51 W. Va. 559 | W. Va. | 1902
Hezekiah Sargeant died in June, 1885, being then the owner of a tract of land situated in Webster County, containing one hundred and eighty-eight acres which he disposed of by will, de-rising to his wife, Anna Sargeant, one-third of it and to his three sons, Granville, Melville and Perry, and his daughter, Lydia Conrad, the other two-thirds to be equally divided among them except that Lydia Conrad was to receive one hundred dollars less out of the real estate than the sons were each to re-' eeive, and the will further provided that there should be paid Cora Sargeant, the testator’s grand-daughter, one hundred dollars when his real estate should be sold. Sometime afterwards Granville Sargeant died intestate without having disposed of his interest in the land and without leaving any children or widow surviving him. His father had been twice married _and Perry Sargeant was his half-brother while Melville Sargeant and Lydia Conrad were his full brother and sister and Anna Sargeant was a .step-mother. Hence, Anna Sargeant took no part of his interest in the land and Perry Sargeant, being only his half-brother, inherited only one-half as much of his interest as Melville Sar-geant and Lydia Conrad. Granville Sargeant’s interest in the whole tract of land under the will having been one-sixth, Lydia Conrad inherited two-fifths of said one-sixth or two-thirtieths of the whole tract. Before the death of Granville Sargeant, Lydia Conrad conveyed to Perry Sargeant the one-sixth which was devised to her, but she never disposed of the two-thirtieths which descended to her from Granville Sargeant, but, before the bringing of tills suit, she died and said two-thirtieths descended to her children, Posa M. Gillispie, Hetty Conrad, Geo. P. Conrad, John B. Conrad and Clevor 0. Conrad; the last four of whom are infants, who are made parties to the amended bill filed in this cause and for whom a guardian ad litem was appointed and filed an answer. Melville Sargeant conveyed his interest by devise, descent and purchase to G. M. Fleming, trustee, to secure a debt. Fleming afterwards sold the land and it was purchased by said Loudin but Fleming retained a lien
Section 4 of chapter 112 of the Code, providing for the adjournment of the holding of a court to a future day when its term is about to end without dispatching all its business, as was done in this case, contains the following clause: “All judgments, orders and decrees, rendered and made by .such court before or during the day on which said court adjourned to such future day, as aforesaid, shall 'have the same force and effect in all respects as if said court had’finally adjourned on that day.” This statute has been construed in the case of Wikes v. Railroad Co., 14 W. Va. 157, in which it is held that by force of said statute the terms of the court as to a judgment rendered by it before or during the day on which sucli adjournment becomes .filial is ended, it is not competent for the court or the judge thereof at the adjourned term or any other subsequent term to receive a bill of exceptions and sign it and make it a part of the record in the cause. This case was cited with approval in
.It remains now to determine whether there is error in said decree and, if so, whether it is prejudicial. It is not enough that the decree is erroneous. The error must be such as to prejudice the rights of the party complaining of it or the decree will not be reversed. Clark v. Johnson, 15 W. Va. 804. It does not appear from the record that there are any creditors holding liens upon any of the interests in the property except Fleming and Cora Sargeant. As to, the debt due Fleming, commissioner, the court ascertained and fixed the amount of his lien upon the interest formerly belonging to Perry Sargeant at the date of the decree and declared it to be a lien upon that interest. As to the one hundred dollars due Cora Sargeant, the decree of sale is silent and in lieu of settling and fixing the amount of that charge and ascertaining the interests of the various parties in the land the decree contains the following provision : “The court will, upon the coming in of the said report of sale, settle the right of all the other parties as to the said proceeds of sale, decree as to costs and provide for the investment of the interest of said infant defendants according to law.” The amopnt due Cora Sargeant differs in its status from a lien acquired by a creditor .of one of the co-tenants; upon his interest in the land. It is a sum given to her by the testator to be paid to her when the real estate of said decedent should be sold, and it is claimed by her that by virtue of this provision of the will it was made a charge upon the whole of said tract of land. . However, it is still only a lien upon the land according to her contention. It is well settled that in creditors’ suits it is error to decree a sale without first ascertaining- the amounts and priorities of the liens and the respective interests of all the parties in the subject matter. Livesay v. Jarrot, 3 W. Va. 283; Rorer v. Travers, 11 W. Va. 147; Marling v. Robrecht, 13 W. Va. 440; Scott v. Ludington, 14 W. Va. 387; Payne v. Webb, 23 W. Va. 558; Pickens v. Dent, 50 W. Va. 382, (40 S. E. R. 512). But it is held generally by the courts that partition never affects the interest of third persons and that creditors have no concern with it and that if they are made parties to the suit it will be dismissed as to them. Stevens v. McCormick, 19 S. E. 742; 2. Rob. Pr., Old, 14; Watton v. Copeland, 7 John Ch.
Where, from insusceptibility of partition, the land must be sold, reason suggests that lien-holders should be made parties and the payment of the amounts due them, according to priority, provided for in the decree of sale. Analogy to the principles governing sales in creditors’ suits would lead to that result. But it seems not to be the. law. Many authorities hold that, in the absence of statutory provisions requiring lien-holders to be parties, the land must be sold subject to the liens. “But when, instead of a partition, a sale of the property is ordered, it is evident that some means must be devised for the adjustment of the conflicting interests of the lien-holders and of the purchasers at the sale. Even where a sale is sought, lien-holders are not, in the absence of- statutory provisions to the contrary, necessary parties defendant; because they cannot be affected by such sale. The business of the court is not to draw into discussion various and conflicting rights and equities of incumbran-cers.. The property is divided cum mere. The true rule is no persons are to be made parties except those having a present interest in the premises.” • Freeman on Cotenancy and Partition,
As- has been shown, the court failed to determine and fix, before the sale of the land, the respective rights and interests of the parties in the property. That a decree of sale under such circumstances is erroneous is established by an abundance of authority. 17 Am. & Eng. Ency. Law, 748; 15 Ency. Pl. & Pr. 809; Stephens v. McCormick, 19 S. E. 743. However, the sale cannot be set aside for this error. The sale was confirmed without objection and there is no error in the decree of confirmation. Hence, section 8 of chapter 132 of the Code protects the title of the purchaser. While Johnson, the purchaser*, is a party to the suit, it does not appear that he, in any way, encouraged or sought to bring about, the sale of the land, and it cannot be said that he was the moving cause of the sale. The sale is not more beneficial to him than to his co-tenants and lie does not stand in the situation of a creditor who has caused the land to be sold for the satisfaction of his debt and purchased it at the sale. Although a defendant and one of the owners, he did not even file an answer in the partition suit. This being true, the principle announced in Martin v. Smith, 25 W. Va. 585; Dunfee v. Childs, 45 W. Va. 155; Buchanon v. Clark, 10 Grat. 164; Galpin v. Page, 18 Wall. 350, does not apply. In all those cases the purchasers whose titles were held not to be within the protection of the statute were persons who were benefitted by the erroneous decrees and who had been instrumental in procuring the sale. In Dunfee v. Childs, it is said: “Merely being a party would not alone disturb his purchase, but, if the decree goes to his benefit, it is otherwise. The same reason does not exist for protecting him as an innocent third person. He moves the proceeding.”
As the sale cannot be set asidej and the fund arising from the sale is still in the hands of the court, and the parties complaining of the error id the decree of sale miist now look to that fund alone, it would be useless to reverse the decree. Hpon such reversal, nothing could be done except to give them their interest 'in the proceeds of the sale and that can be done without a 'reversal of the decree. While the. decree is erroneous, it is not, under the circumstances, prejudicial.
For the reasons hereinbefore given, the decree setting aside the sale and confirmation and ordering the land to be resold,
Reversed. Remanded.