The only error assigned by the plaintiff to the proceedings had in this ease in the court below is the overruling his exceptions to the report of the commissioners appointed by the court to partition the land, as ordered by the decree, between himself and Bryan and wife, his co-defendants in the District Court, as the representatives of the estate of James Hilliard, deceased.
The third exception to the report of the commissioners, which is the only one which counsel for plaintiff in error *270seems, as we think very properly, to regard as worthy of discussion, is that the affidavit of the commissioners to their report is not sufficient in law. In support of this objection, we are referred to section 9 of the act of May 27, 1873, amending section 139 of the act prescribing the mode of proceeding in the District Courts in matters of probate, passed August 15, 1870. As the affidavit of the commissioners does not purport to conform to the section of the statute to which we are cited, undoubtedly, if it is essential that it shall be verified as therein prescribed, the exception to it will be taken. But we cannot agree that this law has any application to the partition to be made by these commissioners. The commissioners, whose duties are prescribed by this law, are those who are appointed to make partition between estates and other part owners in proceedings in the District Court in matters of probate. This law certainly does not furnish an imperative rule in making partitions in other character of proceedings. The court, in this case, was in the exercise of its general jurisdiction as a court of equity. When a partition is to be. made in a proceeding in probate, three commissioners, householders of the county, are to be appointed, (Pas. Dig., art. 5605,) a majority of whom must concur in the report. In this case seven persons are selected by the parties, any three of whom, it is agreed, shall make the partition. This difference in the character of the commissioners, without reference to the subject-matter and purpose of the suit, would, of itself, be sufficient to show that neither the court nor parties supposed, when the commissioners were named, that they were required to make their report in conformity with the rules prescribed in the law regulating proceedings in probate, as it stood at the time they were appointed, or as amended a few weeks previous to the filing of their report in court. The partition having been ordered by the court, in the exercise of its general jurisdiction, it was authorized to receive and act upon it, and *271either affirm or set it aside, as justice and equity demanded, and upon such evidence of its verity and fairness as to it might seem right and proper. (Danl. Ch. Pr., 1826, 1329, 1339; Story’s Bq. Jur., sec. 651, et seq.)
Although not included in the assignment of error, plaintiff insists that the judgment should be reversed: first, because no service of process was had upon him, nor did he appear by answer, and therefore he maintains the decree, which purports to have been entered by consent of parties, is not binding upon him; second, the heirs of Hilliard are necessary parties, and the judgment partitioning the land without their being before the court is erroneous. The right to insist upon these objections, without having assigned them as error, is claimed under the practice of the court to consider errors which go to the foundation of the action, although not assigned; and also from the fact that the defendant in error, Crawford, opened the record for consideration of all errors apparent upon it by a suggestion of delay. This last proposition is not tenable; for although the practice of the court is'such as is suggested, it is so only when the cause has been submitted to the court as a delay case. The defendant in error, it is true, made the suggestion and proposed to submit the cause, at one time, as a delay case, but he withdrew the suggestion before the case was submitted by plaintiff in error. We cannot therefore hold that the latter can claim any benefit from this suggestion. But if the objections go to the foundation of the action, under the established practice of the court, the plaintiff in error may, no doubt, avail himself of them. We will therefore consider them in this point of view.
In support of the first of these objections, we are referred to the decisions of this court, in which it is held, where some of the defendants have been served with process, while others have not, the recital in the judgment entry, that the defendants appeared, &c., &c., Will be construed as referring only to such defendants as have been served. *272But this rule is not applicable to this case. The reason of the rule is that the entry, by this construction, is hot in conflict with the facts, as they appear from the entire record, but in harmony with them. In this case the decree of the court says it was entered by consent. And it shows upon its face that the plaintiff was a party to it, and that he was affected by it, if not the beneficiary of most of its provisions.
But if it did not sufficiently appear from the judgment that plaintiff in error was in court and consented to the decree, he certainly made an appearance when he filed his objections to the report of the commissioners; and as he there made no objection to the decree, but, on the contrary, insisted that the commissioners had not conformed to its requirements, it is unquestionably too late for him to make the objection, for the first time in this court, that he was not a party to or bound by it.
Nor can we admit that the failure to make the heirs of Hilliard parties can be urged for the first time in this court, and that, too, without being assigned as error, to reverse a judgment rendered, as this was, by consent. If the judgment affects these heirs in any way, what right has the plaintiff in error to complain of it ? Certainly it is not his duty to protect their interest. When they object to the sale of the land ordered by the decree, it will- be time enough for the court to inquire into it. If it be admitted that they are interested in the land which is to be sold under the decree—and as they were not parties to the suit, they may hereafter assert their title against the purchasers—this may no doubt greatly detract from the market value of the land to be sold, and may result in injury to the plaintiff or to Crawford, as the amount which the land would bring under other ¿ircumstanees may be greater or less than the debt in payment of which it is sold. But whatever may be its effect in this respect, it results from the agreement of the parties themselves, and this court *273cannot interfere on the suggestion of one of them, made for the first time in this court, that this will be its effect.
There is no error in the judgment of which the plaintiff in error can complain, and it is therefore affirmed.
Affirmed.