Gibson v. Burgess

| Va. | Dec 9, 1886

Lacy, J.,

delivered the opinion of the court.

This is an appeal from certain decrees of the circuit court of Culpeper county, rendered in this cause. The first assignment of error is that the circuit court of Culpeper decreed the sale of a tract of land lying in West Virginia, and the sale of the same being effected upon notice published in Culpeper county, and the same being made in said county. . That the courts of this State are without authority to sell and convey land beyond the jurisdiction of the State is well settled—too well settled and too recently decided here to require any argument. It is sufficient to cite the opinion of Richardson, Judge, in Poindexter v. Burwell, ante, p. 507, and the authorities there cited. See also the still more recent case of Wimer v. Wimer, post, opinion of Hinton, J. For the reasons assigned in these two opinions we are of opinion that the circuit court of Culpeper erred in the decrees complained of, and the same will be reversed and annulled.

The circuit court erred in confirming the report of Master Commissioner Shepherd stating the account of the debt, failing to credit the two negotiable notes given as a credit upon the debt and not returned to the maker; these amount to the sum of $750.20. The commissioner reports the amount of the bond and the amount of these notes, and says the obligor in the one and maker of the others “ does not owe both the bond and the notes besides, they should be surrendered to him.” But the creditor has a decree for his debt, and the notes remain in his possession, or have been parted with by him. The-effect of this is to make the appellant pay these notes twice. In this the decree of the circuit court is erroneous, and the case should be remanded for a new account to be taken of the said debt.

We do not regard the decree at all &s a consent decree, because it is endorsed by counsel “submitted' to us.” All that this means is that the decree has been shown to counsel on the other side. It does not follow that they have not or do not oppose it in every way they can.

The decrees are plainly erroneous, and will be reversed and annulled, and the cause remanded to the circuit court of Culpeper for further proceedings to be had therein in order to a final decree.

Decrees reversed.