delivered the opinion of the court:
The modified decree of the circuit court entered pursuant to the mandate of this court contains an order to the effect that the land in question shall be sold, but it directs the master not- to proceed with such sale “until the further order of the court and. upon the application- of some of the parties in interest herein showing that the parties in interest cannot, between themselves, agree upon the time of such sale and are unable themselves to make such sale.” Appellees filed the petition herein, alleging that appellants had declined to make a sale or to agree upon a time for the master to make one. In this connection they further allege that Ingraham’s estate is no longer able to pay the carrying expenses of the land, so that it may be sold for taxes; that the appellees are unable to distribute Ingraham’s estate, although he had, at the time of the filing of this petition, in 1905, been dead twelve years and that legatees threaten to compel distribution.
If the decree of April 15, 1902, be allowed to stand the land must be sold, the question of the time of such sale only remaining to be determined. The appellees by their petition seek to hasten the determination of that question. In order to do this they must, according to the terms of the decree, show that the interested parties cannot, “between themselves, agree upon the time of such sale and are unable to make such sale.” Have appellees followed the petition with proof sustaining their allegations in this regard? We have only to look to the admissions of appellants, made on the witness stand, for proof that appellants refuse to consent to a sale at this time or to fix upon a definite time for the same. They insist that this is not a favorable time to sell. As to this the evidence is conflicting, but we think the weight of the evidence supports the contention that conditions, while not as favorable now as in 1891 or 1892, are as favorable as they are likely to be soon. The evidence shows sales of other acre property in the southern portion of the city and that some of these sales were at good figures. A number of improvements are being made in that locality, factories are being built in the vicinity of the land, street car lines extend along one edge of it, steam railroads pass within from half to three-quarters of a mile of it in different directions, and the belt line passes near it on the south. The activities going on in the section of the city and country surrounding the land in question indicate that the present is a reasonably favorable time for the sale of this property. The decree of the circuit court herein directs the master to proceed with the sale upon the expiration of six months from the date of the decree. This would afford ample time for advertising the property and for procuring bidders at such sale. We do not think the court erred in entering the decree and ordering, the sale to proceed.
We do not see wherein the modification allowing the purchaser to pay all cash on the approval of sale or to defer such payments, at his option, can work harm to any one, and we find no error in the ruling of the trial court in this regard.
Appellants have, as plaintiffs in error, sued out a writ of error for the purpose of bringing to this court for review the decree entered in the circuit court on April 15, 1902, and that case has been consolidated with the case at bar on the hearing.
It is alleged that the decree of April 15, 1902, is erroneous in prescribing the order of payment in making distribution; that the provision that the parties should bear any loss pro rata, and the order allowing appellees to become purchasers at the sale, are also erroneous. A comparison' of the decree of April 15, 1902, with that of July 6, 1900, shows that they are in all essential particulars identical except as to the provision concerning the payment of interest on the $30,000, which was modified in accordance with the mandate of this court. In prescribing the manner of distribution the decree follows the views expressed in Ingraham v. Mariner, supra, using the language of this court in substance. The expressions “first,” “second,” “third” and “fourth” at the beginning of the distributive clauses in the decree are mere enumerations of payments to be made, and are not intended to give priority to any claim. The decree contemplates that all the items enumerated shall be paid in full if the proceeds of the sale shall afford sufficient funds, otherwise the losses shall be borne pro rata. The court committed no error in this particular.
The contention that Ingraham’s executors should not be allowed to become purchasers at this sale is not well taken. The parties are placed upon an equality in this regard by the decree, both or either being allowed to become purchasers if they overbid other buyers. The decree of July 6, 1900, contained the same provision, and the question is res judicata and is not open for review in this court.
The decree of April 15, 1902, made pursuant to the mandate of this court, and the decree of March 22, 1905, ordering the master to proceed with the sale of the land in question, are affirmed.
J95crm affirmed.