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the benefit of the excess. But Sproul insisted that Hunter should also guarantee the shortage, if any, which he declined to do. He proposed, however, to return the cash payment and deliver up the bonds, and bear the loss of the revenue stamps on the deed, "and call the matter off." This counter proposition Sproul declined, remarking that he had paid a fee for examining the title. Hunter then expressed his willingness to bear one-half of that expense, but Sproul rejected both offers. In point of fact the land has never been surveyed, and the alleged deficiency was not otherwise shown to exist.

2. Viewing the controversy from a different angle, we are of opinion that the sale was a judicial sale. The minds of the parties never met on any other hypothesis. The executors had already invoked the aid and direction of the court in the administration of the estate and the discharge of their duties as executorial trustees. The court had assumed jurisdiction of the parties and the subject matter, and, from time to time, entered decrees in furtherance of the objects of the suit. In these circumstances, it was plainly the duty of the executors, whatever may have been their powers under the will, to submit this transaction, perhaps the most important that had arisen in the course of their administration, to the judgment and decision of the court. Accordingly, Hunter's acceptance of appellants' tentative offer to purchase the farm was expressly made subject to the confirmation of the court. This qualified acceptance was approved by his co-executor and received without objection by the appellants; and there is nothing in the record to suggest bad faith on the part of the executors in pursuing that course. The procedure adopted by counsel for the executors to effectuate the purpose of the parties was customary and proper. The petition and decree prepared for the court's action were submitted to counsel for the appellants, and (with full opportunity for examination, and investigation of matters to which they called attention), without objection, the decree ordering the

sale was entered; and subsequently the report of sale, likewise without objection, was approved and confirmed by a decree of the court.

It is the settled rule in this State that although executors have power under the will to sell the property belonging to the estate, the possession of such authority in no way deprives them of the right to go into a court of equity for aid and guidance in the discharge of their duties, and to have the property sold under its decrees. Shepherd v. Darling, 120 Va., 13 Va. App. 448; Gooch v. Old Dom. Tr. Co., 121 Va., 14 Va. App. 21.

Testator's will was the source of appellants' title, and that instrument and the petition for the sale apprised the intending purchasers that the farm for which they were negotiating was supposed to contain 775 acres. Still, they stood by and suffered the court to direct the sale upon that assumption, and afterwards to confirm it, without objection. At a subsequent term, it is true, they sought the aid of the court to relieve themselves from the consequences of an assumed deficiency of acreage in the farm. But we think it clear that the sale was a judicial sale, and the doctrine is well settled in this jurisdiction that the principle of caveat emptor strictly applies to judicial sales. Speaking generally, all objections of which the party complaining had previous knowledge come too late after a decree of confirmation. The case of Long v. Weller, 29 Gratt. (70 Va.) 247 (371), is a leading case on the subject. The opinion was delivered by Burks, J., who cites in support of the principle above announced the following cases: Thelgeld v. Campbell, 2 Gratt. (43 Va.) 336, 358; Daniel v. Leitch, 13 Gratt. (54 Va.) 195, 212-213; Hay v. Watson, 28 Gratt (69 Va.) 698, 711.

There is striking resemblance between the case in judgment and that of Terry v. Coles, 80 Va. 695, 700-702; indeed, the two cases are not distinguishable in principle. In the latter case it was held: "Sale made by order of a court of competent jurisdiction, pendente lite, is a judicial sale.

An executor having authority under the will to sell land, declines to exercise his authority, but applies to the court for instructions and directions, and is ordered to make sale and to report it to the court for confirmation; whereupon he makes and reports the sale to the court as ordered, such a sale is a judicial sale."

These cases sufficiently illustrate the controlling principles involved in this case, and render the further review of the authorities unnecessary.

Upon the whole case, we think the decree of the corporation court was plainly right, and it must be affirmed.

Affirmed.

STULTZ v. COMMONWEALTH.

(Richmond, November 15, 1917.)

(Sea syllabus Cochran v. Commonwealth, ante.)

Error to Circuit Court of Rockingham County.

Affirmed.

John W. Morrison and Charles A. Hammer, for the plaintiff in error.

Attorney-General Jno. Garland Pollard, Assistant Attorney-General J. D. Hank, Jr., and Leon M. Bazile, for

the Commonwealth.

SIMS, J.:

The facts in the instant case are similar to those in the case of Charles Cochran V. Commonwealth, in which the opinion of this court is handed down at this term, and precisely the same questions are involved and decided, except that instruction No. 1 offered by the accused and refused by the trial court in Cochran's Case was not offered or given in the instant case. Hence the opinion in the former case is hereby adopted and referred to as the opinion in this case, with the single exception of what is said therein

with respect to said instruction No. 1; and for the reasons given in such opinion the instant case is affirmed.

Affirmed.

VIRGINIA LUMBER AND EXTRACT COMPANY v. O. D. MCHENRY LUMBER COMPANY.

1. DEEDS

(Richmond, November 15, 1917.)

Construction-Personal Property "Apparatus."-Under a deed conveying a lumber plant, the word "apparatus" held to cover tools used in the work of operating the plant and necessary for that purpose, and office and camp furniture and fixtures, consisting largely of household furniture; but not mere stores of such articles as would be needed to replace parts of machinery that might break or wear out. 2. EQUITY-Report of Commissioner-Weight.-The report of a commissioner, especially when the evidence has been taken in his presence, is entitled to great weight and should not be disturbed unless its conclusions are clearly at variance with the evidence. 3. LIMITATIONS-Defense-Burden of Proof.--Where the three year statute of limitation is relied on as a bar to a recovery, the burden is upon the party invoking the statute to show by a preponderance of the evidence that the cause of action arose more than three years before suit was brought.

Appeal from Circuit Court of Botetourt county.

Affirmed.

Caskie & Caskie, for the appellant.
Haden & Haden, for the appellee.

KELLY, J.:

The appellee, O. D. McHenry Lumber Company, being the owner of a tract of land upon which it was operating an extensive saw-mill plant, on the 1st day of March, 1910, executed a deed of trust upon the land and plant. In that deed the description of the property concluded as follows: "Together with all mills, houses, buildings, structures, railroads, tramways, logging roads, cars, engines, machinery and apparatus of every kind and character (except public roads and rights of way and other property and appurtenances of railroad companies) now or hereafter built or connected with, or placed on, the real estate herein before de

scribed, or any portion thereof, with all the appurtenances thereto, and all other lands, timber, timber rights, and rights of way of the company in the counties aforesaid.

"It is the true intent of the parties hereto that this instrument shall convey the above described property, together with all buildings, structures and improvements of every kind and character which have heretofore been or may hereafter be placed upon said mortgaged property." After the execution of the deed of trust, the company remained in possession and continued to operate the plant until the 22nd of December, 1911, when it executed a five year lease of the entire property to one E. W. Mulligan, with an option to Mulligan, at any time before the expiration of the lease, to purchase the leased premises at a specified price. This lease was made for the benefit of the appellant, Virginia Lumber and Extract Company, and was duly assigned to it. The deed of trust is material to the case because, and only because, the description of the property as contained therein determines the property embraced in the lease. There is a slight variance in this respect between the deed and the lease, but this was manifestly accidental and and unintentional, and the terms of the lease as a whole leave no room to doubt that the parties intended the lease to cover the identical property which was included in the deed.

The appellant at once assumed possession, and operated the plant under the lease until March, 1915, when it notified the appellee of its intention to avail itself of the option and purchase the property.

The primary question in this litigation is whether certain personal property situated on the premises at the date of the lease taken into possession and use by the lessee and now claimed by it as purchaser, was intended to be included in the lease, and, of course, in the sale also if the option to buy should be exercised. The appellant being a nonresident corporation, the appellee brought an attachment

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