The opinion of the court was delivered bj

The first question underlying this appeal is whether under proceedings for partition had in the Probate Court between the heirs at law of an intestate, whereby certain lands of said intestate being assigned to one of such heirs at law upon the condition that a certain sum of money be paid to another of such heirs at law for the purposes of equalization of their respective shares, the statutory lien under the act of 1791 can be invoked to render the tract of land so assigned pledged for the payment of the sum of money necessary to such equalization.

1 We are compelled to hold, in the form in which the question is presented, that no such statutory lien exists. In the seventh section of the act of 1791 it is provided that in the event the commissioners appointed to make partition cannot partition the same amongst the parties legally entitled thereto in kind, in that event “they shall make a special return of the whole property and the value thereof, truly appraised, and certify their opinion to the court whether it will be most for the benefit of all parties to deliver over to one or more of the •parties interested therein the property which cannot be fairly divided, upon the payment of a sum of money to be assessed by the said commissioners, or to sell the same at public auction; •and the court shall proceed to consider and determine the same; and if it shall appear to the court that it will be for the benefit of all the parties interested in the said estate, that the same shall be vested in one or more persons entitled to a portion of the same on the payment of a sum of money, they shall determine accordingly; and the said person or persons, on the payment of the consideration money, shall be vested with the estate so adjudged to them as fully and absolutely as the ancestor was *285vested. But if it shall appear to the court that it would be more for the interest of the parties that the same shall be sold, then they shall direct a sale to be made, on such a credit and on such terms as to them shall seem right; and the property so sold shall stand pledged for the payment of the purchase money.” In the case at bar the lands of Neill Alford, who died intestate in 1866, were partitioned in the Probate Court for Marion County in 1870 amongst his heirs at law by assigning the lands to cer-. tain of-such heirs, assessing a sum of money, to be paid to the . plaintiff, who was one of them, and who received no lands. No lands wrere sold to procure partition. The act of 1791 provides such lien only in case of sales.

2 The second question. However, the respondents here, when . they interposed their oral demurrer, that the complaint did not. state facts sufficient to constitute a cause of action, admitted the facts as set out in the complaint to be true. The complaint does not stop at claiming a specific lien or pledge - of such lands to pay plaintiff’s claim ; it alleges, further, that the • 177 acres of land, the subject of this controversy, only vested in John D. Alford upon the express condition that he should pay to her the sum of $582.87, with interest thereon from the 26th November, 1870, and we think, in this position, the plaintiff, appellant, is right. Harris v. Gooch, 5 Rich., 1. Let the facts be understood. All the heirs at law of Neill Alford were before the court, and all adults. Commissioner’s in partition were appointed and, under oath, made their return. By the return an equality in kind by partition could not be had, and therein such commissioners recommended that the parcel of land now in the possession of defendants should be assigned to John D. Alford upon the condition that he pay the plaintiff $532.87, both being heirs at law'. This return. was, by decretal order, confirmed.

By law John D. Alford could not have a title to said land without paying to the plaintiff that sum, under the allegation of this Complaint, for he has no other title than the partition proceedings confer. When he conveyed such lands to James Berry in January, 1877, the said Berry knew of plaintiff’s rights, and never denied the same. He mortgaged the land to Salinas & *286Son in July, 1877, and on the 4 February, 1879, they purchased the same under foreclosure of such mortgage. It does not lie in the mouth of Salinas & Son or their mortgagee or John D. Alford to raise any question as to the powers of the Probate1 Court, either jurisdictionally or as to the binding efficacy of its decree ; the first is a privy of the last two. who were themselves1 parties to such suit, and when Salinas & Son bought this land at the foreclosure sale, they were notified of plaintiff’s rights in such land. • Judge Witherspoon’s decree sustaining the demurrer was erroneous, and must be reversed.

It is the judgment of this court, that the judgment of the Circuit Court be reversed, and that the action be remanded to the Circuit Court for such further proceedings therein as may be necessary under the principles announced in the opinion of this1 court.

The defendant filed a petition for the rehearing of this case, the grounds whereof sufficiently appear in the order endorsed upon said petition, which was filed June 2, 1892,

3 After a careful examination of the petition, wre are unable to see that any material fact or important principle has either been overlooked or disregarded. It does not, by any means, follow that a question which is not specially stated .and distinctly argued in the opinion has been overlooked. In this case the question, whether the provisions of the act of 1791 could be applied to proceedings for partition in the Court of Probate, was necessarily involved in-the conclusion reached by the court, and although not specifically discussed, must be regarded as decided.

4 The other ground taken in the petition — that this court failed to consider the question whether the plaintiff could enforce the remedy which she claimed by a separate action in the • Court of Common Pleas, or whether she was not bound to pursue the same in the Court of Probate — could not arise upon a demurrer upon the ground that the complaint does-not state facts sufficient to constitute a cause of action, but should have been raised by demurrer for want of jurisdiction in the Court of Common Pleas.

*2875 *286The opinion rendered by this court was not intended to pre-*287elude, and does not, in our judgment, prevent, the defendants from applying to the Circuit Court for leave to answer over; and, in order to remove any doubt upon this subject, the respondents are hereby permitted to apply to the' Circuit Court for leave to answer over.

6 The petition is therefore dismissed.