Perry v. . Peterson

MekrimoN, J.

The order of sale made in the proceeding in the late Court of Pleas and Quarter Sessions mentioned, was irregular and improperly made. It ought not to have been made until the issue which preceded it in the Record, as to the title to the land mentioned and described in the petition in that proceeding, had been tried and disposed of as the preceding order of the Court directed.

A material allegation, not very .distinctly made in the complaint in this action, is that the purchaser of the land under the irregular order of sale mentioned, and the present defendants, Peterson and Sutton, had notice of such irregularity, and at the time they respectively purchased the land, had also notice of the claim of the plaintiffs (except James Cliesnutt) that it belonged to them, and they had valid title for the same. No issue in this respect was tried, nor does it appear from the case on appeal, that Abram Mathis, who purchased directly under the order of sale, had notice of such claim of the plaintiffs. It does appear affirmatively that the defendant Sutton had such notice, and by inference that the defendant Peterson likewise had, but the Court, before passing upon the merits of the' case, should have ascertained whether Mathis had or had not like notice. If he had, and it had so appeared on the trial, it may be that the Court would and ought to have given judgment in favor of the plaintiffs.

The pleadings in their compass and effect, required that such an inquiry should be made, and the action could not ,be properly determined without it.

There must therefore be a new trial. To that end let this opinion be certified to the Superior Court according to law. •It is so ordered.

Error. Reversed.