within the description of a sale made at the voluntary instance of the parties; the reasons above given, as governing the case in hand, rendering it unnecessary to consider this question. The result is, the sale complained of in the present case falls under the general rule governing judicial sales, the doctrine of caveat emptor.

"There is a class of cases where relief is granted to the purchaser either by petition in the original case or by original bill either to have an abatement of the purchase price, or for rescission of the contract of purchase. We are referred, on this point, to Deaderick v. Smith, 6 Humph. 138, and a case therein cited and quoted,-Smith v. Britton, 3 Story, Eq. Jur. 347; Horn v. Denton, 2 Sneed, 125; and Foster v. Bradford, 1 Tenn. Ch. 400, 404. The teaching of the cases upon this subject is well settled in the last-mentioned case at page 402, thus: "There is some conflict in our authorities as to the right of a purchaser to come in for relief by petition in the original cause, after the confirmation of sale. The weight of decisions, but not of reason, seems to be in favor of such right at any time before a conveyance is executed. Deaderick v. Smith, 6 Humph. 138, 147; Read v. Fite, 8 Humph. 328; Blackmore v. Barker, 2 Swan, 342. See, contra, McMinn's Legatees V. Phipps, 3 Sneed, 196. But it seems to be agreed that after confirmation and conveyance the remedy is by an original bill, and that perhaps only such grounds of relief would be available in such cases as would avail to obtain relief in case of an executed contract between individuals. Pearson V. Johnson, 2 Sneed, 584; Horn v. Denton, Id. 125. The reason for this distinction is that, after confirmation and conveyance, the original cause is out of court and ended as to the sale, but it may be equally out of court long before the purchaser calls for a conveyance.' Other cases upon the general subject of the control of the court over its sales are Vanbibber v. Sawyers, 10 Humph. 79, Spence v. Armour, 9 Heisk. 167, and Hurt v. Long, 90 Tenn. 445, 16 S. W. 968. In Hurt v. Long, supra, it appeared that a bill had been filed by the guardian of an infant to confirm a sale he had made of the infant's land to the defendant, Long. On the hearing the chancellor held that it was to the minor's interest, ratified the terms, and confirmed the sale, and directed that the cash purchase money be paid into court, and notes taken for the balance, bearing interest; Hurt, the guardian, to give the purchaser a deed. The guardian went abroad, and remained about six to eight months. After his return, Long filed a petition in the cause, in which he alleged that at the time he made the trade Hurt said there were some claims against the property due a Mrs. De Berry for the original purchase money; that Mrs. De Berry, who was to release her claims and join in the deed from Hurt to him, had refused to do so; that he was unwilling to pay for the land in face

of her claims; that, anticipating no trouble under his contract with Hurt, he had taken possession of the farm, which was in bad condition, and made considerable improvements; that Mrs. De Berry had filed her bill, asserting a lien amounting to several thousand dollars; and he insisted that the guardian should discharge this, or that the court retain the fund for its satisfaction. The guardian answered the petition, saying that he had tendered a deed to petitioner, and he had refused it, and he offered to take back the land. Long filed an amended petition, in which he stated that Mrs. De Berry was willing to release the land, and look to the purchase money, and denied that Hurt had tendered him such a deed as the decree required. Proof was taken on the petition and answers, and the chancellor again decreed that the sale was proper, and confirmed it, directing that the title be vested in the purchaser, and that the guardian and executor execute him a deed with proper covenants. He also decreed that the money be paid into court, and retained to satisfy whatever claims Mrs. De Berry might establish. On appeal the decree was affirmed, except as to the deed required of the guardian and executor. Upon this subject it was said that the court were erroneously of the opinion that a deed with covenants could not be required of the guardian and executor; and further, that, as the chancellor's decree devested title, a deed was unnecessary, and that that portion of the decree was superfluous. Upon a proceeding to revive this decree the supreme court again spoke to this subject in the following terms: "Two other objections alleged against the jurisdiction in that case [the case just above mentioned] we deem it proper to notice in conclusion, and they are that, after the sale was approved, the minor was made defendant to Long's petition to hold the fund to meet the De Berry liens, and was represented by her guardian, who entered her appearance and made defense. It is said that the petition of Long to have the money he had paid and was to pay for the land retained in court to protect him, as purchaser, against the De Berry lien, should have been on original bill, because confirmation of sales after adjournment can only be set aside for fraud, accident, mistake, or other sufficient ground, which the party was deprived of the opportunity of pleading or relying upon in the original case without fault or negligence on his part. Pierson v. Johnson, 2 Sneed, 580; McMinn's Legatees v. Phipps, 3 Sneed, 196; Spence v. Armour, 9 Heisk. 169. Long's application did not fall within this rule. It was not an application to set aside or modify the decree. It did not seek to accomplish either as a result. The relief he sought was incidental in that case to protect himself as to the fund in court. The guardian ad litem already appointed would, without additional answer, represent the minor. But exactly what was done was sustained, upon full consideration by this

court, in the original case. It was held not to be such an irregularity as would defeat Long's right to this incidental relief upon a direct attack by appeal, much less would it do so of course in this collateral attack. If it were an original suit to appropriate purchase money, as claimed, the regular guardian might have defended, and entered the appearance of his ward. Britain v. Cowen, 5 Humph. 316; Cowan v. Anderson, 7 Cold. 291; Masson v. Swan, 6 Heisk. 450; Brown v. Severson, 12 Heisk. 390; Scott v. Porter, 2 Lea, 225. If he treated the petition as a bill for defense, and did enter the appearance of his ward, and defend, it effected the same result as though Long's petition had been called, or been in fact, an original bill (the name is immaterial, as a suit may be commenced by either, Code, § 4312), and at most is a mere irregularity, not affecting the merits.' The result of this case is that a purchaser in a chancery proceeding to convert the land of an infant may, after confirmation by the court of an agreement for sale between the guardian of the infant and himself, and after payment of a portion of the purchase money and the execution of an obligation to pay the remainder, but before deed, or decree devesting and vesting title, impound the purchase money so paid and to be paid by him in the cause to meet an incumbrance that the guardian had agreed to remove before the confirmation. From this it is seen that this authority does not state anything more favorable to the complainants' contention than contained in the summary already given of the prior cases which we have taken from Foster v. Bradford, 1 Tenn. Ch. 400, 402, supra. The substance of the bill with respect to the question we are now discussing is that the ancestor of complainants, some ten years prior to the filing of the present, bill, purchased a tract of land in the case of S. Watson, Trustee, etc., against the Bank of Tennessee and others, in the chancery court at Nashville, and received a conveyance therefor, and that, some four years prior to the filing of the bill, title to a portion of the land so purchased had failed; that the case was still pending in the chancery court, and that there was still on hand in that case two or three thousand dollars of funds; but it is not alleged that these funds arose from the sale of the land in question, but, on the other hand, it appears from the bill that there were other sources from which said fund might have arisen, the proceeding, as before stated, having been instituted to wind up the affairs of the Bank of Tennessee. From this statement we do not think that, within any of the authorities, we would be justified in directing the amount of complainants' loss to be paid out of the fund in court. True, the case is still pending, but it involved necessarily many other things besides the sale of the land in controversy. As to that matter the case was closed by the conveyance, and there are no allegations of fraud, accident, or mistake, or other grounds, that

would justify us in reopening that case, as to this matter, to grant the relief prayed for. The result is, the decree of the chancellor is affirmed, with costs.

"WILSON and BARTON, JJ., concur."

James S. Pilcher, for appellants. John Ruhm & Son and Samuel Watson, for appellees.

WILSON, J. This is the second time this case has been before us. It was before us the first time on bill and demurrer. The chancellor sustained the demurrer, and we affirmed his action. Upon appeal the supreme court reversed this court and the chancellor, and remanded the cause to the chancery court. In the chancery court, after the remand, the bill was answered, proof was adduced, and thereafter a decree rendered in favor of complainants. Defendants have appealed and assigned errors.

To present anything like a clear conception of the issues involved, it is necessary to state the substance of the original bill, the demurrer thereto, the answer to the bill after the remand of the cause upon the reversal of the decree of this court, the nature of the proof adduced, and the assignment of errors to the decree of the chancellor upon the second hearing before him.

The original bill was filed May 13, 1895, by the heirs and representatives of H. Rushing. It avers, in substance: (1) That February 16, 1866, the legislature of the state passed an act to wind up the affairs of the Bank of Tennessee, and therein directed the president and directors of said bank to execute a deed of assignment of its assets. (2) That in obedience to said act said officers of the bank, May 4, 1866, executed to Samuel Watson a deed of trust. (3) That May 16, 1866, the state of Tennessee and Samuel Watson, trustee, under the provisions of the said act of the legislature, filed a bill in the chancery court of Davidson county against the president and directors of the Bank of Tennessee and others for the purpose of winding up the affairs of said bank, and distributing its assets among its creditors under the terms of the deed of trust. The bill states the style of this case, and that it was still pending in the chancery court of Davidson county. (4) That Samuel Watson died in 1876; that Robert Ewing succeeded him as receiver of the assets of the Bank of Tennessee; that upon the expiration of his term of office as clerk and master of the chancery court of Davidson county Thomas W. Wrenne succeeded him; that George K. Whitworth succeeded Wrenne, and that Weaver succeeded Whitworth. (5) That December 31, 1868, there was conveyed to Watson, trustee, a certain tract of land in Benton county, Tenn., which is fully described in the bill, containing 4,240 acres; that this deed excluded from its general boundaries 800 acres; that the deed to this land was executed by R. P. Cole, assignee of Jona

than S. Dawson; and the bill states where the deed was recorded. (6) That on May 4, 1883, Ewing, as receiver, filed his report in the cause of The State of Tennessee against The Bank of Tennessee, setting out in detail the assets of said bank, including therein the tract of land above referred to and described; that thereupon a decree was rendered directing him to advertise and sell all of the real estate belonging to the assets of said bank, and directing that such sale should be made at the court-house door of the county where the property was situated, and upon a credit of 6, 12, and 18 months, with interest, and that notes should be taken for the purchase money, with good personal security, and a lien retained; that in accordance with the directions of the decree of the court above referred to, on February 1, 1885, the clerk and master and receiver sold to one H. Rushing, at the price of $1,670, the tract of land above described, and that he executed his three notes for the purchase price in accordance with the terms of the sale; that the said Rushing, the purchaser, fully paid for said land, and that a deed was executed to him April 13, 1886, by Thomas W. Wrenne, clerk and master, and that said deed was recorded in the register's office of Benton county, giving the name and page of the book in which it was registered. A copy of said deed is filed with and made a part of said deed. (7) That subsequent to the execution of the deed to said Rushing and the payment of the purchase money, one Jeannette Buchanan filed a bill in the chancery court of Benton county against the complainants as the heirs at law of said Rushing, seeking to recover possession of said tract of land, claiming the same by paramount title. (8) That this bill was answered and defended by complainants in said court, and that on November 7, 1890, a decree was rendered by the chancery court of said county declaring that the deed of Wrenne, clerk and master, to H. Rushing, was a cloud upon the title of said Jeannette Buchanan as to 2,000 acres of said land, and was null and void, and ordering a writ of possession to issue to eject complainants from said 2,000 acres; and that upon an appeal to the supreme court the decree of the chancery court of Benton county was affirmed, June 11, 1891, and a judgment rendered in favor of said Jeannette Buchanan for the recovery of the possession of said land from complainants, declaring the said deed of Wrenne, clerk and master and receiver, void, and also giving a judgment against them for cost. The bill then describes the 2,000 acres recovered by Jeannette Buchanan. (9) That they have been ejected from said 2,000 acres by virtue of the decree of the supreme court in the case aforesaid, and that they have been compelled to pay the cost as adjudged in that case. (10) That they are the heirs at law of said H. Rushing, who died intestate in 1887; that his administrator has fully administered; and that his widow departed this life in 1890. (11) It is averred

that they filed this bill, by leave of the court first had and obtained, against the defendant Weaver, as receiver of the Bank of Tennessee, and clerk and master of the chancery court of Davidson county, to recover the value of said 2,000 acres of land, and the costs and expenses to which they have been subjected in defending the title thereto. They aver that there is now in the hands of the defendants a fund belonging to the Bank of Tennessee amounting to some $3,000 or $4,000. (12) In view of these facts the complainants pray that a reference be had to the clerk and master, or to a special commissioner, to take proof, and report as to the value of the 2,000 acres from which they had been ejected in the suit of Jeannette Buchanan, and that a decree be rendered directing the payment to complainants out of the funds in the case of The State of Tennessee against The Bank of Tennessee an amount equal to the value of the 2,000 acres, together with the costs and expenses incurred by them in defending against the suit of Jeannette Buchanan against Rushing and others, in which suit the 2,000 acres were recovered, and that an order be made requiring the defendant Weaver to retain in his possession out of the funds or assets of the Bank of Tennessee so much as might be necessary to satisfy their recovery in this case.

(1)

The defendant Weaver demurred to this bill, assigning the following grounds: It appears from the face of the bill that the sale under which complainants' ancestor purchased the lands mentioned therein was a judicial sale, and that the contract was fully executed by the delivery of possession after payment of the consideration and execution and delivery of the deed; and, there being no allegation of fraud in such sale, that the rule of caveat emptor applies. (2) It appears from the bill that the alleged sale was in gross, and there is no allegation that the portion of the alleged land the title to which was perfect was worth less than the amount paid by the complainants' ancestor. (3) There is no allegation in said bill that the rents and profits, use and occupation, of that part of the land from which complainants allege that they have been evicted have amounted to less than the price paid for such portion, if, indeed, any part of the amount paid was apportionable to the part as to which eviction is alleged. (4) That said bill contains no statement that the complainants' ancestor was at the date of such sale ignorant of the alleged defect in the title to that part of the land purchased as to which eviction is alleged.

The chancellor heard the cause, it seems, upon bill and demurrer, October 24, 1895. He held that the demurrer to the original bill was well taken, and thereupon decreed that the bill be dismissed. From his decree an appeal was taken to the supreme court, and the case was assigned to this court. Upon consideration we were of opinion that the action of the chancellor was correct, and

thereupon sustained his decree. Upon appeal to the supreme court that court held and decreed that the action of the chancellor and of this court was incorrect, and remanded the cause to the chancery court of Davidson county for further proceedings. The case under the remand decree of the supreme court was reinstated upon the docket of the chancery court of Davidson county, and thereupon the defendants answered. The admissions and averments of the answers are, in substance, as follows: (1) It is admitted that in 1866 certain acts were passed by the legislature to wind up the affairs of the Bank of Tennessee, but it is not admitted that said acts were in all respects constitutional. (2) It is admitted that under this legislation the president and directors of the bank executed a trust deed to Samuel Watson, conveying the assets of the bank to him; but it is not admitted that the trust deed to him was in all respects valid, and it is alleged that it was invalid as to certain preferences declared in it, and it is said that this invalidity appears by decrees of the supreme court made the decree of this court in this case. (3) It is admitted that the state and Samuel Watson filed a bill in the chancery court of Davidson county, May 16, 1866, against the president and directors of the bank and others, the style of the case being "The State of Tennessee et al. vs. Bank of Tennessee et al." It is not admitted, however, that Watson was trustee, and, on the contrary, it is alleged that he was appointed receiver by the court, and in his capacity as receiver alone acted under the orders of the court in the management of the bank's assets placed in his hands. (4) It is admitted that Watson died in 1876; that Ewing, as clerk and master, was appointed receiver in his place; but it is not admitted that the assets belonged to the bank when Ewing was made receiver. (5) It is admitted that Wrenne, Whitworth, and respondent Weaver were in succession appointed receivers of the original assets of the bank, as stated in the bill. (6) It is admitted that December 31, 1868, a tract of land was conveyed to Watson under a bankrupt sale of the property of J. S. Dawson, against whom Watson, as receiver, held a claim. It is admitted that the deed to this land to Watson was, according to its terms, to him as trustee; but it is alleged that in fact and in law it was deeded to him as receiver, as that was the capacity in which he was acting. (7) It is admitted that Ewing filed his report in the case May 4, 1883, and that he was ordered by the court to sell the real estate belonging to the assets of the bank in his hands as receiver. (8) It is admitted that the tract of land here in issue was sold by Wrenne, receiver, February 1, 1885, to H. Rushing, for $1,670, and that Rushing executed his three notes for the purchase price, due in 6, 12, and 18 months, and that Rushing, as purchaser, paid, August 4, 1885, $576.46, and the balance in full, $1,

(10)

153.52, August 17, 1885, and that Wrenne as receiver, or as clerk and master, April 13, 1886, executed and delivered to Rushing a deed to said land, which was accepted by him, and the original of which deed is made an exhibit to the bill. (9) It is admitted that January 26, 1887, Jeannette Buchanan filed her bill in the chancery court of Benton county against parties, naming them, as heirs, etc., of H. Rushing, to recover the lands mentioned in Exhibit B to the bill, and respondent says "he doubts not that Mrs. Buchanan recovered possession thereof June 11, 1891, as set forth in said Exhibit B, which purports to be a copy of the decree of the supreme court of the state." The answer alleges, upon information and belief, that the calls of the deed to this land to Watson, receiver, and the description of the tract set out in the bill, includes about 5,040 acres; and, after excluding 800 acres, as provided in said deed and description, the tract contained about 4,240 acres. (11) It is not admitted that the tract of land described in Exhibit B to the bill, of which complainants allege that they were evicted, contains 2,000 acres, and it is alleged that it contained only about 1,900 acres. In this connection it is alleged in the answer that Mrs. Buchanan failed to recover 5 acres of said tract of 1,800 acres, situated on the eastern boundary thereof, and near the residence of H. Rushing, and upon which 5 acres said Rushing had erected a cotton gin, carriage house, stable, and yard many years prior to the date of the sale by Wrenne, receiver, to him; and, deducting this five acres, it is alleged that some 2,340 acres remain to complainants. It is also alleged in the answer in this connection that respondents do not know whether any of the 200-acre tracts, all amounting to 800 acres, which were excluded from the land sold to Rushing, fall in the boundaries not recovered by Mrs. Buchanan; and it is alleged that, if no part of this 800 acres fell within this boundary, then 3,140 acres remain unrecovered by Mrs. Buchanan; and it is contended that whatever part of the 800 acres falls within said boundary should be added to the 2.340 acres, which, under the terms of the deed to Rushing, complainants still retain; and complainants are called upon to show whether said 800 acres, or any part thereof, and, if any part, what part, thereof lies within the boundaries of that part of the tract conveyed to H. Rushing which was not recovered by Mrs. Buchanan. (12) Respondents allege that they do not know whether or not complainants are the heirs at law of H. Rushing, nor whether his administrator has fully administered, nor whether his widow is dead. (13) That respondents have been informed by Wrenne, who was receiver at the time of the sale and the deed to Rushing, and who continued as such receiver until November, 1888, that he (Wrenne) has no recollection of receiving any notice of the suit of Mrs. Buchanan, and

advised whether the made, so as to enable

therefore he is not proper defenses were the court to reach a correct conclusion in said suit, and for this reason respondents deny that he, as receiver, or the funds in his hands, are liable for any costs or expenses which the complainants may have incurred in defending the said suit of Mrs. Buchanan against them. (14) That the sale of the land to H. Rushing was in gross, and not by the acre, and that respondents are advised from the proof in the cause of Mrs. Buchanan against complainants it was made to appear that Mrs. Buchanan had been in the actual, adverse possession of the lands she recovered for many years prior to the institution of her suit, under grant from the state, and at the date of the sale to Rushing. (15) That the sale to Rushing was judicial and in invitum; that it was fully executed by the payment of the consideration, and the execution, delivery, and acceptance of the deed; that there was no warranty in the deed; that there was no fraud in the transaction; and that, therefore, the rule of caveat emptor applied to the purchase by Rushing. (16) That it is not admitted that there are any funds belonging to the assets of the Bank of Tennessee in the hands of respondent receiver. In this connection respondents say that they are advised that said bank ceased to exist many years ago, even before said tract of land was conveyed to Watson, receiver; and the funds and assets in the hands of his successors have been adjudged by the supreme court to be in custodia legis, and to belong, not to the bank, but to those whom the court shall declare to be the statutory beneficiaries of its assets, it having been adjudged that the bank ceased to exist. (17) That it had been adjudged in this case that the holders of the notes issued by the bank were entitled to preference in the distribution of its assets. (18) That, after the payment of the purchase price for the land by Rushing, the sum so received was paid out to holders of the notes of the bank, and in payment of the compensation of the receiver, and that no part of it remained in the custody of the law. (19) That the holders of the note issues of the bank were not only entitled to preference in the distribution of its assets, but that the state assumed the payment of its notes, and did pay such as had not been paid out of the assets of the bank; and, after it had done so, upon its petition in the cause it was adjudged May 27, 1887, to be entitled to all moneys then in, or to come into, the hands of the receiver in said cause; and that it was further ordered that the receiver, from time to time, as the same was received from the assets of the bank, turn the money into the treasury of the state; and it is insisted that all the funds on hand or to be derived from the remnants of the original assets of the bank belong, not to the bank, but to the state, less the costs of their collection; and that the bank has never had

any interest in said funds or assets since Rushing purchased the lands as aforesaid.

A large volume of proof was adduced, consisting of depositions, deeds, decrees, surveys, and plats. We also find in the record, under the style of the cause, the following agreement of counsel: "In the above-entitled cause it is agreed that the original record in the cases of Jeannette Buchanan vs. Rushing et al. in the chancery court at Camden, Tennessee, and The State of Tennessee vs. The Bank of Tennessee et al. in the chancery court at Nashville, Tennessee, or such parts thereof as either party may choose, may be read and referred to at the hearing, so far as the same or such parts may be relevant, competent, and material."

The chancellor heard the cause August 26, 1898, upon the pleadings, former decrees, argument, and evidence. He held that the complainants were entitled to be paid out of the general funds in the hands of Weaver, receiver, in the case of The State and others against The Bank of Tennessee and others, a sum equal to the pro rata of the purchase price paid by Rushing in the proportion that the land recovered by Mrs. Buchanan bears to the whole number of acres purchased by said Rushing. In other words, as we understand it, the decree of the chancellor is that the complainants are entitled to recover the proportion of the purchase price paid by their ancestor that went to pay for the land recovered by Mrs. Buchanan, with interest; the question as to the time from which interest should be calculated being reserved by him. He also held that they were entitled to recover out of the fund in the hands of Weaver. receiver, the cost of the cause of Mrs. Buchanan against them in the chancery and the supreme courts, and the cost of this cause. He declined to allow complainants a recovery for counsel fees paid in defending the suit of Mrs. Buchanan against them. He referred the cause to a special commissioner to report from the proof on file and such additional evidence as the parties might offer upon the following points: (1) The amount of cost paid by complainants in defending the suit of Jeannette Buchanan in the chancery court of Benton county and in the supreme court. (2) The number of acres purchased by H. Rushing, deceased, in the cause of The State of Tennessee and others against The Bank of Tennessee and others. (3) The number of acres that Jeannette Buchanan recovered in her said suit. (4) The number of acres remaining in complainants after deducting 2,000 acres from which they were evicted by the suit of Jeannette Buchanan. (5) The pro rata, according to acres, of the $1,670 which the number of acres from which the complainants were evicted bears to the whole, it being understood that the object of the opinion (the reference, we presume, was intended) is to ascertain the number of the acres which complainants lost by the recovery of Mrs. Buchanan. All further and other mat