dissenting.
I approve the majority opinion, except that part of it which holds that it is reversible error to order a sale of the 112.9 acres without referring the case to a commissioner in chancery to take account of liens.
As I conceive the law to be, it is not the duty of a commissioner to whom a case is referred to ascertain all pos*53sible liens that may be on the land against every person whose name appears in the chain of title. To require this investigation would make the cost of a creditor’s suit almost prohibitive, besides most purchasers prefer to select their own attorney to make abstracts of title.
The bill in the second suit alleges the balance due on the liens reported by the commissioner in the first suit, and “Your complainant alleges that there are no other liens against the tract of land other than the aforesaid judgment of your complainants, and the judgment in favor of the said W. H. Kemble, both of which are of even priority, except there may be unpaid taxes on the said tract of land, and if so, they are of very small amount.”
There is no denial of the foregoing allegations in the lengthy answer filed by Thomas Gemmell and wife. The issues raised by the answer do not involve the amount of the obligations, or the amount of credits made thereon. The contention of the respondents was that the liens had been eliminated by operation of law, and a verbal contract with the purchaser of the 5,200 acres described in the first suit. Having decided this and other contentions against appellants, it would seem that an order of sale would follow as a matter of course.
The trial court did judicially determine the dignity and priority of all liens on the 112.9 acres of land as the following extract from the decree clearly shows.
“(e) The Court doth further adjudge, order and decree, based upon the report of the said I. C. Coley in the first above styled cause, and the evidence adduced in this cause, and the admissions of the parties hereto, that the following are the liens and their order of priorities against said 112.9-acre tract of land, namely:
“(1) All unpaid taxes assessed against said property. However, it being suggested to the Court that there are no taxes assessed against said property, it is ordered that said property be back-assessed by the proper official of the County for the last three years and the amount thereof placed upon the proper tax books.
*54“(2) Second in order of priority are the two judgments in favor of the Bank of Bristol and W. H. Kemble, as shown by the report of I. C. Coley.
“(3) Third in order of priority is the attachment issued in the second of the above styled causes and the levy made thereunder, but it is not the intention of the Court herein to sustain a lien except for the amount of the balance due upon the said Bank of Bristol debt, the Court having sustained the lien of the judgment for the balance due upon the bank’s indebtedness as a practical matter the lien of the attachment may be disregarded.
“The Court doth further hold that the judgment in favor of W. H. Kemble is also subject to credit of 6/25th of $9,500, being the pro rata part of the sale of the Stock Creek lands to which W. H. Kemble is entitled.
“(f) The Court doth further adjudge, order and decree based upon the proof in both the above styled causes, and the report of I. C. Coley, that the said 112.9 acres of land will not rent for sum sufficient in five years to pay the aforesaid judgment liens' in favor of the said complainants.” (Italics supplied.)
The majority opinion holds, that notwithstanding an undenied allegation in the bill to the effect that there were no liens against the 112.9 acres while it stood on the land books in the name of T. S. Mitchell, and that the amount, dignity and priority of the liens binding the land in the name of the judgment debtor had been determined by a commissioner and confirmed by the court in a prior decree, it is reversible error to have ordered the land sold without investigation of an undenied fact by a commissioner in chancery. This ruling is not made at the request of a lien creditor, but at the request of a non-resident lien debtor, who has not paid any taxes on the 5,200 acres of land since he acquired it in 1929, nor has he permitted the 112.9 acres to be assessed for taxation since he became the purchaser.
I think the entire decree of the learned chancellor should be affirmed.