1870. September Term. V. Helms & als. the purchaser, but who really purchased for the commissioner and conveyed the land to him accordingly, after the purchase as reported had been confirmed. Howery 3. Where a party interested in the land, with a full knowledge of all the facts, elects to affirm the sale, he will be concluded by it, and in this case the acceptance, without objection, of his share of the proceeds of sale in Confederate money (for which the sale was made,) was held to be such an affirmation. 4. Where any of the parties interested elect to avoid the sale, while it has been affirmed by other parties, the entire property, and not merely the undivided interest of the parties objecting to the sale, must be resold; and the original purchaser will be entitled to the shares of the proceeds of the resale, which would otherwise have belonged to those who have elected to affirm the original sale. 5. Where land is resold in cases of this sort, the usual and proper course is to offer the property at an upset price, to be fixed by the decree, according to the cases of Buckles v. Lafferty, 2 Rob. R. 292, and Baily's adm'x v. Robinsons, 1 Gratt. 4. But this rule is intended for the protection of the parties who elect to avoid the first sale; and where the decree for resale directed a sale in general terms, without fixing an upset price, it cannot be assigned as error in the appellate court, either by the original purchaser, or by any party who has elected to affirm the first sale. 6. A bill was filed, during the late war, for a partition of real estate among coparceners, some of whom were non-residents and so continued until after the war, and were proceeded against by publication. A decree for sale was made, and a sale made under it, at which M became nominally the purchaser. The commissioner reported to the court he had made the sale-that M was the purchaser, and desired to pay all the purchase money down, without awaiting the terms of credit provided by the decree, and that he had, under a provision in the decree, accepted the purchase money from him accordingly. In fact, M was only nominally the purchaser, the commissioner himself being the real purchaser, to whom M conveyed the land as soon as the sale was confirmed. The sale was confirmed, and the shares of the non-resident parties were, by direction of the court, invested in their names in the bonds of Floyd county, issued during the war. All this was done during the war. After the war the non-resident defendants, instead of appearing in the original suit, as provided by sect. 13, ch. 170, of the Code, filed their original bill, impeaching the original sale, and asking a resale. HELD: They were entitled to file an original bill, because, 1. The commissioner, by purchasing at his own sale, did an act which a court of equity treats as a fraud upon the parties 1870. September Term. V. Helms & 2. By reporting to the court that M was the purchaser, and con- Held, also, that the investments in the bonds of Floyd county John W. Helms, of the county of Floyd, died in August, 1862, intestate, leaving eleven children his heirs at law and distributees; and leaving a valuable tract of land and a number of slaves. His son-in-law, Fleming Howery, and his son, George M. Helms, qualified as his administrators. In September, 1862, a bill was filed in the name of Fleming Howery and his wife, three of the sons, and the husbands of two daughters and their wives, against Hambleton Helms and four others of the children, all of whom lived out of the State, and were proceeded against by publication, for the sale of the land and the slaves of which John W. Helms died possessed. In their bill the plaintiffs alleged that the land could not be divided among the eleven children without materially impairing the value of the separate interests. At the February term, 1863, of the County court, a decree was made, by which Fleming Howery and George M. Helms were appointed commissioners to sell the land and slaves-the land upon a credit of one and two years, and the slaves upon a credit of six months; or the commissioners might deduct the interest and receive the whole amount in cash if the purchasers desired it. Subsequently (but the record does not give the date) als. 1870. Fleming Howery returned a report, in which he stated September Term. that on the 20th of March, 1863, he had made sale of the land and slaves; and, among the other purchases, Howery he reported that the home tract of land, containing Helms & four hundred and forty-seven acres, was sold to John V. als. W. Helms at $30 per acre, equal to $13,410; that he had deducted the interest, as authorized by the decree; and had received in cash, on this tract, $12,203 10. He made a supplemental report, stating that proceedings had been instituted against him in Floyd circuit court, by Hambleton Helms' creditors, to get his share of the proceeds of the sale. The cause afterwards coming on on the report, it was confirmed by the court and a conveyance to Helms was ordered, and the commissioners were directed to collect the bonds given for the slaves, and after paying the expenses of sale and costs of suit, and their commissions, to pay over the balance of the proceeds of the sale of the land and slaves, one-eleventh thereof to each of the children of John H. Helms-the commissioners to retain the share of Hambleton Helms until it is ascertained who is entitled to it. In February, 1867, Hambleton Helms and the other parties who had been proceeded against as absent defendants, in the suit above mentioned, as well as Roley Simmons and Malinda his wife (the latter a daughter of John M. Helms, deceased, who had been plaintiffs in the previous suit), instituted a suit in the Circuit court of Floyd county against Fleming Howery and Eliza his wife, George M. Helms, John W. Helms and Tazewell Helms, and in their bill they charged that Howery purchased the tract of four hundred and fortyseven acres at the sale made by himself, and reported to the court that the land was sold to John W. Helms; that this report was confirmed and a conveyance was directed to be made to John W. Helms. They insist that this was a fraud, that the sale was void, and they ask that it may be set aside. The bill was dismissed as to Simmons and wife at 1870. September Term. V. als. their own instance, and they filed their answers as de- Howery fendants, taking the same grounds as were taken in the Helms & bill; and they say that they have not received any money under the decree in the first suit. Fleming Howery, George M. Helms and Tazewell Helms answered the bill. They objected to the jurisdiction of the court, on the ground that the previous cause was still pending in the County court, in which all the parties to this cause were parties. They said the land was purchased by John W. Helms and the sale reported to the court and confirmed, and Howery was directed to pay the money to the parties, and also to convey the land to John W. Helms. That he had collected the money and paid to John W. Helms, George M. Helms, and Tazewell Helms and his wife, their full distributive shares of said estate. That Howery, under the direction of the judge of the Circuit court of Floyd, funded the shares of the non-resident defendants and of the home defendants who would not receive the money, in bonds of the county of Floyd, in their names respectively. That it is true Howery did bid for the land, but his bidding made it sell for much more than it otherwise would have done. They filed with their answer the deed from Howery to John W. Helms, dated 1863, but recorded September 29th, and also a deed from John W. Helms to Howery, dated December 27th, 1863, and the Floyd county bonds, in which he had invested the shares of the estate of the parties who lived out of the State or refused to receive the money. There was no doubt that Howery purchased the land at the sale made by himself; and that it sold for a full price. The sale was, of course, during the war, and for Confederate money. 1870. When the cause came on to be heard, the court made September Term. a decree, setting aside the sale, and the deeds from Howery to John W. Helms and Helms to Howery, and Howery Howery was directed to convey the land to the heirs of Helms & John W. Helms. And after directing an account of V. als. rents, the court being of opinion that the said tract of land cannot be conveniently partitioned, decreed a sale thereof on terms mentioned in the decree, with directions to the commissioners to report to the court. From this decree Howery obtained an appeal. The Attorney-General, for the appellants, insisted that a sale by a commissioner to himself would not be set aside as a mere matter of course, but that there must have been something unfair in the mode of conducting the sale. Custis v. Snead, 12 Gratt., 662; Cox v. McMullin, 14 Id. 82; 2 John. Ch. R. 252; McKey ex'or, &c. v. Young, 4 Hen. & Munf. 430; Anderson & al. v. Fox & als., 2 Id. 245; Quarles v. Lacy, 4 Munf. 251. Wade, for the appellees, insisted, 1st. That a sale by a commissioner to himself was a fraud in law, for which the sale would be set aside. Davoue v. Fanning, 2 John. Ch. R. 252; Michoud v. Girod, 4 How. U. S. R. 503; Moore v. Hilton, 12 Leigh 1; Buckles v. Lafferty, 2 Rob. R. 292; Baily's adm3x v. Robinsons, 1 Gratt. 4. 2d. That it was no objection that the decree was for a résale out and out, and not at an outset price. That rule is for the benefit of the party who complains of the sale, and the appellee could not complain. JOYNES J. delivered the opinion of the court. The court is of opinion that it appears, from the evidence in the cause, that the appellant, Fleming Howery, was the real purchaser of the land in the proceedings mentioned, at the sale made by him on the 20th day of March, 1863, as commissioner of the |