Tuck, J.,
delivered the opinion of the court.
So much of the present record-as was before the court on the former appeal, is sufficiently stated in 5 Gill, 287, On that appeal, the decree of Allegany county court, as a court of equity, was reversed, and the cause remanded for further proceedings. After which, to wit, on the 17th May 1848, the appellant, (the complainant below,) filed his petition stating, that the defendants, Meshack and Isaiah Frost, had conveyed away parcels of the lands covered by the decree ; shewing the names of the grantees, and the dates of the conveyances : and praying that a commission might issue to make partition of the coal according to the decree of the Court of Appeals. A commission was issued, and after-wards, the commissioners made a report, suggesting that difficulties were presented by reason of these conveyances, the complainant claiming one-third of all the coal that the parties owned at the date of the agreement, in 1828; and the defend[393] ants insisting that the commissioners should look at the property as it stood on the day of the filing of the bill, and divide said coal as the parties were seized of it at that time;” and they asked the court’s instructions as to the mode of making the partition. In the further progress of the cause, an agreement was filed, by which it appeared that the town of Frostburg was laid out in the lifetime of the father of the defendants, as the lands devised by him to his sons : that these town lots were sold to different persons, at various times; some before the agreement of 29th October 1828; some between that date and August 1843, (when Young purchased for Neff;) others after that time and before this bill was filed, (17th February 1845;) and others since the commencement of the suit; that these lots contained in all, about fifty seven acres; and were sold by the defendants, who received the purchase money. It also shews that the purchasers of the lots took possession of them, that they were bona fide purchasers for value, without notice of the complainant’s claim, or the title under which he claims, and that they were, at the time of filing the bill, and continued in adverse possession of the same, claiming title in fee. The agreement, however, stipulates “that notwithstanding its admissions, the question shall still be open.” “Whether the effect of the said sales and conveyances by Meshack and Isaiah, to bona fide purchasers without notice at the time of said sales and conveyances, of the claim of the complainant, or of the agreement under which it is made, was to give a full and perfect title to the purchasers of said lots, or merely to transfer the right and interest of the said Meshack and Isaiah.” The answer of Meshack and Isaiah Frost to this petition, denies the right of the complainant to the instructions prayed for, and insists, that by these conveyances, they proposed to sell, and did sell only their own right, title and interest in these lots, and not that of any other person, They also aver that Neff had knowledge of these sales, and permitted the purchase money to be paid without giving any notice of his claim; and that the purchasers never heard of any such claim until this bill [394] was filed. They contend also that the complainant’s claim, under the agreement of 1828, is a right to the thing, and not a personal demand against them; that if this coal has. been lost by his own neglect, he cannot have any indemnity from them; and that the commissioners should malee partition of the coal in the lands which they find still in the possession of the parties, and not of the coal held adversely by strangers, who are not parties. A commission was issued and proof taken, to which it is unnecessary particularly to refer. A partition was also made in conformity with the instructions of the coal in the lands held by the complainant, and defendants Meshack and Isaiah, at the date of the- filing of the the bill, to wit, 17th February 1845; and making no allowance for, nor taking notice of the coal under the lots sold'by said Meshack and Isaiah, prior to the filing of the bill. From the decree ratifying this partition, the present appeal is taken.
It is coni ended, on the part of the appellant, that the very questions which we are called upon now to consider, were conclusively decided by the decree of this court, in 5 Gill 314; and that the defendants therefore could not, when the cause was remanded, set up the defence which they relied upon, in, opposition to the pretensions of the complainant. The counsel for the appellees, however insist, that the decree which was heretofore reviewed, being interlocutoiy and not final, this court is not concluded by the decision on that appeal. If that was the character of the decree, and the appeal did not lie, we think the objection cannot now be made. 3 Howard, 413. But the case was within the provisions of the act of 1845, ch. 367, the court having “determined questions of right between the parties, and directed an account to be taken, on the principle of that determination,” and though not a final decree, the decision of the Court of Appeals must be taken as conclusive, on all “points which were made before the court of Appeals, or which were presented by the record,” 1832, ch., 302, ’6, and no error can be imputed to the court below, if its subsequent proceedings have been in conformity with the principles of that decree. 7 Gill, 244. 7 Gill, 333.
[395] We must look to the decree of the court, to ascertain the scope and extent of their decision, from which, it is manifest,that the alleged agreement between the Frosts and Neff, was established; that Young, as assignee of Neff, was entitled to have execution of the same, according to the construction asserted in his bill, and that he was entitled to partition of the coal, according to that claim. And the cause was remanded for partition, upon these principles, and the rules of equity. The counsel for the appellees, however contend, that the decree must be considered with reference to, and as conclusive, only in view of the case then before the court; and that, as the matter subsequently brought into the cause, materially changed its character, by presenting new equities between the parties, it is competent for this court now to mould its decree, according to the case disclosed by the whole record. Whatever weight this view may be otherwise entitled to, it cannot change the construction placed upon the agreement. Nor do we perceive how these alleged new equities can be allowed to avail the defendants, except in disregard of the decree of the Court of Appeals, both as to the right of the appellants, to a specific performance of the agreement, and as to the character and extent of his relief. This case was before the court below upon the bill, answers, and proofs. The defendants had contested the right of the complainant to the relief he sought. And the court had decided the cause upon the merits as there presented. The Court of Appeals, in renewing that decision, passed a decree by which they determined the questions of right in issue between the parties, and remanded the cause, that the appellant might have relief in the court below, according to the law of the case, as there established by this court. The facts relied on by the defendants, after the cause was remanded, had occurred before the first decree, and might have been made part of their defence to the original bill, and we think should have been presented then. Every person is bound to take care of his rights, and to vindicate them in due season, and in proper order. This is a sound and salutary principle, intended to prevent litigation [396] and to preserve peace. 1 Johns. Cases, 502. 6 Gill and Johnson, 312. If this were an application to let in the defences, now relied on, by way of amendment or bill of review, the appellees would be met by a very stringent rule, that which requires an affidavit, that the party did not know before of the circumstances on which the application is made. 6 Harris and John., 311. Md. Ch. Pr., 62, 179.
The effect of decisions by the Court of Appeals, upon subsequent proceedings in the cause, has been fully considered in a recent case in this court. McClellan vs. Crook, 7 Gill, 333. A party applied to the chancellor, after the cause had been remanded by the Court of Appeals, to be allowed by way of credit, for certain rents which accrued, pending the appeal, and which were within the principles established by the Court of Appeals, but could not have been introduced into the cause before. The chancellor refused the application, and this court said that to have granted the relief “necessarily required the chancellor to open the decree of this court, which was intended to be conclusive on the chancellor.” * * * “Upon the record before the chancellor, and upon the questions within that record, this tribunal has acted, and passed a definite decree, in relation to the entire subject presented to the chancellor and to this court Thus the whole subject then in litigation, has been finally disposed of by the decree of this court. That decree has become the law of the case, and the chancellor cannot otherwise deal with the matters, thus adjudicated, than in the form prescribed.” In that case equities depending on the principles of the decree were rejected, because of its conclusiveness; although they arose, after the decree of the chancellor was passed, and could not have been brought before the Court of Appeals, when the case was before that tribunal; and although they were after-wards presented to the chancellor, before the decree of this court was executed, and the mortgaged estate sold. Here the matter had arisen, and was known to the parties, before their answer were filed, and, if available at all, was proper to be presented at that time. The subjects then in litigation [397] were the agreement, specific performance, partition, and account, as asserted in the bill of complaint. The facts now-relied on, as sufficient to warrant this court in re-moulding the decree of the Court of Appeals, were pertinent to the last three of these questions; and not having been introduced before “these subjects of litigation were disposed of.” We think it cannot be done now, without “opening the former decree of this court, which was intended to be conclusive.” If it were newly discovered matter, sought to be availed of in a proper form of pleading, the case might rest on different principles.
But it is said that further proceedings were to be had not only according to the principles of the decree, but also “according to the rules of equity;” and that this part of the decree authorises the court to examine the whole record, and to decide according to the equity of the case as now presented. We do not think that these words designed to impair in any degree, the conclusiveness of the decree, as to any rights that had been thereby determined. There was a very important judicial duty to be performed by the court below, in carrying that decree into effect. A partition was to be made and accounts stated. A certain interest in the coal under these lands had been adjudged to the appellant, which was to be laid off to him by surface measurement, in severalty, or by separate alternate enjoyments of the whole for limited periods, or by a division with compensation for equality; or by some other mode that would effect justice among the parties, in view of the peculiar and complicated nature of the property, and its condition, as to rights, modes of enjoyment, convenience, accessibility, and the conflicting causes of other persons. .1 Story Eq., 656, a. b. These and the accounts, were matters to be settled according to the rules of equity; but in subordination to the law of the case, and the rights of the parties as established by the decree. It sometimes happens that collateral proceedings are necessary to aid commissioners and other officers of the court, in the performance of their duties; and hence, in this case, the complainant and the [398] commissioners both suggested to the court, that difficulties had occurred in making the partition, by reason of these conveyances, and it -was to enable them to adjust the equities arising out of this state of things, that they asked the advice and direction of the court.
It could not have been the design of the complainant to open new issues on questions of right, that had been decided by the Court of Appeals. His petition invited no such controversy, and admitted of no answer to that end, though it was proper for the defendants to answer it, if they chose, for the purpose of having these collateral questions brought fairly before the court. But certainly not to reduce the claims and rights of the complainant, within narrower limits than had been assigned to them by the decree. These proceedings, therefore, being proper to be considered in connection with the mode of making partition, and not to limit the “rights, interests’ and privileges” of the complainant, as established by the decree, we proceed to express our views of this part of the case. We are reminded by the counsel for the appellees, that “in cases of partition, a court of equity founds itself on its general jurisdiction; and administers its relief, ex cequo et bono, according to its own notions of general justice and equity between parties,” (1 Story’s Equity, 656, c,) and it is insisted, that according to this principle, the appellant should be restricted to the smallest measure of relief, consistent with the principles of the former decree, in view of the extreme hardship, and probable ruin, that may result to the appellees, if his claim be allowed to its full extent. If these should be the consequences, they will flow from the agreement of the appellees with Neff, and their subsequently dealing with these lots as if their contract had not been made. It must be remembered that Young has succeeded to the rights of Neff, whatever they were, at the time of the assignment to him, (August 1843.) And we do not understand that any laches is imputed to the complainant in making known his claims under the assignment, however culpable Neff is said to have b'een in this respect. The deed from Neff to Young was [399] executed on the 22nd August 1843, and recorded 2nd October of the same year. His bill was filed 17th February 1845, This deed was notice to the appellees, not only that Young was the owner of all the land derived from Josiah Frost, by Neff, which he, (Neff,) held on that day, but, also, that he was assignee of all his rights and claims, under the agreement of October 1828. As the appellees were parties to that agreement, they must be treated as having had knowledge of its terms and import, and of the rights conferred by it; and that any sales or transfers of these lots, without reserving Young’s interest in the coal under them, would be made in violation of his rights, as assignee. Under any aspect of these equities, therefore, the decree would be reversed, because the court below erred in restricting him to partition of the coal remaining at the time the suit was commenced, and, as to the coal under the lots, sold by them prior to the deed to Young, it is not a sufficient answer to say, that they only designed to dispose of their own interest and estate in them; and that the purchasers, claiming under them, are not entitled to all the coal which underlies these lots. In the first place, the deeds are not in the record to shew what estate they conveyed ; and if they were, and it appeared that one-third of said coal was reserved, equity might require this third to be laid off to them in ascertaining their shares, in order to relieve the appellant from the necessity of adjusting, with Frost’s grantees, the equities likely to arise under this interpretation of the conveyances. And if, on the other hand, the lots were sold in fee-simple, and they have received what they deemed their fair value at the time, why should not the same mode of partition prevail? This is sometimes done where portions of the land, held in common, have been sold, or otherwise exclusively appropriated by one or more of the parties, and we see no objection to the application of the same rule, in a case like the present, if the quantity of coal so appropriated, can be ascertained. If the defendants instead of selling these lots, had opened the mines, and made expenditures for working them, and were so engaged, equity might give them a fair claim to [400] have this part of the coal-field assigned to them, to save their improvements and investments; and a similar arrangement would be applied in favor of the appellant, and others interested, because it might best accommodate the parties, and render their shares of most value to them, with reference to their respective situations in relation to the property before the partition. 1 Story Eq., 656, (c.) 1 Young and Collyer, 538. 2 Ditto, 586.
These vendees cannot be molested in the enjoyment of their property, according to their titles under the deeds. They are purchasers without notice of these equities, and their title is paramount to any of these parties, who only held the coal, and not the land, in common. As to the land, they held by metes and bounds, in severalty. Each had a right to sell in fee and to pass a clear title in the coal to a bona fide purchaser, without notice of the equities existing between the grantor and the other parties to the agreement of October 1828, Neff might have protected himself even against these purchasers by notice of his claim, but we are not now dealing with them. The question is between the parties to the agreement. And as to the appellees, was any notice of claim from Neff necessary, when the law presumes that they knew his rights as well as he did himself; and that in selling these lots, without reserving his third of the coal or obtaining his consent, they were rendering themselves liable to the equities and modes of adjustment, which a fair partition might render necessary? A man will not be allowed to enter into an agreement and then plead his ignorance of its obligations, as an excuse for perpetrating wrong and injustice to the other party. 1 Gill, 29. It is not the case of a bona fide vendee without notice, but is like that of Casey vs. Inloes, 1 Gill, 501, 502, where, each party being equally aware of the rights of the other, notice was held to be unnecessary. Some of these deeds were executed after 1835, when they had been notified of the claim of Neff; and sales were continued, between the time of Young’s purchase and the filing of his bill, and even after the filing of the bill, the appellees thus seeming [401] to disregard the claims of the parties, when presented in the most formal manner.
It is said, that it would not he unfair to the complainant to charge the defendants with the value of the coal under the lots sold by them at the time of the sales, because the purchase was made by Neff, as a speculation, at a time when this coal was of little or no account, and that Young, coming in under Neff, purchased a law suit, and deserves little favor at the hands of this court. The Court of Appeals, on the former appeal, said, that the complainant was not obnoxious to the charge or consequences of champerty, and this question is not now before us. It is not to be imputed to Neff, or his assignee, that he purchased an interest in these coal lands with reference to their prospective value, if no advantage is shewn to have been taken of the other parties. We know that the coal lands of Maryland have presented a field for speculators for years past, and we are not aware of any reason that should prejudice purchasers of this kind in the estimation of our courts. The same might as well be said of every purchase where the property has risen in value. This result is often the object in view, and no man would embark his means in developing such resources, if he was likely to be deprived of his property upon the discovery of new elements of wealth, unknown to the parties at the time of the transaction. But if all be true that has been said of the estimated value of these lands, when this agreement was made, the speculation scarcely possessed the merit of any consideration in exchange for the absolute and certain interests that Neff conveyed to the Frosts, and if the venture has turned out to be profitable, he or his assignee may rightfully claim the gains as a compensation for the risks. If the lands of the Frosts had remained as valueless in coal as they were then considered, the loss would have been all on Neff’s side, and the appellees would have been the gainers, to the extent of two-thirds of the coal in his hands. He would have had no cause of complaint against them, and could have set up no such equity against the execution of the agreement. Considering the [402] nature and the character of the property, we think that compensation in money, as of the time of the sales, would not be the most equitable mode of making the partition, but that coal should be assigned to the complainant for his full share, regard being had to quality and quantity, if it can be done with reference to accessibility and the convenience in mining, of all the parties interested. This is not like the case of Carter vs. Carter, 5 Munf., 108, relied on by the appellees’ counsel. Besides the important difference in the nature of the property, and the objects of persons in entering into transactions of this kind, which would not always be gratified by compensation in money, or by assigning the coal under these lots at a given price, in that case the party, who had been in possession of the property for a long time, himself discovered the title of the others, and notified them of it, immediately after it was discovered by himself. Here the parties were not ignorant of the rights of Neff, and, more especially, not of those of Young; and with this knowledge, they continued to deal with the property as their own, and ta make, sales, and to convert these coal lands into corporate, property-,, without any reservation of Young’s interest, before ...and after the bill was filed.
The claim set up by the Frostburg Coal Company and Messrs. McKaig, may he disposed of by what has been said as to the, sales of the other lots. At the time the bill was 'filed, theirs was but an. equitable title, and posterior to that of the complainant, even if the deed from Neff were not sufficient to put them on enquiry as to the title, and to charge them with notice of Young’s claims. 5 Gill, 483. There does not appear to have been any action on the proceedings introduced by these parties, and therefore no specific relief could be granted them on this appeal, if the facts of the case gave them a right thereto.
It is impossible for this court, in ’cases like the present, where so much depends on the situation of the property, and the judgment .of scientific men, and of persons practically acquainted with its nature and value, to furnish specific direc-. [403] tions as to the different alternative modes of making partition. We can but declare the rights of the parties, and leave to the court below the important duty of executing our decree, according to the best guides to be obtained.
The fourth point of the appellant does not present sufficient ground for reversing the decree. In England the decree provides, that the parties shall execute mutual conveyances, to vest the title in severalty; “but in this State, the final decree confirms the partition, and declares that each party shall hold his share in severalty, and this decree operates as a conveyance.” Md. Ch. Pr., 166. If, however, parties desire such conveyances, they would be provided for in the decree.
A decree will be passed, reversing and remanding the cause.
Decree reversed and cause remanded.