The opinion of the Court was delivered by
McIver, A. J.
This was an action upon a bond given for the balance of the purchase money of land sold for partition under an order of the Court of Common Pleas. The defense set up by the answer was a ffiilure of consideration, the allegation being that, by proper proceedings in- the Court of Common Pleas, to which the plaintiff was a party, it had been adjudged that the persons as whose property the land had been sold for partition had no title, and the land had been ordered to be resold and the proceeds paid over to the Receiver of the estate to which the land was adjudged to have belonged. The plaintiff demurred upon the ground that the answer does not state facts sufficient to constitute a defense, and the Circuit Judge having sustained the demurrer and given judgment for the plaintiff the defendant now moves to set aside that judgment. Whatever doubts may have been once entertained as *288to whether the doctrine of caveat emptor applied- to sales made by the Commissioner in Equity, those doubts were finally settled by the principles established by the case of The Commissioner vs. Smith, (9 Rich., 515,) and there can be now no doubt that this maxim does not apply to such sales, and, therefore, that the defense here set up, if established on the trial, will be a sufficient defense to the action. For although the sale in this case was made by the Sheriff, yet it was not a compulsory sale, under process of execution, where the rule of caveat emptor does apply, but a sale for partition, at the instance of the parties, and must be governed by the same principles as applied to such sales when made by the Commissioner in Equity. The Circuit Judge therefore erred in sustaining the demurrer, and his order and judgment must be set aside and the case remanded to the Circuit Court for trial. The motion is granted-.
Willard, C. J., and Haskell, A. J., concurred.