• In 1866, William Duncan and Josej>hine Duncan, by their guardian, 0. Gr. Mitchell, filed in the chancery court of Pon-totoc county, their bill of complaint against Charles Williams and others, setting forth that complainants are minors and sole heirs of James M. Duncan, deceased; that, as such heirs, they inherited several tracts of land particularly mentioned in the bill, which lands.were sold by their guardian, Andrew J. Duncan, since deceased, to one B. A. Tardy, in November, 1860, himself also, since deceased, for $3,486, secured by three several bills single executed by B. A. Tardy, J. 0. Allen, ■and A. J. Jones, payable in twelve, twenty-four and thirty-six months, from November 3d, 1860, for $1,162, each, with interest at eight per cent.; that these lands were sold pursuant to a decree of the probate court of Pontotoc county, entered and made at the September term, 1860; that the report of sale was made to the December term, 1860, and confirmed at the March term, 1861; that B. A. Tardy, upon his purchase, went immediately into possession of these lands and received the rents and profits thereof; that he subsequently sold and conveyed to A. J. Jones, who afterwards sold and conveyed to *381defendant, Charles Williams, who is the present occupant; that both Tardy and Jones have since deceased; that the whole of the purchase money remains unpaid; that the title conveyed by the guardian is believed to be perfect, except for purchase money; that the sale was made in good faith, and that it is for the interest of complainants that the sale should be completed by the payment of the purchase money.

The heirs and representatives of Tardy and Jones are named, as defendants and complainants, offer to do and perform any act on their part, with the consent of the court, to perfect the contract and title.

The bill prays for a sale of the lands 'to pay the purchase money, or that the contract be rescinded, and an account taken of the rents, issues and profits; that the heirs and representatives of Tardy and Jones, deceased, be made parties, with a prayer for general relief, etc.

The parties appear to have been brought regularly before the court. Parks,- administrator of Tardy, deceased, at the October term, 1864, of the court below, filed a demurrer to the bill; at the April term, 1867, this demurrer came onto be heard and was continued by consent; and at the October term, 1837, a judgment pro confesso w'as taken as to all the defendants, including defendant Parks, in disregard of his demurrer; at the April term, 1868, the defendant, Williams, entered a motion to set aside this judgment as to himself and for leave to appear and defend, which motion was at the same term overruled.

Upon the hearning of this motion, defendant Williams read an affidavit by himself, stating that “ he has a meritorious and-legal defense ” in this case “ as he is informed and believes,” and that affiant was informed, as he understood complainant, by him, that he, defendant, would not be held liable for anything more than the land ; that defendant would lose that, but would have recourse over and against A.- J. Jones, and that he would lose nothing but the land. Affiant also consulted JohnW. Thompson as an attorney of this court as to whether he could hold the land or *382not, and was informed that in the opinion of his attorney he could not keep the land as against the heirs of James W. Duncan, deceased;” that “therefore, relying on what lie understood complainant to state, and the legal opinion of J. W. Thompson, as above stated, affiant determined to let the land go ; ” that “ affiant bought the land of A. J. Jones, in good faith, and paid $3,200 in cash for it, and took a deed, and has owned it ever since, and made considerable improvements of a substantial nature.”

At the October term, 1868, William P. Spencer was appointed by the court, a commissioner to take and state an account of the rents, issues and profits of the land in controversy. The report of the commissioner was made to the court, and confirmed at the same term, October, 1868. The defendants did not appear upon the hearing before the commissioner, and the proof of service of notice of time and place of hearing, is wholly unsatisfactory and insufficient. The commissioner reported upwards of two thousand dollars for rents, issues and profits due from defendant Williams.

The proceedings in the probate court upon the sale of these lands are given entire, from which it is evident the contract cannot be executed specifically in its entirety, because of the uncertainty of the description of the two hundred acres, which cannot be identified, nor in any way ascertained from the records, being described only as “ 200 acres of section 1, township 8, range 2, east.”

The final decree in this case was made at the October term, 1869, by which the contract of sale is rescinded, the defendant Williams is decreed to be indebted to the complainants for use and occupation in the sum of two thousand and twelve dollars, and the defendants jointly, are decreed to pay the costs. No notice appears of filing the report of the commissioners, nor of application for its confirmation, nor were exceptions filed thereto by defendants or either of them' From this decree the defeu-1 mt, Williams, appeals to this court, and assigns the following as causes of error:

1st. The refusal to set aside the judgment fro confesso.

*3832d. In rendering a personal decree against him for mesne profits.

3d. The reception and allowance of the report of the commissioners.

The jurisdiction in this case is complete for all purposes. If there were no other reason, the infancy of the complainants brings the case within the jurisdiction of a court of equity, for all the purposes of this bill, including the claim for use and occupation. Carmichael v. Hunter, 4 How., 315; Story’s Eq. Jur.

It is altogether probable, from the records of the probate court presented with this bill, that the only proper disposition of this case is to rescind the sale; yet, upon the affidavit of defendant, Williams, of a meritorious defense, which he wa induced to forego upon the representations of complainant, on wffiich he relied, that no claim would be made, further than a recovery of the lands, we are disposed to afford this defendant an opportunity to be heard.

Several errors appear in the record and proceedings; but defendant failed to take the steps necessary to avail himself of them here. The proof of service of subpoena to answer the bill, and notice of taking the account of the rents, -were wholly insufficient, but they are not now available, and are but technicalities at best. The decree pro eonfesso against Parks, while his demurrer was pending undetermined, appears to have been improper, but he is not a party to this appeal. The damages awarded in the way of rents for use and occupation, seem to us to be excessive. It will do no harm to review this branch of the case, and it may be that the defendant has meritorious claims for valuable improvements; but whether the case is a proper one for their allowance, we express no opinion.

It seems to us, also, that others than the defendant, Williams, ought to pay the costs, which, by the great number of alias and pluries subpoenas to several counties, to bring in numerous heirs and representatives of deceased parties, must be very large. This point may well be reviewed, also, by *384the court below. The defendant appears to be an innocent, though not technically, perhaps, a Iona fide purchaser of these lands, and entitled to favorable consideration, dependent upon the developments of a hearing.

Judging by the record before us, the defendant has acted, at least, honestly, having confidingly paid the purchase price of these lands, and has, therefore, a claim to such favor as the facts and the rules of equity may warrant, as well against his co-defendants as against complainants.

The power of the court to set aside judgments pro confesso, is unquestionable, Daniel’s Oh. Pr., 509, 1015, 1045, and is frequently exercised. So, also, the refusal to open such a decree is the subject of review by the appellate court. Belief is a matter of sound discretion, to be afforded in the furtherance of justice, wheD justified by the special circumstances of the particular case. Conceiving this to be such a case, the final decree, and. judgment pro confesso, against defendant, Williams, are reversed and set aside, with leave to him to appear and plead within forty days.