ON REHEARING.
English, Judge:After a careful consideration of the arguments presented both at the time the cause was originally heard and upon rehearing, I am unable to reach a different conclusion from that arrived at in the foregoing opinion, which contains the reasons upon which it is based. In addition thereto, however, it may not be improper to, call attention to the fact that this two hundred and fifty acre tract was returned delinquent in the name of Nancy Brown, and, if the pro-■ cedings were of the most regular character, the state could have thereby acquired only such interest in the land as Nancy Brown possessed; and unless a perfect title was acquired by the State the subsequent procedure by the school commissioner could confer no more title than belonged to Nancy Brown at the date of the sale. The record shows that the marked poplar timber from twenty-six inches up, and all of the walnut timber, on said two hundred and fifty acre tract never belonged to Nancy Brown, because, the same was expressly reserved on the face of said deed by which she acquired title from her father, and that she sold and conveyed to McGhee three hundred and twelve yellow poplar, cucumber, and ash trees, twenty-two inches in diameter and upwards, marked “M,” and seven hundred and seventy-three oak trees then growing on said land, by her deed of September 28, 1895, which made said McGhee a complete purchaser of said timber long before the institution of this suit on November 19th following,' and although said deed was not recorded until the 28th of November, 1895, McGhee was not a pendente lite purchaser. This tract was returned as delinquent in the name of Nancy Brown, and as a consequence such title as she had was sold, and purchased bv the sheriff for the State. No return was made as to McGhee’s interest, and fo course no sale of same was made; and, unless his timber was sold, the State, as a purchaser, could not acquire *360the ownership of same. The commissioner of school lands could only sell such interest as was purchased by the State, and that was Nancy Brown’s title, and not the timber on the land which was reserved in the deed from her father, and which she had sold to McGhee.
It is claimed, this being a judicial proceeding, and the decree of sale having been executed and the sale confirmed, that, even if the decree be set aside, the purchaser’s title should not be affected, under section 8 of chapter 132 of the Code. This, however, has reference to a decree of confirmation, where proper parties are before the court. See Underwood's Ex'r v. Pack, 23 W. Va. 704; Hughes v. Hamilton, 19 W. Va. 368; Capehart's Ex'r v. Dowery, 10 W. Va. 131. If the commissioner of school lands had examined the title of Nancy Brown which he proposed to sell, he would have seen on the face of her recorded deed an exception of a large portion of Valuable timber thereon. As above stated, the deed from Nancy Brown to McGhee was executed on September 28,'1895, and admitted to record on November 19th following. The decree directing the sale of said tract was not rendered until September 23, 1896, and the decree confirming the sale bears date January 23, 1897. The purchase of this tract by Hoyle and Sampselle was made between these dates, long after the recordation of McGhee’s deed; and, this being a judicial sale, the doctrine caveat emjotor applies. See Ror. Jud. Sales, § 476, where it is said, “The rule caveat emfitora.^-<plies in all its rigor to judicial sales.” See, also, Id. § 174. These purchasers had constructive notice of McGhee’s title to the timber described in his deed, and they also had like notice of the fact that Nancy Brown uever owned the timber excepted from her deed. These considerations would apply if the proceedings by the sheriff to sell said tract were regular and proper, and vested title thereto in the State; but as we have held in the opinion handed down, and which I now adopt, said proceedings were irregular and not such as confer title on the State, either to the land or the timber standing thereon. As before, I conclude that the court erred in dismissing the appellant’s petition, and the decree complained of is reversed, and the cause remanded.
Reversed.