The statute regulating the confirmation of sales in partition proceedings (Rev., sec. 2513) was fully considered, at the last term, in Upchurch v. Upchurch, and Justice Uolce, speaking for the Court, then said, upon facts presented by this record: “The law was enacted to enable the court to proceed to judgment on the record as it stood, after twenty days, and to shut off all right of exceptions for irregularities, lack of notice or even inequalities as between the parties to the record, and it was never intended to deprive the court of the .power to regulate and control a sale by reason of advanced bids made and entered before the purchaser appeared and moved that his bid be accepted and sale confirmed. This right the statute confers upon him, and, under its provisions, he can appear at the end of the twenty days, or after, and if an increased bid has not been made at the time of motion entered, he is entitled to have the same allowed and on the record as it then appears.”
The reasons for adopting this construction of the'statute are stated in the opinion, and it may be added that parties will be encouraged to buy, and the proceeds of sale increased, if it is known that the highest bidder may have his rights definitely settled within the time fixed by the statute.
It may also be noted that in all special proceedings, except for partition, in which a report is to be filed, the statute (Rev., sec. 723) provides that if no exception is filed to the report within twenty days the court may confirm the same, on motion of any party, while in the statute before us, referring to partition, the word used is shall, thus indicating a purpose to distinguish between the two, and in one case resting a discretion in the court, and in the other making it obligatory to act..
All the parties to this record are adults, and their attorney, who conducted the sale as commissioner, gave notice that the sale would be confirmed if no advance bid was made within twenty days, and the purchaser moved promptly for confirmation of the report.
If the petitioners had entered into a written contract to sell for $1,200, the court would have compelled performance, in the absence of fraud or mistake, which is not alleged, although some one had offered the increased price of $1,500, and they are in no better condition when they have asked the court to sell for them and the purchaser has complied with the statute under which they sell.
*345Tbe judgment of tbe Superior Court is reversed, witb directions to enter judgment in accordance witb tbis opinion, tbe purchaser’s rights being determined by tbe record as it stood when bis motion to confirm was made.
Reversed.