¶1dissenting.
¶2I cannot concur in the conclusion reached by a majority of the court in this case. Erom my understanding of the record, the learned judge who entered the decree under review, was plainly right in the view stated in his written opinion, made a part of the record, that the fact that Deyerle, who was a surety for Gross, paid the amounts that he paid after a resale of the land, instead of before, did not exclude him from the benefit of the principle announced by this court in Tompkins, Receiver, v. Pulliam, 97 Va. 602, 39 S. E. 221.
¶3The bond executed by Taylor and Junkin, commissioners, pursuant to the decree of the May term, 1884, authorizing either of them to act upon the giving of the bond, omitting the formal part ,and the sign, atures and seals thereto, is as follows:
¶4*227“The condition of the above obligation is, whereas the above bound James 0. Taylor and Geo. G. Junkin, hath been appointed commissioners of Montgomery Circuit Court to sell land in suit of E. P. Northcross v. W. H. Davis’ Heirs:
¶5“Vow, if the said J. C. Taylor and Geo. G. Junkin shall faithfully discharge the duties of their office or trust as commissioners as aforesaid, then the above obligation is to be void, else to remain in full force and virtue.”
¶6Upon the execution of the bond and the attachment to their advertisement of the sale of the land the required certificate of the clerk that the bond had been given, Taylor and Junkin, or either of them, were authorized to receive all the purchase money for the land sold until by decree in the cause some other person was appointed to collect the same, and notice of such appointment served upon the purchaser as required by the statute, the statute expressly providing that if any payment be made to a special commissioner making the sale before the purchaser has notice of the appointment of another person to collect it, such special commissioner and his sureties shall be responsible for the money so paid, and the purchaser shall not be responsible therefor. Acts of 1883-4, p. 213.
¶7At the sale by Taylor and Junkin, commissioners, pursuant to the decree of the May term, 1884, one of the parcels of land sold was purchased by J. W. Barnett, who made his cash payment and executed his bond for the three deferred payments. The decree of the May term, 1887, recognized P. B. Pulliam as substituted purchaser of part of the land bought by Barnett, and directed Junkin, as commissioner, to unite with Barnett and wife in a deed to Pulliam. Pursuant to this decree, Junkin, commissioner, and Barnett and wife conveyed the land to Pulliam, reserving to Junkin, as Receiver, a vendor’s lien for unpaid purchase money. The entire purchase price of the land was paid by Barnett and Pulliam, the cash payment to Taylor and Junkin, and the deferred payments to Junkin.
¶8*228In Tompkins, Receiver, v. Pulliam, supra,in which it was sought to have Pulliam repay so much of the purchase money for the land he bought through Barnett as was necessary to make up for the default of Junkin in not accounting for the money received of Pulliam and others, the court reviewing the Act of February 25, 1884 (Acts of 1883-’4, p. 213), entitled “An act to provide for the protection of purchasers at, and other persons in, judicial sales,” held, that as the sale by Taylor and Junkin, commissioners, under the decree of the May term, 1884, was after the passage of the Act of February 2,5, 1884, supra, and the required copy of the certificate from the clerk appended to and published with the advertisement of their sale of the lands, and the purchase price of the land bought by Barnett, subsequently transferred to Pulliam, having heen paid in full by Barnett and Pulliam, to one of the special commissioners who had made the sale, and the payments made without notice of another person having been appointed to collect them, Pulliam was relieved from all liability; “otherwise,” says the opinion, “the law which was intended for his protection would be converted into a trap for his destruction.” In other words, the opinion in that case, after reviewing the statute, holds that Commissioners Taylor and Junkin, having complied with the statute as to the bond required of them and appended to their advertisement of the sale of the land by them, a copy of the certificate of the cleric that the bond had been given, they were authorized to receive the whole purchase money until the purchaser was notified, as the statute required, that some other person had been appointed by the court to collect it, and that a payment to these commissioners, or either of them, by a purchaser, without such notice, was a valid payment, and absolved him from further liability therefor.
¶9It will be observed, therefore, that the only features in the case at bar differentiating it, if at all, from that just quoted from are (1) the decree of the resale of the Gross land as a *229means of collecting the purchase money due by Gross and his sureties therefor, remaining unpaid, one of the sureties being Deyerle, appellee here; and (2) the provision in the decree of the November term, 1884, removing Deyerle as receiver in the cause, charged only with the duty of collecting certain rents, and requiring him to turn over to Junkin, appointed receiver to collect both rent and purchase money bonds, the rent and money bonds then in the hands of Deyerle.
¶10The statute, now section 3398 of the Code, is: “Uo special commissioner appointed by decree or order of court, or of a judge in vacation, to sell or rent any property, shall advertise the property for sale or renting, or sell or rent the same until he has given bond,” etc.; and the decree of the May term, 1887, does not appoint a special commissioner to sell the Gross land, but merely directs Junkin, as commissioner appointed by the decree of the May term, 1884, and authorized to collect all of the purchase money for lands sold under that decree until some one else was appointed to collect it, and notice of the appointment of such person served on the purchasers, to resell the Gross land for the unpaid purchase money due for it and “at the risk and charges of Gross and his sureties,” who were liable for the unpaid purchase money bonds given for the deferred payments at the original sale. The payment of the purchase money at this resale, evidenced as to the deferred payments by three bonds, not payable to Junkin as receiver, but as “Commissioner of the Circuit Court of Montgomery county, in the suit of Northcross v. Davis’ Heirs,” was but a payment of the purchase money bonds due on the original sale of this land, which Junkin, commissioner, was undoubtedly authorized to collect, it not being pretended that Deyerle, who was bound as surety therefor, had been served with the required notice of the appointment of Junkin as receiver in the cause. As said by the learned judge below, if Deyerle had paid the bonds to Junkin, upon which he was bound as surety for Gross, before the resale, such payment would have been good. Tompkins, Receiver, v. Pulliam, supra.
¶11*230It has not been the practice in this State, so far as I am advised, to require a commissioner already appointed and qualified to receive the whole of the purchase money for land sold in a cause, to give a bond before proceeding to execute a decree merely directing him to resell the land for the unpaid purchase money due therefor, and only as a means of collecting it. The learned judge who entered the decree of the May term, 1887, of long experience on the bench, considered it unnecessary to require a new bond of Commissioner Junkin, who was thereby directed to resell the Gross land.
¶12How it can be said in the opinion of the court that payment» made to Junkin, commissioner, by Deyerle, before notice to him as required by the statute, of Junkin’s appointment as receiver in the cause, were not valid payments absolving Deyerle from further liability therefor, when payments made to Junkin by Pulliam under the same circumstances were held in Tompkins, Receiver, v. Pulliam, supra,to be valid payments, absolving Pulliam from further liability therefor, I am wholly unable to comprehend. PTor can I agree that because the decree of the Hovember term, 1884, appointing Junkin receiver to “collect all rent and sale bonds due under the proceedings in this cause,” removed Deyerle, as receiver, to collect the rents only from the lands under the control of the court before their sale and required him to turn over to Junkin the rent and rent bonds then in his hands. This ease is differentiated from that of Tompkins, Receiver, v. Pulliam, supra,when in the last-named case the deed to Pulliam from Junkin and others, as we have seen, reserved to Junkin, as Receiver, a vendor’s lien on the land conveyed for unpaid purchase money which was afterwards paid to Junkin as commissioner, and held by this court to be valid payments, notwithstanding Junkin never gave the bond required of him as receiver, the decision absolving Pulliam from liability to repay the same resting on the ground that Pulliam was protected by the provisions of the statute of February 25, 1884, supra.
¶13*231The object of tbe statute was to protect purchasers at judicial sales from the hardship to which they had been so often subjected of having to pay their purchase money twice. It was the purpose of the Legislature, clearly expressed in the statute, to avoid such injustice, by laying down the only terms upon which a purchaser should be held to pay again his purchase money. If the express provisions of the statute may be avoided, because of a decree of resale of land, as a means of collecting unpaid purchase money due therefor, or because inferences may be drawn from an old decree in the case that Deyerle, who was a surety for the unpaid purchase money for the land resold, must have known that Junkin had been appointed a receiver to collect the unpaid purchase money for the lands sold under the decree of the May term, 1881, and required to give a bond as such receiver; or because Commissioner Junkin gave no bond as the commissioner to resell the Gross land, none being required of him by the decree of resale; then the door is thrown open and not only the letter, hut the entire spirit of the statute may be rendered nugatory, and it would be better for the purchaser, if the statute had not been enacted, for it is thus made to operate as a snare, rendering it necessary for purchasers to examine records and decrees (as of old), and determine for themselves, at their peril, whether or not they can safely pay.
¶14Reversed.