dissenting.
My interpretation of the law applicable to the facts is so divergent from the interpretation placed thereon in the majority opinion that I feel impelled to express my dissent.
This controversy is between a petitioner in a bill of review on the one hand, and a purchaser at a judicial sale, who paid the purchase price, obtained his deed, entered possession and made improvements upon the real estate. The petitioner was an original party to the cause who failed to demur, plead or answer complainant’s original bill, although personally served with at least two summons. Under these circumstances, what should be the attitude of a chancellor toward the contention of the parties? The answer is found in both the statutory law and adjudicated cases.
Judge Keith, in Jesser v. Armentrout, 100 Va. 666, 671, 42 S. E. 681, said: “Not having demurred, pleaded, or answered, appellants’ contention is presented to us in its least favorable aspect, for it stands upon the case made by plaintiffs in their pleadings and proof, but appellants are not thereby precluded from showing that those pleadings and proof are insufficient to warrant the decree rendered.” So, unless we are to entirely ignore the old and favored equity maxim, vigilantibus non dormientibus jura subveniunt (the laws come to the aid of the vigilant and not the sleeping ones), we must require the appellant to clearly establish harmful error upon the case made by the pleadings and proof, for “this maxim not only covers generally the subject of laches, * * *, but it has also been employed very broadly to deny relief generally to those who neglect to take care of themselves, and who thereby suffer losses which ordinary care would have prevented.” 10 R. C. L. 388.
The other party to this controversy, the appellee, is a purchaser for value at a judicial sale which has been confirmed and a deed executed and delivered. In Moore v. Triplett, 96 Va. 603, 612, 32 S. E. 50, 52, 70 Am. St. Rep. *336882, this court, speaking through Judge Riely, said: “Judicial sales are constantly taking place, and it must continue to be so as long as.there are debts to be collected, and liens to be enforced. Great care should be observed that the practice of the court in acting upon a report of sale should ■not be such as to deter or discourage bidders, but such as to induce possible purchasers to attend such sales, to encourage fair, open and competitive bidding in order that the highest possible price be obtained, and to inspire confidence in the stability of judicial sales. This is due not merely to the purchaser, but also to creditors, debtors, and the owners of property which has to be sold by the court.” This language was quoted by Judge Keith with approval in Watkins v. Jones, 107 Va. 6, 8, 57 S. E. 608. These two cases have been repeatedly cited and followed by this court, and recently in Mitchell v. Carwile, 167 Va. 276, 189 S. E. 168.
We have then, on the one hand, a slothful appellant who, by her own neglect, though given ample opportunity, failed to present her present contention in due season and before the entry of the final order. On the other hand, we have a party who, prior to the sale, had no personal interest in the proceedings, but who rendered aid to the court by participating in the bidding at a judicial sale and thereby voluntarily became interested in the subject of litigation.
With the conduct and standing of these litigants in mind, we turn to the record to ascertain whether or not either party has been substantially injured by the action of court. This record shows that, at the time the decree of sale was entered, there were encumbrances totaling $412.69 binding upon the real estate of which Patton Newsom died seized and possessed. These encumbrances consist of the following four classes: (1) Taxes, (2) cost of suit, (3)' judgment of complainant, and (4) the amount due by decedent’s estate on open account for services rendered him by doctors and nurses.
At the time the sale was ordered, there was nothing in the record to suggest' to the trial court that the judgment *337debtors occupied any other relation than that of co-debtors. Then, as between the judgment debtors, the real estate of each is chargeable with one-half the amount of the judgment debt. On this assumption the encumbrances on appellant’s real estate may be listed as follows: $81, one-half of the judgment, interest and attorney fee; $12.20, unpaid taxes; and $40, one-half of the cost of suit; or a total of $133.20. Her real estate brought $190 at public auction. Charging $20 for a proportionate part of advertising, commissions, auction fees and expenses of deed would leave a net amount from this sale of $170. Deducting $133.20 from this amount leaves a surplus of $36.80. It seems that Ida Mae Newsom has a valid claim to this sum and, on proper application, doubtless the trial court would order it to be paid to her.
A bill to review a final decree may be entertained only when there is an error of law apparent on the face of the decree, or to bring to the attention of the court after-discovered evidence. Appellant makes no effort to bring her case within the rules applicable to newly discovered evidence, although she does not confine her attack to errors apparent upon the face of the decree, as she alleges that she was surety for her deceased husband on complainant’s judgment. This is an allegation of fact which, if true, was known to appellant, and, if she desired to avail herself of it, she should have made it prior to the entry of the final order. Notwithstanding this established rule, it is advanced in the majority opinion as one of the reasons for reversing the decree of the trial court. When this case is called by the chancellor below pursuant to the remand of this court, how is he to ascertain that appellant is not jointly bound on the judgment debt, but is a surety. Code, sec. 6122, prohibits any respondent from filing an answer or making any defense after ninety days from the return date of the process.
In Stiers v. Hall, 170 Va. 569, 197 S. E. 450, we held, under this statute, that such a dilatory respondent was not entitled to call any witnesses or introduce any evidence in *338his own defense, and that he was confined to cross-examination of witnesses introduced by his adversary. In the case at bar, there is no necessity for the creditor to call any witnesses. The proof of his claim is established by the record. Hence, if the provisions of this statute and the decisions applying it are followed as they should be, a reversal of the trial court’s decree will not and should not enable appellant to make any defense or to call any witnesses to prove that her real estate is not bound for the payment of one-half the amount of judgment, taxes against her property and the proportionate part of the cost of suit.
Appellant further contends that it is error apparent upon the face of the decree to order a sale of real estate without reference to ascertain two things; first, an account of liens, and, second, that the real estate will not rent for enough in five years to pay the amount of the liens.
The fundamental purpose of determining the liens and encumbrances before ordering a judicial sale is to remove any cloud upon the title, and to inform different creditors of the dignity and priority of their liens so that they will be encouraged to bid upon the property to prevent a sale at a sacrifice. With stability of judicial sales in mind, this and other courts have frequently said that it is premature and erroneous to order a sale of land without first ascertaining the amount of encumbrances and their priorities. But, if the reason for the rule of law is lacking, what is to be gained by enforcing a general statement? The reason of the law gives it life and vitality.
This question was discussed by Judge Keith in Shickel v. Berryville Land, etc., Co., 99 Va. 88, 95, 37 S. E. 813, 815, where he quotes Judge Burks in Shultz v. Hansbrough, 33 Gratt. (74 Va.) 567, thus: “‘The principle on which the decisions in both classes* of the cases are founded is, that *339a sale without first removing a cloud from the title, and adjusting and settling rights in dispute, and without previously ascertaining and determining the liens and encumbrances, the amounts, and priorities, tends to a sacrifice of the property—as to creditors, by discouraging them from bidding, when they probably would have bid, for the protection of their own interests, if the rights of all parties had been previously ascertained and fixed with reasonable certainty.’ ”
Judge Keith then continued: “But the reasoning, it will be perceived, rests upon the assumption that there are liens to be ascertained, and priorities to be determined.
“That a court of equity will not assume the existence of liens when there is nothing in the record to suggest them, plainly appears from the case of Muller v. Stone, 84 Va., at page 834, 6 S. E. 223 (10 Am. St. Rep. 889). In that case there were certain liens resting upon the property, whose amounts and priorities were stated in the answer. There was no dispute as to them, and no evidence of the existence of other liens, but it was insisted that it was error to decree a sale without having first directed an account. ‘What reason was there,’ this court asks, ‘for an account of liens? Or what reason was there for¡ apprehending a sacrifice of the property if sold without an account being taken? None whatever. There is not even a suggestion in the record that there are any other liens on the land than those mentioned in the answers, and as to those, we repeat, there is no conflict or dispute.’ ”
Applying these principies to the facts in this case, there is no suggestion in the record that there are any other liens upon the real estate of appellant. If there had been, there can be no reasonable doubt that the careful, astute and able counsel, who was evidently employed after the sale of her land had been confirmed, would have made that allegation in the bill of review prepared by him. There was no controversy prior to the order of sale about the liens binding upon appellant’s land. There is no controversy now about that fact. Upon what alleged or controverted fact is the *340commissioner to report? The amount of the judgment is not questioned. The general rule was promulgated, as Judge Keith so aptly says, upon the basis that there were different liens to be ascertained and priorities to be determined. Some ancient and learned jurist made the general statement and, in so doing, supported it by substantial reasons. The majority opinion applies the abstract rule, knowing that the reasons for it are entirely lacking. This is holding to the shadow, with full knowledge that the substance is gone. Shakespeare describes the situation thus:
“I have no other but a woman’s reason;
I think him so because I think him so.”
The only case, in- Virginia which applied the abstract rule when the reason therefor did not appear in the record is Gemmell v. Powers, 170 Va. 43, 195 S. E. 501. Strangely enough that case was based largely upon the decision in Kirby, v. Booker, 122 Va. 291, 94 S. E. 775, wherein it appeared that the object of the suit was to sell real estate for the payment of debts due- by a decedent. Judge Burks, speaking for the court, stated that the evidence did not establish the amount and value of the personalty owned by the decedent at the time of his death, that there appeared to be various liens upon the land, but the amount of the liens and their priority was not definitely ascertained before the order of sale. The facts, as pointed out in the dissenting opinion in the Gemmell Case, were quite different from those in Kirby v. Booker, supra. The error which we committed in the Gemmell Case should not be perpetuated. It is the function of a court to decide actual controversies duly and timely presented. Litigants should not be permitted to raise questions in a bill of review which they should have raised in an answer to the original bill.
In the case at bar the purchaser is not complaining. He is satisfied with his title. He would not be if there were unreported liens. No creditor is complaining. The complaining party is the defaulting debtor. She does not allege *341that the property was sacrificed, or brought less than its market value. She bases her contention solely upon the ground that the trial court failed to apply a rule of thumb.
It is conceded in the majority opinion that it is alleged in the original bill that the rents and profits would not pay and discharge the liens within five years, but it stated that there was no proof of this fact in the record. Well—that allegation is not denied and every opportunity was given appellant to deny it. What is not denied is taken to be true. In addition, it is to be noted that no attack is made upon the conduct of the sale. It was duly advertised, a good crowd attended. It follows that the real estate of appellant brought its market value—namely, $190. Is it reasonable to suppose that vacant lots worth only $190 in a village will earn $133 in rent within five years?
If appellant, by her failure to file an answer, is not entitled to make any affirmative defense to complainant’s contention, what will she gain by a reversal of this decree? She does not allege that she owes other lien debts, or that the property was not sold advantageously. The appellant’s conduct has been such that we should consider her contention “in its least favorable aspect.” She has shown nothing to her prejudice which could not have been avoided if she had been vigilant in presenting her contention to the trial court. If we give assent to her contentions, we do so at the expense of a purchaser at a judicial sale, a party whose position the court has heretofore regarded with favor. To up-set this sale upon the facts disclosed by this record would necessarily have the effect of chilling bidding at judicial sales and tend to render judicial sales unstable.
One class is where a trustee with power of sale attempts to make such sale while there is a cloud resting on the title of the property, or there is doubt or uncertainty as to debts secured or the amounts. The other class is where the aid of equity is sought to sell land to satisfy encumbrances.