cial sale by himself or agent, or who was present and had the opportunity to bid, will not, as a general rule, be permitted to put in an "upset" bid. He should have bidden at the sale, in open competition with all others, what he was willing to give for the property. And in Bright v. Bright, 80 Tenn. (12 Lea) 630, it is affirmed that the biddings at judicial sales are opened for the benefits of the litigants, not of third persons, and therefore an application is properly refused where the complainant's debt is paid by the bid and the purchaser is the owner of the property.

No fixed rule has been laid down as to the amount of an upset bid which will move the court to set aside a sale, except that the advance must be a substantial and material one: Hodgins v. Lanier, 23 Gratt. 494; Hansucker v. Walker, 76 Va. 753. An advance of ten per cent is generally regarded as sufficient to authorize the opening of a sale: Pritchard v. Askew, 80 N. C. 86; Dula v. Seagle, 98 N. C. 458, 4 S. E. 549; Irby v. Irby, 79 Tenn. (11 Lea) 165; Ewald v. Crockett, 85 Va. 299, 7 S. E. 386. In Cole's Heirs v. Cole's Exr., 83 Va. 525, 5 S. E. 673, where the court refused to accept an advanced bid of thirty per cent of the price for which land had been sold, and confirmed the sale, the decree was reversed on appeal and a resale ordered.

An advanced bid, although it need not be paid into court, must be absolute and unconditional, and such as can be considered safe and secured: Dula v. Seagle, 98 N. C. 458, 4 S. E. 549; Todd v. Gallego Mills Mfg. Co., 84 Va. 586, 5 S. E. 676; Stewart v. Stewart, 27 W. Va. 167; Blackburn v. Selma R. R. Co., 3 Fed. 689.

If a judicial sale has been set aside and a resale ordered, on an advanced bid, the resale should be started on such bid and be open to all: Marsh v. Nimocks, 122 N. C. 478, 65 Am. St. Rep. 715, 29 S. E. 840; Ewald v. Crockett, 85 Va. 299, 7 S. E. 386. In default of other bidders, the person making the advanced bid will be declared the purchaser; and upon his failure to comply with his purchase, a motion should be made in the pending action for him to show cause why judgment should not be rendered against him: Marsh v. Nimocks, 122 N. C. 478, 65 Am. St. Rep. 715, 29 S. E. 840. In Allen v. East, 63 Tenn. (4 Baxt.) 308, where one making an advanced bid failed to comply with it, the court ordered a resale and charged him with the deficit.

After a sale has been confirmed it will not be opened upon an offer of an advance, in the absence of fraud, accident, mistake, or some other special circumstance: Houston v. Aycock, 37 Tenn. (5 Sneed) 406, 73 Am. Dec. 131; Coffin v. Corruth, 41 Tenn. (1 Cold.) 194; Langyher v. Patterson, 77 Va. 470; Yost v. Porter, 80 Va. 855.

And a sale will not be opened a second time for advanced bids, except under extraordinary circumstances: Click v. Burris, 53 Tenn. (6 Heisk.) 539; Collins v. Wood, 88 Tenn. 779, 14 S. W. 221.

a.

III.

Courts Rejecting English Practice.

In General. Many of the American courts, probably a majority of them, have rejected the ancient English practice of opening judicial sales merely to receive advanced bids, and have affirmed that special circumstances in addition to the offer of a better price for the property must ordinarily be present in order to justify a refusal to confirm the sale, or to authorize setting it aside and reopening the bidding: See the principal case, ante, p. 143; Glennon v. Mittenight, 86 Ala. 455, 5 South. 772; Parker v. Bluffton Car-Wheel Co., 108 Ala. 140, 18 South. 938; Penn's Admr. v. Tolleson, 20 Ark. 652; Colonial etc. Mtg. Co. v. Sweet, 65 Ark. 152, 67 Am. St. Rep. 910, 45 S. W. 60; Ayers v. Baumgarten, 15 Ill. 444; Coffey v. Coffey, 16 Ill. 141; Harris v. Gunnell (Ky.), 95 S. W. 376; Lawson v. Hill (Ky.), 11 S. W. 606; Cohen v. Wagner, 6 Gill (Md.) 236; Page v. Cress, 80 Mich. 85, 20 Am. St. Rep. 504, 44 N. W. 1052; State Bank v. Green, 11 Neb. 303, N. W. 36; Conover v. Walling, 15 N. J. Eq. 173; Fiske v. Weigle (N. J. Eq.), 21 Atl. 452; Bethlehem Iron Co. v. Philadelphia etc. Ry. Co., 49 N. J. Eq. 356, 23 Atl. 1077; Le Fevre v. Laraway, 22 Barb. 167; Adams v. Haskell, 10 Wis. 123; Pewabic Min. Co. v. Mason, 145 U. S. 349, 12 Sup. Ct. Rep. 887, 36 L. ed. 732; Auerbach v. Wolf, 22 App. D. C. 538.

b. For What Reasons. The practice of the English court of chancery," said the court in Morrisse v. Inglis, 46 N. J. Eq. 306, 19 Atl. 16, "in opening sales, whenever an offer of a greater amount for the property was made, was early declared not to have been adopted in this state. There is a uniform current of decisions settling that official sales will not be opened on the mere representation that more may be obtained for the property. This well-known practice is in accord with the policy of our law respecting such sales, which are required to be made after advertisement sufficient to give publicity, by public outcry to the highest bidder. It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and, at least, when the price offered is not unconscionably below the value of the property. Nothing would more evidently tend to discourage and prevent bidding than a judicial determination that such a bidder may be deprived of the advantage of his accepted bid, whenever any person is willing to give a larger price. The interest of owners in particular cases must give way to the maintenance of a practice which, in general, is in the highest degree beneficial.''

Speaking of the duty of the chancellor in case of an advance bid, the court in Stump v. Martin, 72 Ky. (9 Bush) 285, said: "While it is his duty to look to the rights and interests of the parties litigant, and, where there has been fraud, accident, mistake, or surprise, to disregard the act of his agent and order a resale, where there is an entire absence of unfair dealing, and the sale has been conducted pursuant to the judgment, good faith requires that the

rights of the purchaser, as well as of the parties to the original proceeding, should be protected. It would be trifling with the stability of judicial sales, as well as the rights of purchasers, to permit those who were present at the sale, or who ought to have been present, to interfere after the sale is made, and after the bidding, for no other reason than that, since the sale, an advanced price has been offered for the property. . . . . Considerations of public policy demand that some confidence should be had in the stability of judicial sales, so as invite competition in bidders by an assurance, to men of fidelity and promptness in their business habits, that the chancellor is at least bound by the same rules of fair dealing that such men recognize in their business with each other': Alms & Doepke Co. v. Gates (Ky.), 32 S. W. 1088.

MOORE v. WILLEY.

[77 Ark. 317, 91 S. W. 184.]

PARTITION-Proof of Default.-Failure of defendant in a partition suit to answer does not dispense with the necessity for proof when the statute provides that "the petitioner shall nevertheless make out his case by exhibiting to the court his evidences of his title." (pp. 152, 153.)

PARTITION-Procedure.-While the statutory procedure in partition must be followed in suits at law, such is not the case in equity. The remedy provided by the statute is cumulative only. (p. 153.)

PARTITION—Sale of Property.-If a complaint in partition in equity asks "that the land be partitioned as the law in such case provides, and if not susceptible of division, that the same be sold, a finding that a sale is necessary, not based on the consent of the parties or the report of commissioners or on evidence heard by the chancellor, will not support the order of sale. (pp. 153, 154.)

PARTITION-Parties.-One who holds a vendor's lien on land held in common is not a necessary party to a suit to partition the land. (p. 154.)

Taylor & Jones, for the appellant.

Austin & Danaher, for the appellees.

317 RUDDICK, J. G. F. Willey and others brought a suit in equity in the chancery 318 court of Arkansas county against Mary K. Moore, for the partition of certain lands in that county owned jointly by plaintiffs and defendant as tenants in common. The defendant filed no answer, and the court heard the case on the complaint and the deeds exhibited therewith, and found that two of the plaintiffs were each the owner of an undivided eleven-thirtieths in

terest in the land, another plaintiff the owner of one-fifteenth interest, and that the defendant was the owner of an undivided one-fifth interest in the land; that the land was "not susceptible of division among the respective parties according to their respective interests therein without great prejudice to said owners." He therefore ordered, in substance, that the lands, for the purpose of division, be sold in bulk on a credit of three months, and that the sale be reported to the court for confirmation, and that the commissioner hold the proceeds subject to the further orders of the court. The defendant appealed from the judgment.

This is an appeal from a judgment ordering lands sold for the purpose of partition. It was alleged in the complaint that the lands could not be partitioned in kind without great prejudice to the owners thereof. The defendant filed no answer, and the chancellor, without referring the question to commissioners, found from the allegations in the complaint alone that partition could not be made in kind without great prejudice, and ordered a sale, and the question before us is whether the undenied allegation in the complaint is 319 sufficient to justify the court in making the order for a sale of the premises. We may admit that the court had jurisdiction, and that the order was not void, but this is a direct attack by appeal, and the question is, Was there error in the proceeding?

The question is not free from doubt. As the code provides that material allegations in a complaint which are not denied by the answer are to be taken as true, and as no answer was filed in this case, we were first inclined to the opinion that the judgment of the chancellor was right.

But the procedure in proceedings for partition is regulated by statute in this state. An examination of the statute will show that the failure of the defendant to answer does not dispense with the necessity of further proof, for it provides that, if default be made, "the petitioner shall nevertheless make out his case by exhibiting to the court the evidences of his title": Kirby's Digest, sec. 5775. Again, the statute provides that, if judgment for partition be rendered, no sale shall be made unless the commissioner appointed to make partition report that partition of the land cannot be made without great prejudice to the owners thereof. If they make such report, "the court

may, if satisfied that the report is just and correct," order a sale of the premises for partition: Kirby's Digest, secs. 5779-5785.

Now, while the procedure required by this statute must be followed by the law courts in partition proceedings before them for in the absence of the statute such courts would have no jurisdiction to entertain such cases-with the courts of equity this is not altogether true, for it was long ago decided that these statutes do not take away the original jurisdiction of the chancery courts. The remedy provided by the statute is cumulative only: Patton v. Wagner, 19 Ark. 233. For this reason we do not think the mere failure of the chancery court in this case to appoint commissioners to ascertain whether the land could be divided rendered its judgment void. In cases where there is doubt as to whether partition can be made we think it is well to appoint commissioners who can examine the premises and ascertain the facts and make report. But there may be cases where the facts show plainly that no partition in kind could be made without prejudice to the owners. For instance, suppose a brick store and the lot on which it is located is owned by several 320 parties jointly. In such a case, where proper allegations are made in the complaint, we think that the chancellor might well hear the evidence and make the order for a sale without a reference or the appointment of commissioners. But while it was not absolutely necessary for the court to appoint commissioners to ascertain whether partition could be made without a sale, we think that the court should have required some further showing before ordering the sale. have already called attention to the fact that our statute in reference to partition does not allow the failure of the defendant to answer to dispense with proof on the part of the plaintiff. Now, at common law, while courts of equity had jurisdiction to order a partition of land, they had no power to order a sale of the land for that purpose, unless by consent: Freeman on Cotenancy and Partition, sec. 15; 15 Ency. of Pl. & Pr., sec. 813. Some of the American courts hold that courts of equity in this country have that power, independent of statute. But the order to sell the premises, says Mr. Freeman, "should not be made until the court has entered its interlocutory judgment determining that the parties are entitled to partition, and has also,