*1 nеgligence there is would as be- be actionable obligation private persons, tween and that moral therefor, compensation the State make and the exists to appropriation payment, State has made of funds for duty necessary is of the State Auditor to make the payment disbursement for of such moral indebtedness. Any principle further discussion of the enunciated in the authorities referred to needless. opinion are of the this case
We falls within the cases, mandamus, enunciated in those and the rule writ in prayed by petitioners, hereby awarded.
Writ awarded. Polly Adkins, et al. al. Adkins, et
French (No. 10786) January April 1957. Decided Submitted *2 Floyd Harrison, appellants. J. for Ferguson, III, Philip A. Ferguson, J. Charles W. Milton Baer, appellees. for Judge:
Haymond, Court equity in the Circuit This a suit in instituted plain- Wayne County in which on October husband, Adkins, Polly her and Homer Adkins tiffs Bradshaw, wife, Mae his Dolliver Bradshaw and Vernon Bradshaw, wife, Mary Helеn Blanken- his Bradshaw husband, Blankenship, Blank- ship Floyd her Jewell husband, Ella Blankenship, enship her and Albert a deed and set aside seek a decree to cancel Gilkerson Burgess, Special July made W. Earl dated Commissioner, French Adkins and to the defendants Wayne sixty of land in Adkins for a tract of acres Nora County, Virginia, plaintiffs West which the contend land, require a cloud their title to the and to rents, profits to account issues and defendants during period which have accrued to the defendants foregoing possession land. of their tract of Bradshaw, Polly Adkins, plaintiffs Dol- Vernon Bradshaw, Blankenship Ruth and Jewell liver Helen age Blankenship, twenty all of whom were over instituted, years are children and one when this suit was law, plaintiff Ella at and the Gilkerson is heirs Bradshaw, widow, Bryan who died intestate in land claim to be the owners of the virtue and as such September 4, Bryan made to Brad- of a dеed dated Bradshaw, Bradshaw, Sr., by Joe and Vada his shaw wife, also died before the institution of both whom this suit. complaint plaintiffs the defend-
To the bill of *3 demurrer, special plea a a of the statute of ants filed they limitations, an in which denied and answer the allegations complaint. The of the bill of de- material rejected, overruled, special plea the and murrer was the of the circuit court bill the case was heard answer, testimony the of complaint, and witnesses By respective parties. final produced in behalf of the 19, 1955, April apparently but entered decree dated 20, 1955, April the circuit court set aside as null record 30, 1942, July sixty void the deed dated acres and Burgess, Special Commissioner, made Earl of land against defendants, plain- rendered for and the defendants taxes costs in in favor of tiffs aggregating paid by proceeding the defendants another $195.00, declared to be a lien the tract which was land, sixty rendered that and also acres expended by parties pay each respective the costs them. 20, 1955, April court had announced its after the
On foregoing entry decision, apparently but before decree, separate decree, by the court refused to a final petition a an to file for allowance permit the defendants improvements alleged $2,500.00 of the value of good have been made them faith land in during period they occupied of time for a sus- pension of the execution of the final decree until improvements they amount of the entitled were by jury. should be assessed a cancelling July
From the final decree deed of Commissioner, Burgess, Special made EarlW. granted appeal to the defendants this Court supersedeas upon petition of thе defendants. September 4, 1933, Bradshaw, Sr.,
Prior to Joe owned simple By in fee the land involved in this suit. deed of date, evidence, that Joe Brad- which was introduced shaw, Sr., Bradshaw, wife, conveyed the and Vada his sixty Bryan land tract of acres of Bradshaw. $700.00,
consideration stated in the deed was of which cash, paid owed to a farm $150.00 $500.00 designated person company loan owed to a $50.00 grantee Bryan paid by the Bradshaw. The were to be deed contained a reservation of life estate each of grantors property continued to live on the until who Bradshaw, Sr., died October each of them died. Joe died in 1941 Bradshaw 1953 and Vada appears Bryan It that Bradshaw who died intestate 28, 1934, February purchase pay unpaid did money loan, due on the farm $500.00 this in- paid by Nancy Bradshaw, debtedness was the wife of Bradshaw, Jr., nephew Bradshaw, Sr., Joe of Joe Bradshaw, Sr., repaid and that October Joe her in amount to December 1939. On December *4 Bradshaw, Sr., obtained a Joe in the Circuit Wayne County, Virginia, against of Court West E. D. Bunn, Wayne County, of Sheriff Administrator of the Bryan Bradshaw, principal Estate of in the sum of $792.- interest and 00 with costs. $15.00 Bradshaw, Sr.,
In Joe October instituted a suit equity Wayne in in the County against Circuit Court of Bunn, Wayne County, D. Sheriff of Virginia, “E. West Bradshaw, Bryan de- the of Estate of Administrator County, Wayne ceased; Bunn, West D. Sheriff defendants, namely, Virginia, of the infant Guardian aged Bradshaw, aged years; Polly, ten fifteen Dolliver Vernon, aged years; Ruth, aged years; eleven Helen aged Jewell, eight years; years; Ella Gilkerson seventeen Gilkerson, was her husband.” summons Mack and personally and was November Rules at returnable Administrator, Guardian, Bunn as upon Bunn as served Gilkerson, Mack on October and and Ella Gilkerson 1941. complaint, in
The bill of which was introduced evidence, By filed October dеcree entered during Regular Term, November November Wayne County, Court Ham- of the Circuit Jess guardian appointed ad litem the infant mock was filed answers their behalf. and as such defendants they filed the notation were answers bear These 23, 1941, they verified and were December October 10, 1941, a decree of sale entered December 1941. On the decree were introduced contents of in the case. The language: this decree contains and the in evidence day upon “This cause came on to be heard regularly rules, upon and its exhibits filed at bill upon defendants; thereon and service had nisi joint separate upon the and several and answers answers Hammock, the infant defendants Jess their Guard- Litem; upon the and ian Ad former orders decrees made herein; upon entered heretofore enter- cause; and recorded defendants ed in this open taken presence court in evidence Litem, guardian Ad of the Guardian on others support plaintiff and in bill. From behalf his appear plaintiff it doth entitled all which is, therefore, prayed for said bill. It his to the relief adjudged, and decreed that ordered tract of land set accompany- bill in the in said deed described out ing bill, satisfaction sold lien said necessary or so much thereof plaintiff held *5 discharge pay the off and the of action and costs this bill, purpose the of set out in the and for making Burgess sale, hereby appointed said Earl W. time, Special Commissioner, the as who shall advertise News, County place Wayne terms and for the time, requisite the and the same at the East front sell day house, hand on door the court for cash in sale; received, proceeds pay and so he shall off from discharge then, and of this aсtion and dis- the costs charge plaintiff, together the amount due to the with thereon, should and cost and monies remain interest same, over, sale, pay he his from said shall hands proportion the defendants and those entitled there- according interests, to, respective but before to their making sale, Special the said Commissioner shall ($1,000.- penalty of One Thousand enter into bond in Dollars, 00) before the Clerk of this Court conditioned discharge of his the faithful duties distribution may hands. come into his of the monies adjudged, decreed, “It is further ordered and that there Twenty ($20.00) be taxed a statute fee of Dollars and a ($10.00) Dollars, part Guardian Ad Litem of Ten cause, Special in this and what the costs said Com- hereunder, report do he missioner shall to a succeed- shall ing court, until term of this which time this case is con- tinued.” special
The deed made commissioner defendants, dаted, executed, acknowledged July August 28, 1942, and recorded in Deed Book county Wayne page of the office clerk of omitting County, description conveyed property of the agree litiga- counsel land involved in this tion, provisions: these contains day July,
“This deed made 1942, by Burgess, Special between Earl Commissioner, party part, of the first and French Adkins, Adkins and Nora wife, parties part, of the his second all County Virginia. Wayne State of West Whereas, part party “Witnesseth: first appointed Special to advertise and Commissioner sell described, by a decree of the estate hereinafter Cir- real *6 Wayne County, Virginia, made and cuit Court of West December, 1941, highest day of entered on the 10th the sale, Chancery for the at said in that certain bidder same styled, Bradshaw, Sr., pending, therein vs. Cause Joe Bunn, Sheriff, etc., in of D. of record the Office Wayne County, Court of the of the Circuit West Clerk and, Chancery page 255, Virginia, Order Book at undersigned decree, “Whereas, pursuant the to said property did for Special advertise said Commissioner decree, exposed sale, by required as said and the same sale, decree, day May, on the 9th of out in said set Bradshaw, Sr., announced at Joe as the which sale herein, agent part placed the parties of the second of the property, property and highest the and bid best through part, parties of the the second sold was Bradshaw, and, Sr., agency of Joe Sr., “Whereas, Bradshaw, the said Joe directed herein, parties part the the second deed be made to of existing agency of him and the because the between part herein, purchase price parties of the and second Eight having paid Hundred and in the amount of been Cents, Eighty-seven ($887.15), and Fiftеen Dollars by authority part, of the party of the virtue vested first by made entered in the above him the decree and cause day bargained sold, to, and and has this referred grant convey parties presents and unto these does piece, parcel part all that certain or tract of second being District, County, Wayne lying in Union land particularly Virginia, more on the waters West particularly Fork, more bounded and which is Miller’s * follows, *. to-wit: —* described as party part first parties “The of the warrants unto the part, that authority second virtue of the vested styled orders and him said decrees in the above described, Chancery right Cause set out and he has parties convey unto the the title said lands executors, heirs, part, second their administrators assigns forever. part Whereof, party first has
“In Witness day July, his hand and seal this the hereunto set Burgess, Special Earl Commissiоner.” he had clerk of the testified that The circuit court original papers in that and the records examined suit office, papers filed in case found no his he summons, precipe, the answers other than the guardian litem, other than the ad and no decrees 24, 1941, December of November decrees knowledge no recorded or order and that his there entry of the decree of sale in the suit after entered special report commissioner and no clearly con- that no decree indicates filed. evidence *7 firming The bill of com- the case. entered in the sale was produced, not introduced plaint its contents were was not destroyed. evidence, apparently it been lost has and in by special After deed the de- the commissioner was Bradshaw, Sr., they to the and Joe livered defendants premises together occupied the and his wife the until possession in Bradshaws died the defendants were and property The de- suit was when this instituted. they improvments the on fendants testified that made fences, consisting repairs principally and addi- land of house, well, gas dwelling and a to the the barn and tions equipment, that and water service lines and electrical and and had they planted shrubs had some flowers farmed of the land. Neither defendant cleared and some improve- any any placed on of the various definite value equip- for the electrical except the ments cost $250.00 the for the line but and net cost of water $30.00 ment Adkins estimated that defendants defendant Nora $2,300.00 prop- on spent $2,000.00 had between erty.
The defendant French that Adkins testified the market property defendants, value after the at Bradshaw, Sr., conveyed De- instance Joe had tract, year thirty sixty cembеr that acre acres acres, ninety which in fact contained about one Bryan Bradshaw, deceased, $1,500.00, at heirs law of was remaining sixty acres, and that the market value of the $3,500.00. He also when he testified in March Bradshaw, Sr., together testified that he and Joe had improvements; the land worked and made the money only paid property he had costs amounting $95.00; of the suit was sold amounting paid approximately he had taxes during $194.07; year and that had he received before produced the institution of this suit from tobacco $600.00 plaintiffs, the land. In one of the on rebuttal who was land, all familiar with the estimated cost of im- by provements property made on the defendants approximately $250.00. assignments By their seek re- error the defendants grounds: of the final (1) versal decree on these This suit is a collateral attack the cir- entered jurisdic- cuit court suit in which the another court had parties, (2) tion of matter the de- petition fendants were entitled to file their for allowance improvements made them on the tract of land of recovery sixty improvements. acres and to a for such controlling question presented assignments of error is whether the sale entered December 10, 1941, Bradshaw, in the Sr., suit instituted Joe judgment, merely collection enforce of his erroneous voidable, or is void because the circuit court lacked *8 jurisdiction and, such, subject enter as to collater- upon al If attack. this suit constitutes a collateral attack original decree sale entered in the Decem- suit on by ber which as to the matters determined that appealable, decree, though is final and and voidable, jurisdiction and lack erroneous is not void for it, plaintiffs pronounced court can which not any maintain this suit and claim the defendants for upon improvements made them the land can proceeding. in established allowed portions It is clear from the the record in ori- ginal suit introduced in evidence in this case Wayne jurisdiction County Circuit Court of had parties matter of that suit and to it. plaintiffs Polly Adkins, Polly Bradshaw, then Vernon Bradshaw, Bradshaw, Blankenship, Dolliver Helen Buth Bradshaw, then Helen Blankenship, and Jewell then Bradshaw, Jewell all of whom at that time were infants age twenty years, under the one and Ella Gilkerson were named as defendants the summons in that suit. Bunn, Bryan D. Administrator of the Brad- Estate of Bunn, defendants, shaw and E. D. Guardian of the infant Gilkerson, defendants, and Mack named who were also and personally process. Ella Gilkerson served with were
Though the record irregularity in that suit discloses guardian that the answers of the ad litem of the infant 23,1941, defendants were filed October but were not veri- fied until 2, 1941, guardian December ad litem was appointed by 24, 1941, decree entered November and re- in the 10, 1941, citals decree of sale entered December which can except not be refuted appear- contradiction ing record, in the upon show that the case was heard complaint bill of regularly rules, and its filed exhibits at upon nisi, upon a decree defendants, service had upon the several answers of the adult defendants and the separate answers of the infant defendants their guardian litem, upon ad former orders and decrees made entered, upon judgment entered the defend- cause, open in the ants evidence taken in court plaintiff support in behalf of the and in of his bill of com- plaint. by any These are not recitals contradicted facts contrary appear from the record.
The infant defеndants were process not served with suit, but under Section Chapter Article guardian Code, 1931, when a ad litem for an infant de- appointed accepts fendant appointment by fil- ing an answer behalf of the infant process service of required, is not the court them, has over they are its decree. bound See Linn Collins, 77 W. *9 656 592, 934; Chapman
Va. Branch, 54, 87 S. E. v. 72 W. Va. 235; 78 Tate, 207, S. E. v. 61 Va. 56 W. S. Hansford 372; Ferrell, 187; Ferrell v. 53 Va. 44 E. Eakin W. S. Hawkins, 52 W. Va. 43 E.S. Alexander Davis, 291; Hays Camden, W. Va. E.S. E. 461. S. Though , original record shows that the court in the had subject suit matter of the suit parties it, irregularities, to the. numerous defects and errors, consisting part indicating in of omissions failure comply procedural requirements, with substantial are by by disclosed record and the decree of sale of the irregularity, appears One record, land.. from the by institution of the suit the creditor within six qualification months from the date of the of the adminis- Bryan Bradshaw, trator of deceased. As the administra- Bryan tor and the Bradshaw, heirs and the widow of de- ceased, answers, were defendants in the suit and filed disclosed, of which contents are not the record as any objection by any does not show of them to the in- expiration stitution of the creditor suit before the qualification of six months from the date of the administrator, irregularity cured and the suit subject prematurely was not to dismissal because it was Casto, a creditor of instituted the decedent. Hess v. 197 E. Other defects shown the record consist of the action hearing Term, of the court in the case at the November regularly hearing, before it was matured for failing to convene the creditors the decedent re- as quired by 8, Chapter 44, Code, 1941, Section Article failing assign Gilkerson, Bry- to Ella as widow of Bradshaw, deceased, an her dower the land before de- failing creeing sale, its accоrd the debtor a rea- .time to redeem the land before sonable sale. The defend- protest the decree ants did because these their failure to defects. Whether do so cured the de- proceeding determined in need not be fects and for purpose of this suit defects will be treated sufficient to the decree render erroneous appeal. reversal direct attack on *10 Sites, In Sites 624, E. 2d 201, v. W. Va. 125 23 S. opinion language: Code, 44-8-7, contains we this “Under only think it clear way by that the the real estate which aof purpose, decedent can in be sold in a suit for that by personal representative decedent, stituted or of the by a creditor. must When such a suit instituted there prescribed be a convention' of the creditors the manner by statute, given opportunity present and an them to followed, procedure their claims. Until been has рroper estate, there can no be decree for the of real sale alleged personal and even where it is is in that the estate debts, only pay by sufficient to this can determined be showing personal estate, a or a of the settlement absence of estate.” The decree of sale in that case grounds upon held to and one of the Avas be erroneous appeal en it reversed this Court on was the which was try without of the of the decree sale convention generally of the decedent. “It is erroneous to creditors dower, land, in which a widow is entitled to decree sale assigning it without pay first liens or debts 2, syllabus, therein.” Point Sommerville her dower the widow Sommerville, 26 W. Va. 484. See also Gooch v. v . 56; 930; E. 37 L.R.A. N.S. Un 38, Gooch, 73 S. Va. 70 W. Underwood, Laidley Kline, 303; 22 Va. W. 8 derwood v. v. satisfy “A decree to land to thereon sell liens 218. Va.W. redeem, time to the dеbtor reasonable accord should 11, syl to do is cause for reversal.” Point failure so Company Davy-Pocahontas Abney-Barnes labus, Coal v. Company, King 292, E. 83 W. Va. S. See also 98 v. 1010; Travers, Burdett, E. Rohrer Va. v. W. S. 44 29 each 146. In of the above cited cases in which Va.W. 11 challenged decree was reversed in a direct attack suit, appeal it in the same decree was held to be er which but constituted cause for reversal roneous error jurisdictional not held to be or render the erron opinion Blankenship void. In the decree v. Moni eous gini, E. 105 W. Va. S. the effect of errors cause for constitute reversal which is considered and discussed. foregoing
If de it conceded defects in the that the cree of the decree in sale constituted cause for reversal of proper proceeding direct attack in the case review, by appeal none of circuit court or bill of defendants, by any remedies was resorted to jurisdictional those error defects did not constitute Blankenship jurisdiction did not affect the of the court. Mongini, E. Stewart v. S. 223; Hogan Ward, Tennant, 44 E. Va. S. W. 682,106 Va. E. 232. The effect of these defects was merely the decree of voidable and erron render ; not void. eous but because them the Blankenship In Mongini, 143 S. 105 W. syllabus point this Court held in 2 of the that “Where lawfully acquired parties a court has *11 subject litigation, subsequent and the de matter of the parture by procedure from the court rules of law or jurisdictional jurisdiction, in the excercise of that is not point 8, syllabus, Tennant, 52 error.” In in Stewart 559, 223, E. “A en Court said: decree W. Va. S. this cause, parties tered in a in all interested are be court, upon upon decree fore the a bill which such proper, have under certain conditions which would bеen allegations might by proof, upon of have been shown jurisdiction, exist, bill, void for want not is Jurispru may In 11 it be.” Michie’s however erroneous Decrees, the text re Judgments dence, Section irregular judgments, sup lating to erroneous or which is ported by many of this and of the Court Su decisions Virginia, preme Appeals contains these state Court judgment may directly attacked for be ments : a “While only proceeding irregularity, done in a direct can be court, appellate If an court. a court has or in in same proceed how erroneous jurisdiction, it is immaterial its collaterally judgment ques is called in ings are, its when language: also section contains this same tion.” a distinction between case where an obvious “There is jurisdiction to enter the com no has the court having general the court of, a a where case plained erroneously matter has ex- over be judgment cannot it. In the case ercised latter ap- and if any proceeding, questioned collateral jur- without pealed from, final; the court is where but nullity, mere treated isdiction, as its must be it, it, dependent are on proceedings all under void.” original Decem in the suit of sale entered
The decree recital irregular no in that contains also ber was decedent personal that estate the effect there was payment of debts or his insufficient Moon, In decedent. Schilb personal estate of the no real of the decree of lien, be entered pay a of a decedent estate settled had been the administrator accounts of fore ascertained, had been assets unadministered and the appeal; reversed on and was held to erroneous Blankenship decree, pointed out but Mongini, E.S. nоt held to be void. original suit,
The decree of however, sale in the ex pressly upon recites that the cause was heard the bill complaint and its exhibits and evidence introduced plaintiff support behalf of the bill of com plaint. complaint The bill of was not introduced in evi any parties dence to this suit and the nature allegations proof and the extent of its and of the offered support them can not be determined from the record. complaint As the court based the bill *12 proof allegations and the offered to sustain its and found plaintiff that the was entitled to the relief for he presumed, prayed, any it must be in the absence of record allegations showing contrary, of the bill complaint were and satisfied the re sufficient essential quirements prosecution the maintenance pay of a a suit to the real estate decedеnt to the jurisdic debts and that the circuit had ment his court Fink, 423, Fink of the case. v. 103 W. 137 E. tion Va. S. 703; Lemley Company, Wetzel v. Coal Coke 82 W. Va. 646; 153, Company, E. Penn Starcher South Oil 81 v. 95 S. 660 587,
W. Va. 28; 95 S. E. Allen Linger, 277, v. 78 W. Va. 837; 88 S. E. Printing Central District and Telegraph Company Parkersburg Valley and Ohio v. Electric Rail Jarrell v. Lau way Company, 120, 76 65; W. Va. 85 S. E. rel Company, Coal 752, and Land 933, 75 84 S. E. 1916E, 312; L.R.A. Mullins v. Laurel Coal and Land Com pany, 783, 937; Winding 75 Va. Colliery W. 84 E.S. Gulf Bumgarner Company Campbell, 384; 449, 72 Va. E. v. 78 S. Parkersburg, First National Bank 70 W. Va. . v 787, 996; Humphries, 74 88, S. E. Plant v. 66 W. Va. 66 White v. 94, L.R.A., N.S., 558; E. White, S. 26 66 W. Va. 79, 2, Rep. 1013, L.R.A., N.S., E. 135 S. Am. St. Point Pleasant v. 1279; 207, Greenlee, Town 63 Va.W. Rep. 971; Huffman, Am. St. Horner v. 132; 52 W. Va. 43 S. E. Saint Lawrence Boom and v. Manufacturing Company Holt, 51 W. Va. 41 E.S. 351; Fire-Clay Company, Moren v. American 44 W. Va. v. Hall 728; Phelps Smith, 522; 28 S. E. 16 W. Va. Ballard Hall, 1; Thomas, 14; Va. 12 W. 19 Gratt. Cox Thomas, 312; Jur., Judgments, 9 Gratt. 31 Am. Section 413; Jurisprudence, Judgments Decrees, 11 Michie’s C.J.S., Judgments, (1). Section Section Lemley In Company, v. Wetzel Coal and Coke 82 W. quoted 95 S. E. approval Court with R.C.L., these Judgments, statements in 15 Section page “Acсording rule, 893: to the common law adhered present states, to at the presump time most of the jurisdiction general tion in jur favor of the of a court of isdiction is conclusive and its be col cannot laterally ap attacked where no want of parent of record. Whenever record of such court is merely any particular matter, pre silent it will be sumed, notwithstanding silence, ought that whatever only right to have done was done been but that was ly done. So where the contains recitals as to jurisdietional import facts these are deemed to absolute verity portions other unless contradicted the rec Consequently ord. such a cannot collater showing ally the same state attacked courts of facts
661 record, although might aliunde the be sufficient such facts impeach proceeding it. in a direct validity collaterally of a attacked when by alone, must inspection be tried an roll and no other or further evidence on the is admis- sible, given.” not even evidence that no notice had been manifestly
This suit upon a collateral attack validity the decree of sale entered December original in the complaint plain- suit. In the bill of charge Burgess, tiffs that by the deed made EarlW. Special Commissioner, nullity, to the defendants is a by special that it was made any commissioner without authority court, from the and that it constitutes a cloud upon the plaintiffs title of property to the described in the prayed deed. The relief that the deed be set aside and declared to be void as a cloud the title plaintiffs; cancelled; it be and that the de- required plaintiffs fendants be to account to the rents, profits July 10, issues of the land from 1942.
The sale of property by special commissioner was made him virtue of the decree of sale and whether the deed made him constitutes cloud plaintiffs the title of property ultimately de pends upon necessarily question validity calls of the decree duly That sale. deed has been recorded years for more than ten before the institution of this regarded suit and it report should be as a of the sale conveyance equitable and as a of an title to the land. Caldwell, McGinnis Va.W. E.S.
L.R.A., S., N. 630. 11, Chapter Under Section Article 37, Code, 1931, presumption, there is a in the absence of contrary, evidence to the special commissioner who executed the deed convey was authorized to the land it, conveyed by and that persons the title of all professes convey, judicial deed under proceedings, pass did in fact such deed. Reed, Carmichael v. E. Johnston, Pardee 70 W. Va. 74 S. If the the defendants decree of sale is valid *14 sale purchasers pursuant to the decree of the land upon right a sale and have to seek confirmation for the a deed entitled to confirmation of the sale are Caldwell, 71 v. property purchased them. McGinnis for S., L.R.A., In that 834, N. E. Va. 76 S. W. equity would be slow “A court of case this Court said: right had vested after it deprive purchaser of to such his rights parties decree and the of the to under its own as If, however, liability ended.” of the land had been special of the decree of is void deed commissioner nullity to cancellation in suit as a is a and is this plaintiffs upon the land cloud the title of the embraced right short, plaintiffs to a In in the deed. cancelling upon a cloud their title the deed as validity depends upon the of the decree of sale and in- upon that decree. an attack volves discussing In the distinctiоn between a attack direct upon judgment, and a collateral attack a Nelson Trans- Storage Company Jarrett, 110 W. Va. fer S. E. determining this Court said: “In whether an judgment upon attack collateral, a is direct or the basic proceeding considered is factor be whether in- judgment, a or volves review annulment of or a mere as, effect, example, by preventing avoidance its predicated of an execution the enforcement thereon. In direct; latter, the attack the former instance is in the Pennybacker, Newhart collateral.” See also 120 W. Lough Taylor, E. E. Va. 200 S. 200 S. 754. In 180, 124 this definition of a col- quoted approval: a attack is with lateral attempt impeach judg- “A attack an a collateral is proceeding not decree in a instituted ment or for the annulling, express purpose correcting, modifying or Concerning decree.” or the distinction be- attack a direct attack and a collateral a tween Jur., Judgments, Am. the text in 31 Section distinction, “Under these statements: contains proceeding regarded direct where the an attack is brought it is made purpose impeach is ing or overturning judgment, if and as collateral any made in very by proceeding manner other than a purpose impeach judgment. of which is to or overturn affirmatively, Stated a collateral at this rule upon judgment tack is an or in an action attack made proceeding or independent purpose that has an other impeaching overturning judgment, than the or although impeaching judgment may overturning or necessary C.J.S., to the success of the In 49 action.” Judgments, 408b, Section attack defined collateral attempt avoid, defeat, as “an judgment, evade a deny effect, or to pro its force and incidental some ceeding provided by express purpose law for the attacking *15 quiet it.” In attempt a suit title an to attack judgment affecting regarded the land has been as a judgment though collateral attack even prayer petition contained a that the be vacated. Jur., Judgments, Am. 39 Section 616. See Rotwve v. Sil baugh, 138, 923, 1918D, 96 164 P. L.R.A. 466. See Wash. 311, R.C.L., Judgments, page also 15 Section 838. As purpose of this suit is to defeat or evade the manifest and avoid force and effect in con sale its land, review, and not to an with nection sale, modify nul, or decree of this suit must correct regarded attack that decree. a collateral consistently held that a Court has This general affecting decree of court of subject proceeding jurisdic it matter of a in which has collaterally matter can attack tion not be proceeding appears from the unless record of such ed jurisdiction and the court acted without be or decree of such action was void. cause Company, Lemley Coal Coke 82 Wetzel W. Va. v. Brown, 484, 646; Bell W. Va. 182 153, v. 116 E. 95 S. Storage Company 579; Nelson E. S. Transfer 97, 46; Jarrett, Fink, Va. 157 Fink S. E. 110 W. v. v. 703; Lough Taylor, 423,137 E. S. 97 W. Va. v. W. Va. 103 585; Huffman, 40, Horner v. 52 180, W. 124 E. Va. S. Johnson, 278, 132; 44 Va. W. 29 E. Smith S. E. v. 43 S. 664
509;
Huntington
First
Bank
Dis
National
Ceredo
v.
tilling
792,
Company,
530,
Am.
41
E.
56
W. Va.
23 S.
Rep. 878; Wandling
692;
St.
Straw,
Hall
v.
25 W. Va.
Hall,
v.
Pettigrew,
12
McKnight
1. See
v.
141
W. Va.
also
506,
324;
Lovejoy
W. Va.
91
E. 2d
ex rel.
S.
v.
State
denied,
Skeen,
901,
456,
138
78
W. Va.
E. 2d
certiorari
S.
940,
349
786,
1268;
U. S.
75
Ct.
99 L. ed.
Newhart
v.
S.
Pennybacker,
774,
350,
120 W. Va.
E.
200
E.
S.
200 S.
754;
Thomas,
769,
Crickmer v.
Va.
E.
120
200 S.
W.
353;
Company,
v. United States Coal and Coke
Hatfield
111
289,
572; Bailey
W. Va.
161 S. E.
v.
In
Firemen’s
Blankenship
surance Company,
75,
365;
108
E.
W. Va.
150 S.
301;
. Mongini,
530,
105
143
E.
W. Va.
S.
State
v
ex
Hall,
400,
166;
rel. Smith
94
v.
119
E.
W. Va.
S.
Hogan Ward,
682,
232;
v.
E.
87 W. Va.
106 S.
Starcher
Company,
587,
v. South Penn Oil
81
Va.
E.
W.
95 S.
28;
Linger,
277,
837;
Allen v.
78 W. Va.
88 S. E.
State
Collins,
Emsweller,
214,
787;
Va.
v.
78
88 E.
Linn v.
W.
S.
592,
934;
77
S. E.
W. Va.
87
Jarrell
Laurel Coal and
v.
Company,
752,
933,
Land
75 W. Va.
84
E.
S.
L.R.A.
1916E, 312; Mullins v. Laurel
Company,
Coal
Land
937;
75
E.
Citizens’
84
State v.
S.
Trust
Guaranty Company,
902; Chap
Va.
S. E.
Branch,
235;
man
Bumgarner
72 W. Va.
E.S.
v.
Pаrkersburg,
First National Bank
70 W. Va.
996;
E.
Greenlee,
Town
Point Pleasant
S.
63 W. Va.
971;
Rep.
129 Am.
St.
Hansford
Tate,
61 W.
S. E.
Lawrence
Saint
Boom
*16
Holt,
Manufacturing Company
and
352,
51 W. Va.
41
v.
351;
Brookover,
323,
E.
Watt v.
35
Va.
E.
S.
W.
13 S.
1007,
Rep.
Spurgin,
29 Am.
Evans v.
6
St.
Gratt.
107,
Pennybacker,
Though plaintiffs can maintain this suit or seek, they other obtain the relief remedies Caldwell, are available them. See McGinnis L.R.A., S., N. S. E. The final of the circuit court is reversed and that it to that court with directions this suit remanded plaintiffs. dismissed at the cost Reversed and remanded with directions. dissenting: Given, Judge, proceeding prosecuted express
This having only purpose of real a decree annulled chancery which decreed estate entered in a cause satisfy judgment. present real sale of estate to separate independent, distinct from the old suit alleged that the chancery the instant it is cause. In suit brought “purports lien to prior to be on suit satisfy real estate to sale of Bradshaw, Sr., by Joe said not instituted suit was creditors”, and himself all other benefit of complaint admits that the old the bill of answer to brought “chancery court enforce said suit was estate”; real said lien of $792.00 *17 the decree entered in the old suit was “void” reason process that “no was ever executed and delivered” any to plaintiffs except Gilkerson; plaintiffs Ella that knowledge” “had no pendency suit; of the of the that the suit was not hearing matured for at the the time of entry sale; of the decree of the sale never that was required by statute; advertised as that the were creditors convened; not and that no order ever entered сon- firming alleged addition, In sale. of sale chancery entered in the old on face that suit shows its finding adjudication there was no or to as whether alleged profits subject “rents and of the estate” to be real “satisfy judgment to the lien of the were to insufficient judgment years”. in five the decree show Neither does any finding adjudication fieri or that “an execution or facias” had or or that an been issued returned such years execution or fieri had not issued within facias two judgment. from the date of the
Depositions independent were filed in the suit estab- lishing definitely, held, and the circuit found and court effect, allegations proved. that the had bill been original chancery file of the old cause was before court, convening definitely and it is shown no that had; creditors was decree of was entered matured; finding adjudi- had before cause that no or profits madе to cation was as whether the “rents and alleged the real estate” to be lien “satisfy” years insufficient were five judgment sought enforced; finding and that be no adjudication any relating question made as any return of execution or fieri the issuance or facias. practically holding The authorities are unanimous in judgment may directly being void, be attacked as voidable, merely independent proceeding an such cause, may instant and that an attack appears the fatal defect made whether on the face of attacked, on face of the record entered, wherein the case attacked was or on produced independent support evidence proper al- *18 legations. in Smith clearly unequivocally held This is and Stephenson v. Johnson, 278, 44 E. 509. See 29 S. 585; 141, Bennett Ashburn, E. 2d 137 W. 70 S. Va. Cable, Bennett, 894; Cable v. 70 E. 2d 137 W. Va. S. 132 Lumber Co. Va. E. 2d Chilhowie W. 53 S. In Co., v. Lancе & 49 41 128. S. C.J.S., Judgments, judgment “A it is said: Section jurisdiction open or of for which is void want collateral, well impeachment in a to contradiction or direct, collaterally proceeding. In to at as a order be affirmatively ap jurisdiction the of must tacked want showing record, pear the and the facts the on face of the alleged.” jurisdiction the In same want of must be sec “* ** although tion, pointed the it is court has out subject matter, judg parties jurisdiction the the and jurisdiction respect to the void for want of with ment is judgment particular or power render the of the court to entertaining court, decree, in as where the case, judgment particular rendering in a exceeds statutory on it constitutional powers conferred the * * Jur., Judgments, provisions See 31 Am. Sections Judgments Decrees, 604; M.J., Section opin Virginia majority cited the decisions 145. West Sulphur Springs, Inc. White in accord. ion are See 486, E. 2d Ripley, Va.W.
Code, 38-3-9, may provides judgment that the lien of a only appear equity in a “If it enforced court of profits the such court that rents and real estate satisfy judgment subject to lien five will * * years precedent power Another condition provided a decree of of the court to enter such sale is language: judg- “The lien that section may equity be enforced in a court after an exe- ment duly thereon has been or fieri returned to cution facias justice the court or to the office of from which it showing by property thereon that no the return issued execution be found from could be could Provided, may equity lien be enforced in made: that such an execution of fieri such return when facias without has not years issued from date within two ** Westinghouse In Lamp Ingram, Co. v. 79 W. Va. 90 S. E. this Court held: A debtor’s “1. real estate pay judg can not be decreed ment liens proper thereon until such real has been estate ly appears ascertained and it that the rents the court profits satisfy thereof will not within five such liens years.” opinion, In plain the Court said: “The law is duty toas enforcing judgment court liens says: real appear estate. It ‘If to such court profits the rents and real estate satisfy years, the lien will not in five *19 may estate, any part court decree the said real thereof proceeds discharge to applied be sold and the to the judgment.’ 7, chapter the Section 139 of the Code. This precedent right is a condition to No sell. sale can profits had satisfy be unless the will not the rents judgment years. affirmatively appear. in five This must This has been the law since 1882. Newlon et al. v. Wade al., 283; point et syllabus, 43 W. Va. 3 of the Dunfee Childs, holding Va. 155.” the To same effect is the Abney-Barnes Davy-Pocahоntas Co., v.Co. Coal 83 W. appear E.S. These cases leave decreeing no doubt that before real the estate for judgment, court, entering the satisfaction of a before sale, a decree of must that have “ascertained” the rents profits satisfy judgment will not within five years provision and that in the statute constitutes precedent right “a condition to sell”. Courts act only and, any their orders since no decree shows jurisdictional fact, ap ascertainment of the the decree pears be, question void, may without void. If it un cited, attacked, collaterally der authorities or direct ly. complaint I am of the fact not unaware bill of produced chancery was in the old cause not and that may possibly necessary allegations it have contained all bring allega However, the matter the court. before an can amount tо ascertainment a fact. tions not the court did not remains “ascertain” such fact only cause, facts and that in that decrees entered brought court, finding before the made. show no
Yet, reason, for another the decree void on of sale is face, its jurisdiction for lack of The record court. chancery in the cause, old court, before the trial does show, nor does appear, it otherwise execu that an tion was first issued county directed to the sheriff of the “resided”, wherein the judg debtor as to the sought ment lien enforced, to be before the institution Lewis, of that Fisher, cause. In Judge, Trustee v. 171 S. this Court held: “In order to
give jurisdiction circuit court to entertain a lien suit to judg creditors’ the real estate of the judgment, ment debtor to the lien of ap it must pear that an execution was first issued directed to the county sheriff of the wherein the re debtor sides, state, if a resident of this and that such execution property opinion, returned ‘no found’.” In “* * * Court stated: It is thus seen that the lien of a judgment upon purely Being statutory. purely land is lien, statutory equity, of a court of whether be inherent or whether it be conferred statute, any statute, event based and the equity taking jurisdiction court of for its enforcement may provided not extend it to cases not for in the statute Company Gordon, Canal Wallace 18 L. itself. Mfg. Phillips, Aldine Co. v. 118 Mich. Ed. *20 Rep. 380, 531; Buchan 74 Am. St. L.R.A.
N. W. Chancery (N.Y.) 47 Am. Sumner, 2 Barbour’s v. Dec. 305.
“Having determined that both
remedy
the lien and the
dependent
for its enforcement
are
statute,
question arises:
property
is the issuance and return ‘no
jurisdictional
an
found’
execution made a
matter
question?
undoubtedly
statute
think
We
that it
requirement
This
is.
is intended
statutory
to be the
legal remedy
method
is shown that
has
pursued
statute,
result.
been
without
Under
it is then
only
equity
then
that court of
tаkes
grant
enforcing
relief
the lien of a
* *
256, 28
Cooper Mullenax,
land
Va.
See
v.
466, 24
426; Early
Fogle
Co.,
E.
Va.
S.
2d
125 W.
v.
&
Guaranty
Fidelity
S. E. 2d
Co.
United States
Eary, Judge,
In the of Mills case 183 W. special 2d we “A held: commissioner’s deed for land, containing provision conformity not in with directing requirements confirming of the decree deed, pro logically execution of the is tanto void.” Is it special hold deed consistent commissioner’s “conformity” “void” not in the decree of because with confirmation, special deed “not while a commissioner’s attempt void” where there no to enter such a decree ? my view, plain, precise holdings In these as to the controlling, questions statute to the exact here involved, ignored, and, should be not overlooked or when considered, they require just opposite a conclusion majority. reached conclusion indicated, respectfully I For the reasons I dissent. the final decree of the would affirm Circuit Court of County. Wayne et al. Michael Lewis,
John et al. Asseff, Sheffek (No. 10823) January 1957. April 9, Submitted Decided