delivered the following opinion, also concurring in part in the opinion of the majority of the Court,, and in part dissenting therefrom:
My understanding of the cases of Tipton vs. Chaney, and Tomlinson vs. McKaig, is this: that the rights acquired by heirs-at-law, under the Act to direct descents, are intrinsically valuable, vested by the death of the intestate, and the subjects of grant; and that it is the duty of Courts of Equity, upon bills for sale or partition filed by some of the heirs against others, whenever, by the allegations of the hill or' otherwise, it is made to appear to them that the parties take by descent, and cannot agree upon a division of tbe estate, or that some of them are minors, to protect these rights and to conform the proceedings under the bill with the provisions of that Act. Where the bill contains these allegations, whatever other averments may accompany them, then to decree without complying with the provisions of that Act is error, and a hill of review will lie to correct it as an error apparent on the face of the proceedings. If the hill should *112omit the allegations necessary to require the Court to adopt the proceedings of the descent law, but would contain others which would give to the Court jurisdiction, (such as the allegation that it would be to the interest and advantage of the infants or other persons concerned, that the lands should be sold, and that the parties hold jointly or in common,) and that the Court would proceed, upon the proper proof or admissions, to decree a sale, and it should, in fact, be that the parties hold by descent, such decree “would be erroneous, not for any matter appearing in the decree or proceedings, but for matter which existed at the time, but was not then brought to the knowledge of the Court; and this decree could be examined upon a bill of review by any of the parties in interest, and under disability at the time, if filed within the proper period. In both cases the Court would have jurisdiction, for that is determined by the allegations of the bill, but the error is that which arises in the exercise of jurisdiction.
The case of Mewshaw vs. Mewshaw, 2 Md. Ch. Dec., 12, does not appear, from the report of it, except by inference, to have arisen in a case of intestacy. If, however, it was a case of that kind, and so presented in the bill and proceedings, I conceive, with great deference to the opinion of so great a jurist as Chancellor Johnson confessedly was, that he misapprehended the views of the appellate Court in Tomlinson vs. McKaig, and being the judgment of an inferior tribunal, it could not have the effect of overruling the decision of this Court more than once carefully and deliberately formed.
The proceeding in the case now under consideration arose under, and is to be governed by the law of this State, and the decisions thereunder, prior to the adoption of the Code. How far the provisions of the Code, upon the subject of partition, and the equitable powers of the Courts to decree in such cases, differ from those that existed before, is not now the subject of inquiry.
I concur with the other members of the Court, in the opinion and decree, that the sale made by the trustee should bo *113Bet aside. Jt appears, from tbo proof, that all interested were led to believe that tire sale was not to bo perfected, and that it was tbe declared intention of tbe purchaser himself, who had paid nothing on the purchase, who possessed no ostensible means of payment, and who left the State for the West, not to comply with the terms of sale unless the trustee would enter into a covenant which it was not his province or his duty to make. To allow him, under such circumstances, and after the lapse of several years, and the falling in of the life-estate, which imparted a sudden value to the entire property, then to come in and pay, and claim the advantage of his purchase, would- he to aid him in a speculation disadvantageous to those really interested, and in which the Court ought not to participate.
I agree with the Chief Justice in the other branch of this case. I entertain the opinion that it is a case for a hill of review", upon the authorities I have already referred to. It is not necessary to advert to the evidence that was brought into the original cause by the mistake of the witness, and upon which the original decree was based. That would have constituted matter for consideration if the case had been one that would have been regularly conducted under the Act of 1*785, ch. 72.
Baictol, J.,delivered the opinion of the majority of the Court:
In the opinion of a majority of this Court, there was error in the decree of the Circuit Court, passed on the 6th day of August 1862, annulling and setting aside the original decree of the 3rd day of February 1849. . Tbe learned Judge of the Circuit Court placed his decision upon the cases of Chaney vs. Tipton, 11 G. & J., 255; s. c., 3 Gill, 327; and Tomlinson vs. McKaig, 5 Gill, 256. In those cases the proceedings were under the Act of 1820, ch. 191, (the Act to direct descents,) and in both it was held that the proceedings must conform to the provisions of the *114descent laws. In Tomlinson vs. McKaig, tbe Court of Appeals, Chief Justice ARCHER delivering the opinion, determined, that for want of the necessary averments in. the bill giving the Court jurisdiction under the Act of 1185, ch. 12, the jurisdiction of the Court under that Act could not be sustained. It was further decided that the jurisdiction made by the bill being maintainable only under the Act of 1820, ch. 191, the requirements of that statute must be followed ; to that extent affirming the decision in Chaney vs. Tipton, which we do not mean to impugn. In the same case, however, the Court say: “The jurisdiction under the Act of 1.185, ch. 12,.could not be sustained, because there is no allegation in the bill that it would be for the interest and advantage of the infants, and of the other persons concerned, that the lands described in the bill should be sold. Such an averment is necessary to give the Court jurisdiction under this Act.”
In this case the original bill contained this averment, and we understand the language of the Court in Tomlinson vs. McKaig,. just cited, clearly to decide that in such case the-jurisdiction of the Court is exercised under, and the proceedings are regulated by, the provisions of the Act of 1185' and its supplements. The decision was so understood by the late learned Chancellor, and his decision in the case of Mewshaw vs. Mewshaw, 2 Md. Ch. Dec., 12, was made in conformity therewith.
The case of Mewshaw vs. Mewshaw, was decided in 1849, and we are not aware that ⅛ correctness has ever been impugned or questioned. The decisions of that learned jurist have always been held in the highest respect in this State. In his opinion, then delivered, he stated that “frequent decrees of such a character have been passed,” and we may add that many more have been passed since that decision was pronounced.
The question may, we think, be considered as concluded by what was said by the Chief Justice in Tomlinson vs. McKaig, and by the decision of the Chancellor in Mewshaw vs. *115Mewshaw; as well as by tbe long established practice of Courts of Chancery in this State. But if the question were a new one, we thinh the construction of the Act of 1785, ch. 72, is free from difficulty. By the 12th section, a Court of Chancery is authorized to decree a safe of lands where an infant “has a joint interest therein, or interest in common with any other person or persons,” where it shall appear to the Court that such sale will be for the interest and advantage of the parties. The words “joint interest” are not to be construed technically as meaning only an estate in joint tenancy, but includes estates in coparcenary; they are interests held jointly with other persons, within the meaning of the statute. This construction appears more obvious when we examine the Acts of 1831, ch, 311, and 1839, ch. 23, which are in pari materia with-the Act of 1785. By the 7⅛ section of the Act of 1831, the provisions of the 12th section of 1785, ch. 72, are extended to cases where all the parties are adults, -and authorizes the sale of any interest or estate “ held jointly or in common, or otherwise concurrently.” The Act of 1839 authorizes the sale of any lands or real estate held jointly by any persons. These Acts are to be construed together, and confer upon Courts of Chancery the power to decree the sale of any interest in lands when it shall appear for the interest of all parties holding the same jointly, whether they hold by descent or by purchase. Bolgiano vs. Cook, 19 Md. Rep., 376.
The proceedings in this case being instituted under and in conformity with the provisions of the Act of 1785, the Court had the jurisdiction and authority to pass the original decree, upon proof of the allegations of the bill, without pursuing the course prescribed by the Act of 1820, ch. 191. This Act and the Act of 1785, and its supplements, are not in pari materia; but are altogether distinct from each other, and the jurisdiction and proceedings under them, respectively, are wholly distinct and dissimilar.
A majority of this Court are also of opinion that the -bill of review ought not to be sustained upon any of the grounds *116relied on in tbe argument of tbe appellees in tbis Court. Tbe general principles governing tbe subject of bills of review, are stated by tbe Court in Tomlinson vs. McKaig; without repeating them here,, in our opinion tbe bill of review in tbis case and tbe proof adduced in its support, do not show any sufficient grounds for rescinding tbe decree, either by reason of error or irregularity on tbe face of tbe proceedings, or on account of any newly discovered facts. The decree of the Circuit Court, passed on tbe 6th day of August 1862, rescinding tbe decree of tbe 3rd of February 1849, must therefore be reversed.
(Decided May 12th, 1865.)With reference to tbe order of tbe Circuit Court, setting aside the sale made to tbe appellant, we concur in tbe opinion expressed by tbe Chief Justice, and will sign a decree affirming that order, and remanding tbe cause. The costs of tbis appeal tó be paid by tbe apjiellant.
Affirmed in 'part, and reversed in part, and cause remanded.