rule book shows that at *85 _ January rules 1857 an alias summons issued against the other defendants which was lost; but which it is sumed was not served, as no common order was taken against them ; eleven years after this rendition of judgments against Harris an alias summons is issued against the other defendants, and one of them, Hall, moved the court to dismiss the proceedings against him, as no steps had been taken to have him summoned for eleven years, which was done by the court below and approved by this Court; no entry even of a continuance of this cause either at rules or in court was entered during these eleven years; and it seems as the statute .authorized a plaintiff, if he chose, to take a judgment against the defendant on whom a summons is issued, and discontinue his suit as to the other defendants on whom process is not served, that it was obviously proper to consider in such a ease, that the plaintiff had exercised this option. But the case before us is far different. In this cause the bill was filed at June rules 1853, at April court 1854 the defendant, Bailey, filed his answer and the cause was remanded to rules. At June rules 1834 a general replication was filed to this answer. At January rules 1835 the .defendants entered a rule for security for costs. At February rules 1835, the security for costs was given. Begular continuance of this cause was entered at every rule day, while the cause was at rules, until July rules 1836, when the cause was set for heai’ing as to defendant Bailey, and at August rules 1836 as to all the other defendants. At September court 1836 the cause was continued till the next term; and similar continuances of the cause were entered at each succeeding term, till February term 1847, when a decree, settling the principles of the cause, was entered, sundry depositions having been taken by the parties in the mean time, and since then regular continuances have been entered in the cause at every term, except when decrees have been entered. A discontinuance is the interruption of the proceedings, occasioned by the failure *86 of the plaintiff to continue the suit regularly from time 'to time, as he ought. 3 Black. Com. 296; Bouvier’sLaw Dictionary, title, “Discontinuance.” It is obvious that there has been no discontinuance proper in this cause, as continuances, both at rules and in court, have always been regularly entered. The Virginia statute law provided a mode by which a defendant could have a cause, which was thus continued on the docket for years, discontinued. After it had thus been continued for seven years, the court would, on the defendant’s motion, have it struck from the docket, which then operated as a discontinuance of the cause; and unless a motion to reinstate it was made within one year, such cause could never thereafter be reinstated. Acts of 1825-6, p. 17, Code of Virginia of 1860, chapter 173, section 8, 718. This act has-been re-enacted in this State, except that the time which must elapse before the defendant can by such stejis have a cause discontinued, is reduced to four years. No such steps having been taken in this cause, there has been no discontinuance thereof and the court below properly rendered a decree on the merits of the cause.

But a still further reason is urged why this cause should have been dismissed without its merits being considered. Bailey in his answer alleges, that he is informed and believes that the complainants a few days before the commencement of this suit, by a deed, while he was in the adversary possession of the.land, conveyed it to John J. Jackson, their attorney, for $300.00, of which $200.00 was to be paid on a contingency; and that John J. Jackson was prosecuting this suit at his own costs and for his own benefit in the name of the complainants; and the complainants having no interest in said land, when this suit was brought, and said Jackson being guilty of maintenance and champerty, the suit ought to be dismissed. This answer was replied to generally; and this being affirmative matter, ought to have been proven, to have the effect claimed. It is proven in the cause, that John J. Jackson did *87 purchase the interest of tbe complainants in the said land, and took from them a deed ; but the evidence fails to show whether this purchase and the making of this deed was before or since the institution of this suit. The only proof of the date of the execution of this deed is the deposition of the two magistrates, before whom it was acknowledged. One of them states it was in the summer of 1833, but he cannot state in what month; the other says that it was about a year and a half before he gave his deposition, which was August 19, 1834. Another witness proves that Jackson, in June 1833, spoke of having an interest in the land; and another, that at the time the subpoena in this cause was served, Gillespie and wife were in Wood county, and that they had not been there since that trip. The bill was filed on the first Monday in June 1833, it does not appear how long before the subpoena was served or issued. The burden of proof being on the defendant Bailey, to show that the deed was made before the service of the summons in this action, he has failed to meet this burden; for this evidence fails to prove that this deed was made before the institution of this suit. The date given by .one of the magistrates would be before, but that given by the other would be since. If the deed was executed since.the institution of the suit, it would have no effect upon it, as Jackson would then be a lis pendens purchaser; and the suit ought to be then prosecuted precisely as if he had not purchased. There is no evidence to show by whom the costs of this suit were borne. We need not therefore, •enquire into the correctness of the legal ■ positions taken on this point in Bailey’s answer, as they do not arise, the facts necessary to raise such a question not being proven.

Having disposed of all the preliminary questions, I will now consider the case on its merits. The complainants, John Gillespie and Esther Gillespie, for the sum of $80.00, on July 8, 1803, by a deed or contract under seal of that date, sold their interest in the real and personal estate of the father of the female complainant, *88 to her brother, John James, who on July 31, 1832, by [an agreement, sold the interest thereby acquired in the tract of land of seven hundred acres in Wood county, that, is, an undivided seventh part thereof, to the defendant, Bailey. When this agreement was signed, on July 8, 1803, by the complainants, John Gillespie and Esther Gillespie, she was not quite eighteen years of age, and she was a married .woman. There was no privy examination of her as required by law, and in fact no acknowledgment of this deed or agreement, either by him or by her; it was simply- signed in the presence of three Syllabus 1. witnesses, who attested it. This deed was obviously null and void, so far as Esther Gillespie was concerned. It was not merely voidable by her, but absolutely void. As a married woman, she had no power to sell or convey land, or make any contract of any sort in reference thereto. The statute authorized her by uniting in a deed with her"husband to convey her interest in land, provided she was privily examined and acknowledged the deed in the manner prescribed by the statute; but if these statutory provisions were not strictly complied with qer deed is an absolute nullity; this is so obvious that no authorties need be cited. This deed or contract of 1803 operated then only to convey the life estate of John Gillespie in the one-seventh part of said land. He had just married, and by virtue of his marriage he had a life estate in this undivided seventh-part of this tract of land owned by his wife, which life estate lasted only during the joint lives of himself and his wife ; while then this deed operated to convey this interest, yet he Syllabus 2. being, when he executed this deed, an infant but eighteen years of age, he could avoid this deed or contract at his pleasure on his attaining the age of twenty-one years, or he could then, if he chose, confirm it. There is but one single contract, which all the authorities agree, is absolutely binding on an infant, and that is an implied contract for necessaries furnished him; and on the the other hand there is but one single' act of an infant, which all *89 tbe authorities a^ree, is absolutely void, that is the giving of a power of attorney; with these exceptions all' other contracts of an infant whether executory or executed are voidable at the option of the infant, after he attains the age of twenty-one years; there are no other exceptions to this rule, which are admitted by all the authorities; though there are some authorities which lay down some other exceptions. See 1 American Leading Cases note to Tucker et al v. Moreland and Vasse v. Smith, 301, 304 and 306. There can be no question but that the contract or deed of July 8, 1803, the subject of controversy in this case so far as it was a contract of John Gillespie, was on the one hand not absolutely binding, and on the other not absolutely void, but was at his option, after he attained the age of twenty-one, voidable by him or con-firmable by him ; that is it was at his option, after he attained the age of twenty-one, void or valid as he might elect. . It is equally clear, that if he once confirmed it after he attained his full age, he could never after-wards elect to hold it void, and that without any affirmance it would remain valid till he elected to hold it void.

These positions I do not understand to be controverted by the counsel on either side in this cause.

It is,clear too, that the institution of this suit, in which the complainants ask the court to declare this deed or contract void, is an avoidance of it, if when the suit was instituted, John Gillespie had a right to avoid this contract, which he certainly had, though twenty-seven years had elapsed since he attained his full age, unless he had by some positive act affirmed this contract since he attained his majority, or unless the mere lapse of time and surrounding circumstances amounted, in itself by operation of law to an affirmance of the contract. The real question in controversy is, whether the failure of John Gillespie for a period of twenty-seven years, after he attained his full age, to do any act disaffirming this contract, or indicating that he was dissatisfied with it, under the circumstánces, *90 which surrounded the case, would in law amount to an affirmance of this contract or deed. There is an obvious distinction in this respect between the case where an infant has purchased land and retained the possession after attaining his full age, and the case, where he has sold land and had after his majority permitted a considerable time to elapse without disaffirming the sale. There are decisions or dicta to the effect that the infant must in case of a sale declare his disaffirmance in a reasonable time. See Klein v. Bebee, 6 Con. 494; Holmes v. Blogg, 8 Taunton 35; Richardson v. Bright, 9 Ver. 368. But these dicta or decisions are contrary to reason and the great weight of authority. The true doctrine is that mere acquiescence where an infant has sold land, though extended to an unreasonable length of time, will not amount to an affirmance: New Hampshire M. F. I. Co. v. Noyes, 32 N. H. 351; Irvine v. Irvine, 9 Wallace, 626; Voorhees v. Voorhees, 24 Barbour 153; Tucker v. Mooreland, 10 Peters 59 , and notes thereto; 1 Am. Leading Laws, 316; Drake v. Ramsay, 5 Ohio 251 ; Gressinger v. Welch, 15 Ohio 156 ; Boorly v. McKinney, 28 Me. 517 .

Syllabus 3. But though mere acquiescence for an unreasonable time will not, where an infant has sold land, amount in law to an affirmance of the sale, yet it will amount to such affirmance under certain circumstances — as when the infant has for several years, without any objection to the sale, stood by and seen the purchaser making large expenditures upon the land bought, in valuable improvements : See Wharton v. East, 5 Yerger 41; Wallace’s Super. v. Lewis, 4 Harrington 75 . So too, though the purchaser has not put valuable improvements on the land bought, still if he has been in actual possession of it for a period (since the infant attained his majority) sufficient to bar its recovery by another, if this possession had been adversary, such acquiescence under these circumstances, would legally amount to an affirmance of the sale: See Drake v. Ramsay; Gressinger v. Lessee of Welch; Voorhees v. Voorhees &c.; Tucker et al. v. Mooreland, *91 supra. Although these decisions are not explicit on the point, yet it seems to me clear, that to malee this silent acquiescence alone an affirmance of the sale, provided it has continued for a longer time than would bar the recovery of land, this acquiescence must be under the same or like circumstances : that is, the purchaser must, during this whole period, be in the possession of the land; and if he is not in possession, but the land is wild land and unoccupied, that the mere lapse of time, though it exceeded the bar of the statute of limitations for the recovery of land, would not amount to an affirmation of the sale. It is not the mere lapse of time before the party exercised his option to avoid the sale made in his infancy that amounts to an affirmance, but it is the length of such acquiescence accompanied by the possession of the land in the mean time by the purchaser. I do not mean to say that mere lapse of time, though the purchaser was not in continuous possession, might not, when extended far beyond the time in which lands can be recovered, when in adversary possession, might not under some circumstances amount to a confirmation, but simply that such acquiescence for a short time beyond this period, when there was no possession held by the purchaser, cannot be held to be an affirmation of the sale. In the present case there is no evidence in the case showing that the purchaser or his assignee took any possession of this land, or occupied it in any manner till within a year or two preceeding this sale. And if my views above expressed are correct, this alone will prevent this lapse of twenty-seven years after Gillespie attained his majority, before instituting this suit from being considered an affirmance of this sale; but it is further strengthened by the fact that not only he, but also the purchaser from him, were non-residents of the State, and almost immediately after the purchaser sold this land to a resident of the State, and he took possession of it, this suit was brought. The delay too in the institution of this suit *92 is further reasonably accounted for by the circumstances referred to in the decree of the court below of 1847, especially the fact that the litigation had been pending in the courts for many years in reference to the rights of James’s heirs in this cause, which would naturally have delayed the institution of a suit for a partition of the land till the rights of James’s heirs in it were determined. This controversy was still pending when this suit was instituted; and it would not probably have been instituted as soon as it was had not Bailey taken possession of the land. The court below did not err in holding therefore, that Gillespie had not affirmed this sale made in his infancy, and therefore had a right by the institution of this suit to avoid said sale.

Syllabus 4. The nest enquiry is: whatshould the court require of a person who asks the court to set aside á contract for the sale of land or the actual sale of land made by him when an infant, because being now an adult he elects to avoid such contract or sale. It is clear that if he has the consideration in kind which he received for such land, he must return it to the purchasers when he elects to set aside his contract of sale, or the sale ; and in such case it is immaterial whether the contract be executory, or executed; whether he made a deed for the land or not. He must in every .case when he avoids a contract executory, or executed, made during his infancy, return any property which he has received as the consideration of the contract, and which he still has in his possession. But if during his infancy he has wasted, sold or otherwise ceased ¿to possess the property which is the consideration of his contract, so that he cannot return it, or cannot return, except in its deteriorated condition, such inability will not hinder him from avoiding his contract generally. See Mustard v. Wohlford, 15 Gratt. 343 ; Bedinger v. Wharton, 27 Gratt. 857 ; Boody v. McKinney, 23 Me. 517 ; Price v. Ferman, 27 Vt. 271 ; Robbin v. Eaton, 10 N. H. 562; Fitz v. Hall, 9 N. H. 441.

A distinction has, as we shall presently see, been taken *93 in some eases between an executory and an executed contract, and it may be regarded as questionable, whether, the rule above laid down is applicable to executed contracts, though its application to executory contracts seems to be well settled. In the language of Judge Moncure in Mustard v. Wohlford, 15 Gratt. 343 : “ If the infant has delivered possession of land contracted to be sold by him, he has an unconditional right to recover it back in an action at law; and a court of equity will not restrain him from doing so, nor impose terms on the exercise of his right See Brunner et ux v. Franklin, &c., 4 Gill 463 . Judge Dorsey in delivering the opinion of the court in that case, uses this language: “ Establish the contrary doctrine and what is the result? Why the whole policy of the law .as to infantile incompetency to sell, waste and dispose of their prop-perty and estate is frustrated ; the alleged guardianship and protection thrown around them is a mere mockery,' existing only in name. An infant may sell his patrimonial estate, prodigally waste the purchase money in extravagance, gambling and dissipation; and if when arrived at maturity and discretion, he disaffirm the contract, and sue at law for the recovery of the property, a court of equity will, by injunction, arrest the arm of the law and say to him : before you shall further assert your claim to your estate, you must repay to the purchaser all the money you have received from him. To such a repudiation of all material discrimination between the contracts of infants and adults this court is not prepared to subscribe.” The case before the court in which these strong views were expressed was, it is true, an executory contract. But it seems to me, they apply with almost equal force to an executed contract. It seems to make but little substantial difference whether the infant who has sold his patrimonial estate and been paid for it in full and has during his infancy wasted the purchase money in extravagence and gambling, has executed a deed to the purchaser at the time of *94 sale, or only signed a contract to convey the land. In either case the policy of the law in declaring an infant incompetent to make a contract which shall be binding on him, if he choose to avoid it when he reaches his majority, seems to be to a very great extent frustrated, if he could only set aside the contract of sale or the sale itself on refunding the purchase money. Still a distinction has been taken between the two cases by highly respectable authority, which I am unwilling to disregard without the most mature consideration; and as in this case it is unnecessary to decide this question, I do not now propose to express any opinion upon it; but will refer to some of the cases, in which such a distinction was taken. In Smith v. Evans, 5 Humph. 70 , it was held in the case of an executedsale by an infant, if he disaffirms and seeks to recover back the article sold, he must return the purchase money or other consideration. So also in Badger v. Phinney 15 Mass., 359 and in Hillyer v. Bennett 3 Edw. Ch. 222 it was further held, that if he goes in to a chancery court to set aside a conveyance, because executed while he was an infant, he must offer to restore the purchase money. The Court of Appeals of Virginia in the case of Mustard v. Wohlford declined to express any opinion, as to the correctness of the decission in these cases, or any opinion upon the distinction drawn in them, between executed and executory contracts and in that case only decided, that if the contract for sale of land is executory, the infant is not bound, when he disaffirms such contract,.to refund the purchase money received by him when an infant. In the case of Bedinger v. Warton 27 Gratt 857 the court reaffirms the principles laid down in Mustard v. Wohlford ; they say in this case: “that where a contract is executory merely, it is very clear that it can be avoided by an infant after attaining lawful age without restoring anything, which may have been received by him in consideration of the contract and may have been consumed by him during infancy, or not remain in his hands on his arrival at law *95 ful age; but whether or not the same principal applies to the case of an executed contract, has never yet been decided by this Court” and they decline again to express any opinion on this point through an examination of the case will show that the contract in this case was an executed contract being a deed duly delivered and the land sold, put in the posession of the* purchasers, and all the purchase money paid. In that case the party, who sought to set aside a sale of land made when she was in infant, had sold the land while she was an infant for,$56,860, which was all paid by the purchaser in cash in confederate money and a deed executed to him, and he put .in posession; but the court being satisfied that this purchase money had been expended by the infant \ before attaining her majority, decreed a rescisión oi avoidance of the deed not only without requiring any portion of the purchase money which had been paid by tie purchaser to be refunded to him, but declined even ;o say that he was not responsible for rents from the time if the purchase and even before the institution of the sut. There is full as good reason to infer that the $80.00received by John Gillespie, when he was eighteen years jf age, had been expended before he attained the age cf twenty-one as there was to assume the expenditure of bhe entire purchase money, in the case of Bedinger v. Yharton during the infancy of the vendor. I do not howevtr mean to determine whether the defendant Bailey, whei this contract or deed of Gillespie, was avoided, was or j>vas not entitled to have such portion of this $80.00, as vis paid as the consideration for the interest of Gillespie ij said tract of land refunded, for it is obvious that if this was done, he was bound to account for the rents ancoro fits of this land, and the court so decreed in 1847. ¡It may be that at that time Bailey, the appellant had at interest in having this account taken; but be this as it |iay, he did not press the taking of the account and noting was done in carrying out the order of the court, tht such account be taken, for more than *96 twenty-two years, when the court rendered a final decree October 5,1869, assigning to the complainants the one-seventh part of said tract of land as it had been laid off by metes and bounds by the commissioners, who had been appointed for the purpose, and directing the costs of the suit to be equally divided between the parties. The court in this final decree entirely ignored so much of the decree of February 17, 1847, as ordered the master commissioner to ascertain “what portion of the |80.00, the consideration mentioned in the release of July 8, 1803, was paid on account of the land in the 3ill mentioned, and also an account charging John Janes, or his vendee, Bailey, with the rents and profits of tie land in the bill mentioned, and crediting them with said money paid on account thereof and interest.” We have no means of knowing what was the value of the rent of the land so to be charged Bailey; but it does appear that sixteen acres of the land assigned the complainants as a portion of their interest, was good tillable land on the Kanawha river, as good as the Kanawha bottoms generally, and worth about $50.00 per acre, tie rent of this piece of land alone since the rendition of the decree in 1847 would obviously exceed greatly he whole purchase money paid to the complainants, $8010, and the interest ; as they did not insist on the setting of the account in thepourt below, and have not conplained of the final decree being rendered without first ettling this account, I do not think the appellant Baiey can assign this as error in this Court. It may hav< been an error to decide this cause finally without this account being settled; and the court below may have 3rred in disregarding this provision of the decree of1847, it never having been reheard or set aside ; but it .s obviously an omisssion or error by the court, which ms in no manner prejudicial to the appellant, as it is ovious that had this account been settled, he would haveoeen doubtless brought in debt to the complainants ini considerable amount. He cannot therefore ask the eversal of this *97 decree of October 5, 1869, on that account; and it is therefore unnecessary to determine whether the decree of 1847, directing this account, was or was not erroneous, the complainants in the court below not asking this settlement. It was ui’ged that before the institution of this suit for a partition of this land, the complainants ought to have first established their right to the one-seventh part thereof by a separate suit. That-, there is no necessity for the institution of such separate suit as preliminary to the institution of a suit for partition, but that both may properly be united in one suit, has been decided by this Court in the case of Arnold v. Arnold, 11 W. Va. 449 . The partition of the laud is also objected to as unequal and unjust; but the evidence shows that it was fair and equitable. The decree of October 5, 1869, must therefore be affirmed, and the ap-pellees John Gillespie and Esther, his wife, must recover of the appellant their costs about this suit in this Court expended and $30.00 damages.

Judges Haymond, Moore and Johnson concurred.

Decree Affirmed.