delivered the opinion of the court.
The effect of the decree'made upon the petition of Payne against the heirs at law of Alsobrook, for sale of the lands for partition, was tо conclusively settle the equitable right of Alsobrook’s heirs to one-half of thе lands therein described.
There was no lawful execution of that decreе by Davidson, the commissioner appointed to make the sale. He was required by law to make sale of the lands upon credit of six months, and to take bond with security from the purchaser in double the amount of the purchase-money, and it was -his
Counsel for appellee say that the exceptions were abandoned, but we find no evidence thereof in the reсord. The commissioner had no authority to receive the money, and, though it was paid to him, he held it- as the mere depositary of the purchaser. State v. Cox,
Confirmation by the court, or by the act of the parties, was essential to give validity tо the sale and conveyance. Henderson v. Herrod,
The office of exceptions tо a report of sale, is to prevent confirmation; and when a report of sale is made, and exceptions thereto are filed, and no further stеps are taken, the inference is that the sale, and not the exceрtion, is abandoned.
There is no evidence of a confirmation in pais. The purchaser paid nothing for the land. He placed certain currency in the hands of Ms depositary, the commissioner, to be used for that purpose, but the owners of the land refused to receive it, and repudiated the sale.
Eggleston, the purchaser, seems to have appreciatеd his condition, for, four years after the' commissioner’s sale, he purchasеd the undivided one-half interest of Payne in the land, and accepted a сonveyance thereof from him, which conveyance was promptly rеcorded.
The deed from the commissioner seems never to have beеn recorded, and, so far as complainants are shown to have known, hе never claimed any interest thereunder, after their
There is no- sufficient evidence of an ouster of complainants from the land, and an adverse holding by Eggleston. His entry upon the land, and deadening one hundred acres of timber thereon, and building two cabins there, were beforе the exceptions tó the report bad been filed; and doubtless this action on his part was upon the expectation that the sale would be confirmed. But, thrеe years after this, he recognized the title of- Payne to one-half of the land, and, inferentially, that of complainants to the other interest. After he had acquired Payne’s title, he was, in law, entitled to hold the land, and the presumption is that he held in recognition of the right of his co-tenants. Until notice was brought to them of the fact that their title was denied, they might rely upon the presumption that it was recognized. The lands are wild and unoccupied (except forty aсres sold by Eggleston to one Wade, less than ten years before this suit was commеnced), and payment of taxes and claim of qwnership was not sufficient evidence of an ouster, nor of adverse holding by Eggleston. The complainants were entitled to relief.
The decree is therefore reversed and cause remanded.