#### PITTINGER, EX-PARTE.

(Filed September 18, 1906).

Partition — Talue—Consent Decree — Endorser—• Surety — Subrogation.

1. Where a decree of confirmation in a partition proceeding of land recited that certain personalty of G was sold with the land with the understanding that if it became necessary for the receiver of G to sell said personalty to pay the debts of G, that the purchaser should be credited with the value of said personalty, the purchaser is entitled to be credited with the actual cash value of said personalty at the date when it was sold by the receiver, and neither the price it brought when sold for cash by the receiver for $350 nor the price it brought when resold for $10,200 by the Coitrt and paid for in the greatly depreciated paper of G, is the criterion of its value.

2. Where, in a partition proceeding for land, it appears that a recital as to certain personalty was inserted in the decree of confirmation “by consent of all parties,” and one of the tenants in common has taken benefit under the decree by receiving part of the purchase-money, and is now moving in the cause to collect the remainder, she is bound by the recital in the decree.

3. An endorser or surety who pays the indebtedness is subrogated to the rights of the creditor as against the property of the debtor.'

*86PbtitioN for partition by Mrs. Lucy W. Pittinger and husband and Mrs. M. E. Harrison and husband, ex-parte, of a certain tract of land known as Medoc Vineyard. An order for sale was made and David Dell appointed commissioner to make the sale. The land was purchased by Mrs. M. F. Harrison, at the -price of thirty thousand dollars. She paid one-fifth of the purchase-money in cash and has also paid the notes due 1 May, 1903, and 1 May, 1904, and has failed to pay a note for $4,800 maturing 1 May, 1905, and also note in like sum due 1 May, 1906. There is also another note for a like sum due 1 May, 1907. All these notes bear six per cent, interest from date thereof.

This is a motion in the cause heard by the Clerk of the Superior Court of Halifax County, made on behalf of Mrs. Lucy W. Pittinger for a resalé of the land to pay the unpaid •purchase-money. The Clerk denied the motion, and Mrs. Pittinger appealed to the Judge. The matter was heard by Judge T. J. Shaw at chambers, at Halifax, on 8 June, 1906, who affirmed the order of the Clerk. From the judgment of his Honor, Mrs. Pittinger appealed to the Supreme Court.

Shepherd & Shepherd, Mason & Worrell and George G. Green for the appellant.

Travis, Daniel and Kitchin for the appellee.

Ebown, J.

The ground upon which Mrs. Harrison resists payment of the purchase-money is based upon certain statements in the report of the commissioner and in the decree of confirmation. The report of the commissioner states: “And the cooperage was to go'to the purchaser of said lands, with the understanding that if it should become necessary for said cooperage to be sold by the receivers to pay the debts of O. W. Garrett & Co., then and in that event the purchaser of said lands should be credited on the purchase price for the value■ of said cooperage.”

*87There is nothing in the original decree of sale authorizing such action of the commissioner, but in the decree of confirmation of 11 June, 1902, appears the following clause: “And the cooperage now in the cellar at said vineyard, by . consent of all parties, was sold with said lands, with the understanding that if it should become necessary for the receiver of C. W. G-arrett & Co., A. S. Harrison, to sell said cooperage to pay the debts of the said C. W. Garrett & Co., then and in that event the value of said cooperage should be dediicted from the purchase price of said lands and property.”

If the cooperage was the property of C. W. Garrett & Co., no reason is given as to why it was sold with the land. If it was the property of Mrs. Pittinger and Mrs. Harrison, the record discloses no reason why it should have thus been practically dedicated to the payment of Garrett & Co.’s debts, as neither tenant in common was a member of that firm.

Mrs. Pittinger has not asked to have the report of sale and decree of confirmation set aside. On the contrary, she has received her share of so much of the purchase-money as lias been paid and is moving in the cause and under such decree to collect her share of the remainder. It therefore requires no citation of authority to show that in pressing her motion to collect the unpaid purchase-money Mrs. Pittinger is bound by the action of the commissioner and the recital in the decree of confirmation that it was done by her consent. If the action of the commissioner was unauthorized and the decree of confirmation made without her knowledge and consent, Mrs. Pittinger should have taken proper steps to have the sale and- decree set aside. But she has taken benefit under it by receiving part of the purchase-money, and is now moving in the cause to collect the remainder.

The cooperage referred to consisted of about 100 empty casks, 15 fermenting tanks, pipes, etc. It appears that the cooperage was taken by the receiver of Garrett & Go., and *88sold to pay tbe debts of that insolvent firm. In ber affidavit Mrs. Harrison places tbe value of tbe cooperage at $5,000. At tbe receiver’s sale it brought $350. It was resold by order of Court and bid off by Paul Garrett at tbe price of $10,200.

A schedule of tbe creditors of O. W. Garrett & Co. is set out in tbe record. Tbe name of Paul Garrett does not appear among tbe number, but tbe receiver reports that Paul Garrett owns all tbe indebtedness except $86.62. What be paid for it does not appear. But tbe record shows that said debts were worth much less than their face value. Tbe price bid by Paul Garrett was not paid in money, but by this insolvent paper, which be bad evidently bought up for tbe purpose and probably at large discount.

Mrs. Harrison claims tbe right to have tbe $10,200 credited on tbe purchase-money notes. Mrs. Pittinger replies that Mrs. Harrison is endorser upon some of tbe notes of C. W. Garrett & Co., and that she should be required to pay these before tbe cooperage money can be so applied. This cannot avail Mrs. Pittinger, because tbe cooperage is regarded in tbe decree and was sold as tbe property of C. W. Garrett & Co., and if Mrs. Harrison as endorser or surety bad paid tbe notes she would be subrogated to tbe rights of tbe creditors as against tbe property of O. W. Garrett & Co. But we think it would be rank injustice, and neither within tbe letter nor spirit of tbe language of tbe decree, to bold Mrs. Pittinger bound by tbe sum which Paul Garrett saAV fit to bid for the cooperage when be knew be could pay for it in tbe greatly depreciated paper of O. W. Garrett & Co. That sale is no more a criterion of its value than tbe first sale when it was sold for cash and brought only $350.

We are of tbe opinion that Mrs. Pittinger, under tbe terms of tbe decree, is responsible for one-balf of tbe actual cash value of tbe cooperage at tbe date when it was sold by tbe receiver, and no more.

*89This cause is therefore remanded to the Superior Court of Llalifax County with leave to Mrs. Pittinger, upon ten days’ notice to Mrs. Harrison or to ber attorneys, to move at chambers before the resident Judge of the Second Judicial District, at a time and place therein, or before the Judge holding the courts of said district, that his Honor find the fact as to what was the actual cash value of such cooperage, and that his Honor certify said finding to the Clerk of the Superior Court of Halifax County to the end that the half of the purchase-money belonging to Mrs. Pittinger be credited with one-half of such cash value as of the date when said cooperage was sold by the receiver and the sale thereof confirmed. Whatever sum may then remain due Mrs. Pittinger upon the notes due 1 May, 1905, and 1 May, 1906, now past due, Mrs. Harrison shall be required to pay, or, in default thereof, the proper order of sale shall be entered by the Clerk of the Superior Court of Halifax County.

, The order of the Clerk and Judge is'reversed, and the cause remanded to be proceeded with in accordance with this opinion.

Reversed and remanded.