Opinion. In December, 1890, Harman and Berkeley elected to purchase the land under their option, and William M. McAllister, trustee, reported the sale to the court, and asked that it might be confirmed by the court, which was done in vacation, after notice to Harman and Berkeley. By the same decree, William M. McAllister, the general receiver of the court, was directed to collect from Harman and Berkeley the cash payment, including that due to Charles D. Glendy, he consenting thereto, and hold the same subject to the future order of the court. By a decree entered at the April term, 1891, the general receiver was directed to collect the residue of the purchase price at or before maturity. At the September term, 1891, it appearing to the court that Harman and Berkeley were in default in making their cash payment, a rule, upon motion of the plaintiff, was awarded against them, returnable to the first day of the next term of the court, to show cause why the property purchased by them should not be resold at their costs and charges. The rule was docketed at the April term, 1892, of the court. At the September term, 1893, of the court, Harman and Berkeley filed their answer to the rule, in which, among other things, they deny that they are bound by the vacation decree of the court confirming the sale to them, as they were not parties to the suit. They state in their answer that, about the time that decree was entered, they transferred whatever rights they had in the property to Dr. J. S. Lawrence, who agreed to become the purchaser thereof at the price stipulated in the said option contract; that he had, as they are informed, paid to the receiver about $2,500 of the purchase price, and given a negotiable note to him for $3,000 more thereof; that the said lands were not offered for sale by the court, but that the option contract was made by C. D. Glendy, the owner of one-half thereof, and by William M. McAllister, trustee, in whom was the title to the other half; that the op Opinion. tion contract embraced about 4,400 acres of land, and provided for a good title; that, at the time they entered into that contract, and at the time Dr. Lawrence agreed to become the purchaser of the lands, the title to the lands was believed by them and others interested to be perfect, but since then a suit had been instituted and is now pending in the same court in which the plaintiffs set up a title to all of said lands except about 900 acres; that they are not advised as to the merits of the claim asserted in that suit, but the suit itself has placed a cloud upon the title to the lands, and had, as they are reliably informed, prevented the payment of the purchase price in full by Dr. Lawrence, and had defeated him in carrying out a sale of the lands which he had made; that the respondents had never contemplated purchasing less than the whole of the lands contracted for, and that the court would not compel them to take one-fifth of what they intended to purchase, but would either release them, or require their vendors to remove the cloud from the title without delay; but if the court should be of opinion that they were bound as purchasers, no sale should be decreed until the title to the property be made secure, and, if it cannot be made secure without delay, they ask to be released, and deny that their vendors can, under the circumstances, compel them to take a clouded title, or enforce a specific execution of the contract until the cloud upon the title shall have been removed. At the September term, 1894, a decree was entered by which one of the commissioners of the court was directed to ascertain whether or not Harman and Berkeley had really become purchasers of the land, and what was the condition of its title. In April, 1895, the commissioner made a report which, by consent of parties, was recommitted. In September, 1895, on motion of the plaintiffs, it being reported to the court that the tenant in possession of the land was committing waste by cutting and destroying valuable timber, the court entered an Opinion. order restraining Harman and Berkeley, their agents and assigns, and the tenant in possession, from committing waste. In April, 1896, the court ordered its general receiver to rent out the land for one year, which was done, and such renting was continued until the decree appealed from was entered. At the September term, 1897, McAllister, trustee, and C. D. Glendy filed their demurrer and replication to the answer of Harman and Berkeley, in which replication they insist that the sale to Harman and Berkeley is valid, having been confirmed by the Circuit Court, with their full knowledge and consent, and that the title to the lands is beyond question-the entire property having been in the actual and uninterrupted and adverse possession of the vendors and those under whom they claim for more than fifty years; that the plaintiffs in the chancery suit referred to in the answer of Harman and Berkeley have no connected title to, and no actual possession of, any part of the land; that their claim does not cast a cloud upon the Glendy title, and that it would be a useless task to require them (McAllister, trustee, and Glendy) to remove such supposed cloud. In April, 1898, the commissioner reported that Harman and Berkeley had become the purchasers of the land in accordance with the provisions of the option contract, and that the chancery suit which was alleged in the answer of Harman and Berkeley as casting a cloud upon the title to the lands had been dismissed by the Circuit Court, and, as he was informed, its action had been affirmed by the Court of Appeals, and that whilst the commissioner had no information as to what portions of said lands were involved in that suit, the cloud thereby cast upon the title to the property by its institution and prosecution did not seem to have been of a very serious character, especially in view of the sworn and uncontradicted statements of the replication of C. D. Glendy and Wm. M. McAllister, trustee. Opinion. Harman and Berkeley excepted to this report. Without passing upon the exceptions, the report was recommitted to the commissioner. In April, 1900, Harman and Berkeley moved the court to dismiss the commissioner from further consideration of the cause, and, without waiting for a report from the commissioner or granting further time for the vendors to complete their evidence, to proceed to hear and decide the cause upon the rule and proceedings had thereunder. This motion was resisted by the vendors of the land, who moved the court to continue the cause until the next term. This latter motion was resisted by the vendees. The court overruled the motion of the vendees, and continued the cause for the vendors with instruction to the commissioner to file his report in time for the cause to be heard upon its merits at the next term. In September, 1900, the commissioner reported that he only learned of the order entered at the April term, 1900, a few days before, that he had given notice to the parties, and taken the deposition of Wm. M. McAllister, trustee, but had been unable to take the evidence the parties desired. On the next day after that report was filed, Harman and Berkeley moved the court to discharge the rule which was pending against them, and to release them from the purchase of the land described in the rule and proceedings had thereunder. This motion was resisted by the vendors, who moved the court to continue the cause "for the purpose of allowing them to take further evidence on the line of showing a perfect title to all the land in question by adversary possession." This motion to continue was overrruled, and the cause was made a vacation cause. At the April term, 1901, the court entered a decree in which it held that the sale to Harman and Berkeley was not a judicial sale, but a sale in pais; that the vendors had not shown their ability to convey to the vendees such title to the lands sold as would entitle them to a decree against the vendees for a spe Opinion. cific performance of the contract, and that even if the vendors could and would now remove the cloud upon the title of said lands, it would be inequitable to require the vendees to comply with their contract of purchase at that late date, after the land had materially diminished in value, and that the vendors had, by their delay in removing the cloud upon the title (even supposing that they could at this time remove the same), deprived themselves of the right to have the contract specifically performed, dismissed the rule against Harman and Berkeley to show cause, annulled and set aside the contract of sale, and declared that Harman and Berkeley and their assigns who had paid the purchase price of the land, so far as it had been paid, should have an equitable lien on the land to secure its repayment, and directed the necessary accounts to ascertain the balance due. From that decree this appeal was allowed. It seems to be conceded that if the sale to Harman and Berkeley was a judicial sale, the purchasers would have no right under the facts of the case to raise any question as to the title of the land purchased by them. The first question, therefore, to be considered is, whether or not the sale was a judicial sale. A judicial sale is defined to be one which is made by a court of competent jurisdiction in a pending cause, through its authorized agent. Terry v. Coles, 80 Va. 695; Alexander v. Howe, 85 Va. 198, 201, 7 S. E. 248; Rorer on Judicial Sales (2d ed.), sec. 1. See also Christian v. Cabell, 22 Gratt. 82. Tested by this definition, it is clear that the sale in question was not a judicial sale. The court neither made the sale nor authorized McAllister, trustee, and Glendy to make it. The agreement to sell does not purport to be a sale by the court, nor its authorized agent or agents, but is a sale by the parties of the first part, one as trustee, and the other in his own right. Its validity is not made to depend, and did not depend upon the |