To a petition for rehearing—
CHIEF JUSTICE LEWISdelivered the following response :
By the fifth section, seventh article, of the statute under which the property of appellees was sold, it was made the. duty of the court confirming, not the court decreeing, a sale of it to reserve in the order of confirmation their right to-redeem at any time within three years from the date thereof, and to also prescribe the terms upon which they might ex*597■ercise that right. But the order of confirmation made June 24, 1870, contained neither a reservation or recognition of the right, but was made absolute and unconditional.
By the same section it is provided that the court shall not cause a conveyance of .the property to be made to the purchaser until the time for redeeming has expired. But the ■court, in the same order, directed the commissioner to then execute a deed to the purchaser, Barbee.
Barbee had no right to the possession of the property until the expiration of three years from the ■ date of the order of confirmation, and then only upon the failure of appellees to redeem. But he held the possession from 1857 until 1879, when the judgment now appealed from was rendered, undisturbed by the order of June 24, 1870.
So that if, after the expiration of sixty days from the date of that order, when under section 800, Myers’ Code, the power of the court to vacate or modify it ceased, appellees had offered to redeem the property, they would have found appellant Barbee in possession, claiming under a deed made fin pursuance of an order that the court was then without the power to set aside,' and their right to redeem ignored, if not adjudged to have terminated.
There is no other way to account for such palpable violation of the statute, except upon the idea that the court, when the order of June 24 was made, was of the opinion that the right of appellees to redeem had expired at the end of three years from the date of the sale made in 1857, and did not then exist at all; and it is difficult to avoid that ■conclusion if, as counsel for appellant contends, the reservation of the right to redeem made in the judgment for the sale of the property is to be considered as a substantial and sufficient compliance with the statute.
*598The legal effect of the order of June 24 was to make the-right of appellees to redeem questionable, if it was not conclusive against them, and to compel them, though willing- and able to redeem, to resort to proceedings not required by the letter or spirit of the statute in order to recover of appellant possession of their property, and to divest him of the title which the court had prematurely and improperly caused to be conveyed to him.
The limitation of three years, therefore, did not begin to-run until the judgment appealed from was rendered, when, for the first time, the right to redeem was recognized, and the free and unobstructed exercise of that right provided for in the manner required by the statute.
The petition for rehearing is overruled.