Only one question is presented. That is whether the proceedings and sale in the partition were a change of the interest of tho parties so as to annul the policy. A decree of sale in partition-had been made and the referee had sold the property. But there is no evidence that the order confirming the sale had been granted or ány deed executed.
*301The sale under a decree in partition is not absolute. It depends for its validity on confirmation by the court. Until confirmed it cannot be said that the interest of the parties had changed. For till that time it remains uncertain whether or not the court will grant a confirmation. It does not resemble a contract for sale between the owner and another person. Because that is binding, .when executed, and transfers an equitable right to the purchaser. He may enforce its performance. But clearly the purchaser in this case could not have brought an action in equity to compel specific performance. His only remedy would be to apply to the court to have the sale confirmed. And it may be remarked that if (as in this present case) the buildings had meantime been destroyed by fire, the court might take that into consideration and might, if equitable so to do, decline for that reason to confirm a sale where the purchaser would not receive the property in the same condition as it ivas when the referee sold.
We think the judgment should be affirmed, with costs.
Present — Learned, P. J., Boardman and Tappin, JJ,Judgment affirmed, with costs.