after stating the case, (ante p, 87, et seg.,) delivered the following opinion, concurring in part in the opinion of the majority of the court, and in part dissenting therefrom:
The principles which govern Courts of Equity, in the consideration of trustees’ sales, have been so recently and frequently announced, it is scarcely necessary to repeat them. In Bolgiano vs. Cooke, 19 Md. Rep., 392, such sales are declared to be subject to all the principles of equity applicable to judicial sales. Before the ratification of a sale, made by authority of a Court of Equity, all objections within these limits are open for consideration. The sale will be set aside upon proof of error, mistake, misunderstanding or misrepresentation, as to the terms or manner of sale. It must appear to be in all respects fair and proper, or it cannot receive the sanction of the Court. Tomlinson vs. McKaig, 5 G., 277. When a Court can see injustice will be inflicted by the ratification of a sale upon a party not in default, the sale should not be rati-*105fled.” 12 G. & J., 113, Penn vs. Brewer. 9 Md. Rep., 240, Kaufman vs. Walker.
In the consideration of this point, we forbear any inquiry into the regularity of the proceedings prior to the decree. Assuming those to be in all respects legal, we confine ourselves to the testimony touching the sale.
The property sold was a remainder in fee, expectant upon an estate for life. The purchaser failed to comply with the terms of sale for nearly four years; declared he would not take the land unless the title was guaranteed; waited until the tenant for life died, and its value was enhanced more than four-fold, leaving it exposed, in the meantime, to damage or destruction by fire, flood or inevitable accident, at the risk of the vendor. After the death of the tenant for life, without apprising the trustee of that event, the purchaser paid the purchase money, and claimed the benefit of his bid.
There is nothing in circumstances like these, requiring this Court to confirm the inchoate contract between its agent, the trustee, and the supposed purchaser. The parties in interest might well have inferred, from the laches of the purchaser, his subsequent absence from the State, and non-compliance with the terms, that the sale was abandoned. It would be gross injustice to them, to allow him, after the condition of the property was entirely changed, and its value quadrupled, to appropriate the profits resulting from advanced prices and altered circumstances, without binding himself to the bargain or incurring any of its risks. For these reasons, we think the order setting aside the sale should be affirmed.
The second question presented by the record is, whether there is ground for a bill of review, and the rescission of the decree in the original case, for the sale of the premises ?
The appellant insists there is nothing on the face of the proceedings that is irregular, unless the praying for the sale or partition of a remainder be error, which estate, he contends, is embraced by the Act of 1185, ch. 72, and other *106Acts referred to by him. This construction of that Act is,, we conceive, sustained by this Court in the decision of Bolgiano vs. Cooke, before cit«d. Referring to the Act of 1785, ch. 72, and others, this Court said: “These Acts being in pari materia, are to “be construed together'. They import that any interest or estate at law or in equity, in possession or remainder, belonging to infants held in common with others, or separately, may^ upon proper application by any of the parties in interest, &c., upon the Court’s being satisfied it is for the interest and advantage of the parties, be" sold by decree of the Court. The Acts here referred to, were not the Act to direct descents or its supplements, but Acts to enlarge the powers of the High Court of Chancery.”
The appellee does not rely on the want of power in the' Court, to decree a sale of such interests as are provided for under the Act of 1785, ch. 172, but on the irregularity of the proceedings in the case made, which brought it within the provisions of the Act to direct descents.
The decree appealed from is based, by the learned Judge, on the decisions of this Court, in the cases of Chaney vs. Tipton, 11 G. & J.; and Tomlinson vs. McKaig, 5 G., 258. In the former, this Court said: “ The bill is filed by one of the heirs claiming a sale, upon the ground, that the land is not capable of division, and resisted for the reason, amongst others, that it will admit of division. We thifik that such cases are particularly provided for by the Acts of Assembly regulating, descents, and that the proceedings should have conformed to those Acts. The rights of election, and preference secured to certain heirs by the Statutes referred to, must be regarded as intrinsically valuable. They become vested by the death of the intestate, and may be passed to a grantee. This, we hold, is utterly inconsistent with the right now claimed for another of the heirs, to file a bill for sale or partition in a mode which disregards the provisions of the descent laws, and places all the heirs in the same condition, in respect to priority of choice.” 11G. & J., 255.
*107This decision, in my judgment, would be entirely nugatory and unmeaning, if it wore optional with any one, so disposed, to evado its authority, by drafting his bill in conformity with the language of the Act of 1785, ch. 72, sec. 12; vested rights are not to be held at the mere will of any oí the parties in interest, nor would they be valuable if they depended on such a tenure. It can scarcely be supposed tbe learned Court, which pronounced this decision, were ignorant or unmindful of the Acts of 1785, and its supplements, and could have designed to except these from the general denial of the right of any of the heirs to file a bill for sale or partition, in a mode which disregards the provisions of the descent laws, &c. Yet it is contended, that this is a proceeding under the Act of 1785, ch. 72, and because the bill uses the language of that Act, in alleging “that the lands are incapable of division, and it would be advantageous to all parties concerned, to have said land sold,” the provisions of the Act to direct descents are to be dispensed with. On the other hand, the allegation that the complainants and their co-parceners, claim said lands “as heirs at law of Elisha Bull, to whom the reversion in fee was devised,” brings the hill within the provisions of the Act to direct descents. If it properly belongs to the latter jurisdiction, it is obnoxious to tbe objections so emphatically expressed in the citations previously made. “The character of a bill is determined rather by the allegations and relief prayed, than the title it assumes.” 18 Md. Rep., 450. Bo where a hill is filed for relief, nominally in one character, and alleges facts, showing the complainants are entitled to relief in another, relief will he granted according to the allegations and the proof. ’ ’ Ibid.
The original hill in this case charges, that the complainants are seized in iee-simple, jointly with the persons therein named, of the reversion of a parcel of land lying in said county; ***** that the said lands are incapable of division, and it would he advantageous to all parties con*108cerned, to bave the said land sold;" that the said parcel of land is composed of several contiguous tracts called “Bond’s Lot,” and being all the lands now in possession of Walter Billingslea, the devisee aforesaid; that your orator and oratrix, and their joint owners, claim said lands as heirs at law of Elisha Bull, deceased, to whom the reversion in fee was devised as aforesaid; that the said Mary 0. Bull and Sarah Ann Bull are infants. It- prays the Court to decree said lands to be sold, for subpoenas, and for general relief. Where the allegations and relief prayed are both required by or adapted to either Act of Assembly, under certain circumstances, the proceedings must be modified by the rights of the parties. In an analogous case, this Court, speaking of the proceedings for partition, said: “However the practice may have originated, the .jurisdiction of the Court of Chancery and County Courts as Courts of Equity, in cases of partition, where the land is situate in one County only, is too well established to be disturbed. Under the Act.of 1786, ch. 45, instances occurred in Chancery, and many more in both Courts since the Act of 1810, ch. 191. The proceedings may be by ex-parte petition of by bill and answer, but in both they must conform to the requirements of the descent laws, and decrees have been reversed for error in this respect. ” Phelps vs. Stewart, 17 Md. Rep., 239, 240. Many cases also show, that where the proceedings are by bill and answer, according to the usual course of the Court, sales have been made by trustees instead of Commissioners, and without objection in the Court of Appeals, although the decrees might have been reversed if erroneous, on that ground.”
In Tomlinson vs. McKaig, 5 Gill, 258, this Court said: “That a right exists on the part of the infant defendants to the original bill, to question its regularity and validity either by a bill of review or an original bill to vacate the same for fraud, cannot be doubted, and we think the Court below should have stayed the execution of the decree until an opportunity might be had of testing the validity of the *109original decree by an original bill to be filed by tbe defendants for that purpose. ’ ’
“The regularity of the proceedings, after the filing of the bill in the original case, has not been attempted to be vindicated. Not one of the steps demanded by the Act of 1820, ch. 191, have been taken; no order or decree for a commission was passed, of consequence, no judgment • of commissioners was had, or confirmation of such judgment; no privilege of election was extended to the beirs-at-law, without which the final decree of the Court could not have been, the legal exercise of jurisdiction. That such matters would have been the subject of a bill of review in an English Court of Chancery, if a decree had there been passed under such a law, could not be questioned. In that tribunal the proceedings in the cause are recited in the decree, and such errors would, therefore, have appeared on the face of the decree, and would have constituted errors which the Court would have noticed on a bill of review.
“In Birch vs. Scott, 1 G. & J., this Court announce the rule to be: A bill of review will only lie for errors apparent on the face of the decree, or for some now matter discovered since the decree. In thus saying, this Court but announce the English rule. They were not called upon to apply it to our peculiar practice in framing decrees. We can alone reap the beneficial fruits of the English rule by causing the bill of review to reach such proceedings in the cause as would, according to the English practice, appear on the face of the decree. In conformity with these views, the proceedings were remanded, that time might' be given to the adult defendants to file an original bill to set aside the decree for fraud, and to the infant defendants to file a bill of review for errors apparent on the face of the decree.
The defence set up in the case of Tomlinson vs. McKaig, was, that there were no allegations in the bill to bring it within the terms of the Act of 1185, ch. 12; and if such had been made, they were untrue in fact, and that the sale was procured by fraud.
*110In the course of tbe Court’s opinion, they declare the bill was not framed under the Act of 1785, but contained other allegations sufficient to give the Court below jurisdiction under the Act of 1820, ch. 191.
They declare: “ That a formal application to the Court may be made by bill to the Court, as a Court of Equity, has been heretofore decided by this Court.” But they no where decide in that case, in my judgment, that proceedings may be instituted, under the Act of 1785, by persons .claiming as.heirs-at-law to an intestate, for the sale of the lands cast on them by descent, instead of proceeding by bill or petition, under the Act to direct descents.
In the case.before us, the petition for the bill of review sets forth, among other reasons, that one of the petitioners was a minor, who had come of age since the decree, and within nine months from the date of the petition; and because the estate belonged to the petitioners as heirs-at-law of Elisha Bull, who died intestate thereof, the petitioners were entitled to the benefit of the Act to direct descents, of which, by said decree, they are deprived. The bill of review repeats the same allegations, with the addition, that no valuation of said land was made by commissioners for that purpose appointed, nor was any opportunity given the complainants to take said lands, and pay to the other heirs their proportionate shares. These allegations are hot controverted, the most material are established by the record.
If does not appear from the report of the case of Mew-shaw vs. Mewshaw, that the parties claimed as heirs-at-law of a deceased person, however it may be inferred from the objections urged in support of the demurrer.
The late Chancellor, in his opinion, says: But this does not appear to me to be a bill for partition. It is a proceeding founded upon and authorized by the 7th section of the Act of 1831, ch. 311, which extends the provisions of the 12th section of the Act of 1785, ch. 72, to parties of full age, who have an interest or estate jointly or in common, *111or otherwise concurrently, or in or out of any lands, tenements or hereditaments.” 2 Md. Ch. Dec., 13.
The proper subject of these acts was certainly estates acquired by purchase, and not by descent, and however indiscriminate practice may have confounded them, we could not, in the absence of express adjudications to the contrary from the highest authority, hold that at the mere pleasure of any complainant, he might so frame his bill in chancery, by adopting a set form of words, as to deprive heirs-at-law of their vested rights under the Acts to direct descents.
Conceiving that the original bill presented a case which brought it within the provisions of the Act to direct descents, which provisions were entirely disregarded in the subsequent stages of the cause, as was apparent from the face of the proceedings, I am of opinion the decree of the Circuit Court, rescinding the original decree for sale, should be affirmed.