The judge before whom this cause was tried found, as matter of fact, that the decree of September 21, 1838, was not in the hands of the master when he made the sale upon the 18th July, 1842, and that such sale was made under the decree of April 28, 1842, and not under the first mentioned decree. This finding is both strictly in accordance with the evidence and conclusive upon us as to the question of fact. It is, however, contended that the sale did virtually, or by construction of law, take place under the decree of September 21, 1838, inasmuch as the decree of April 28, 1842, recites that decree, and directs the master to proceed and sell, both under it, and also by virtue of the decree of April 28, 1842. To this it is a complete answer, that so far as the sale could be regarded as having been made under the authority of the first decree, by virtue of the direction contained in the last decree, *Page 147 the subsequent reversal of that decree is effectual to destroy the authority.
This brings us to the only question in the case: whether the plaintiff can have any advantage from the doctrine of estoppelin pais, so as to prevent the defendant from setting up the plaintiff's want of title. I am unable to see how any such right is to be extended to the plaintiff in this case. Collier's letter to the master in chancery, requiring him to proceed to sell under the decree in Wambaugh's suit, did not and could not control the action of the master in executing the decree. It may have influenced his mind to refuse a postponement of the sale on Wambaugh's application, but the granting or refusing to grant the application lay in his discretion. Nor is there, I think, any room to say that Collier's letter held out the idea that the sale, when made, was to be made under both decrees, except only so far as a sale under the second decree in law was equivalent to a sale under both. The fair construction of the letter is, "Go on and sell under the second decree, for if you should refuse I can compel a sale under the first decree." It rather negates than affirms that the sale is to be made under both decrees.
In regard to Collier's bidding at the sale, it is quite obvious that to bid was necessary for his own protection. He could not assume that the decree of the vice chancellor would be reversed, and could not therefore safely abstain from bidding.
Nor is there any thing in the fact that the money received by Collier upon the Wambaugh sale has not been refunded to Wambaugh. Under the sale on the 18th of September, 1845, Gates, through the agency of Collier, became the purchaser. At that time the chancellor having reversed the decree under which Wambaugh purchased, he was prosecuting his appeal to the court of appeals. Had that appeal been successful, Wambaugh's purchase would have been effectual, and there would have been no occasion to refund; at this time, therefore, Gates had done *Page 148 every thing he could possibly do, by placing in the hands of Collier, who received the money from Wambaugh's purchase, the amount which he had so received. Gates' title must depend upon the facts, as they existed when he made the purchase, and looking to that time, there was no obligation on any one to repay Wambaugh. The parties stood upon their respective rights, Wambaugh relying upon his decree, and Gates upon the first decree; and we do not see any ground upon which their legal rights are to be interfered with. The judgment must be reversed.
Judgment reversed, and new trial ordered.