77 Va. 600 | Va. | 1883
delivered the opinion of the court.
In many of its aspects this case is a very remarkable one. he appellants, the defendants below, demurred to the bill and also answered the same; and in the view taken by this court, while the case must be determined upon the demurrer, yet will, in order to a proper understanding of the conclusion at which the court has arrived, so far first consider the case on its merits, as to show that in no view could a different result be fairly arrived at. The facts and circumstances of the case and the law applicable thereto demand in either view a reversal of the decree of the court below.
David B. Hatcher, of Patrick county, died in April, lSSY,
Hot very long after the death of D. B. Hatcher, one H. W. Reynolds instituted a suit in equity against said administrator and administratrix and others for the specific execution of ,a
Pending said suit of Reynolds v. Hatcher’s administrators, &c., a portion of the heirs of the decedent instituted a suit in chancery in said circuit court against the said administrator and administratrix charging a devastavit; charging that the administrator’s bond was worthless; that he was proceeding to collect the amount of purchase money aforesaid due from said Reynolds for said land, and asking that said administrator, Daniel Gr. Hatcher, be restrained from collecting same, which restraining order was granted. Subsequently the defendant, Daniel- Gr. Hatcher, answered said bill, denying each and every material allegation therein, and especially denying that he had committed any devastavit, or had in anjr way wasted or misappropriated any of the assets which had come into his hands. In this suit an account was ordered and taken, the result of which was that the estate came out largely over $4,000 in debt to said administrator, Daniel Gr. Hatcher, a sum, too, largely in excess of the purchase price for said Reynolds land, bought by said Hatcher from Commissioner Penn in said first named suit. At the November term, 1877, of said circuit court, this cause came on again to be heard, together with said suit of Reynolds v. Hatcher’s representatives, when a decree was entered- confirming the account and report ascertaining said amount due from the estate to said-administrator, and directing Commissioner Penn to-surren'der to said purchaser, Daniel Gr. Hatcher, his purchase money bonds for said Reynolds land, and further directing said commissioner
But not so. On the 10th day of March, 1881, over three years after the final decree in said suit of Reynolds v. Hatcher’s representatives, dee., by leave of the judge of said circuit court, granted in vacation, said plaintiffs in the suit of Hatcher’s heirs v. Hatcher’s representatives, filed their hill of review, seeking to review, reverse and annul the settlement and decrees in both of said suits, notwithstanding the final decree in one of them, as before stated, had been rendered more than three years and could not by reason of the statutory limitation he reached by a hill of review. To this bill the defendants, the appellants, demurred and also, filed their answers.
After Commissioner Penn’s conveyance of the Reynolds land to Daniel G. Hatcher, and prior to the filing of said hill of review, certain creditors of said Hatcher, who had in the meantime : become involved, obtained liens against said land, and
These creditors of Daniel Gr. Hatcher were made parties defendant to said bill of review, filed their demurrer and answer thereto, and are represented as appellants here.
In the year 1860, said Margaret Hatcher, not in her fiduciary capacity, but in her individual right, together with others, her sureties, made a note on which a loan of $4,000 was obtained from one W. A. Caldwell, of North Carolina. This money was applied to the payment of a debt of $4,000 due from the estate of the decedent to John O. Staples, which debt was in the hands of the sheriff of Patrick, and then being pressed for payment. It is admitted in the bill of review that this was a valid subsisting debt, and that it was discharged with the money so borrowed, and that Daniel Gr. Hatcher, neither as administrator nor otherwise, had any previous knowledge of, or connection with the borrowing of this money. In 1861, said Margaret Hatcher, with the same parties as her sureties, borrowed the additional sum of $1,200 from one Israel Gr. Lash, also of the state of North Carolina, one thousand dollars of which was applied to the reduction of said Caldwell debt. With this transaction Daniel Gr. Hatcher had no connection whatever, he being at the time in the Confederate army. With the money thus borrowed the estate of D. B. Hatcher was relieved of $4,000 of unquestioned indebtedness; and Margaret Hatcher, with her sureties, had incurred a merely personal liability therefor, in no possible way connected with the estate of the decedent. Neither Caldwell nor Lash could make any charge against the estate for the money thus loaned on the personal credit of their said debtors.
Some nine or ten years later, when the slaves remaining, by common consent unappropriated to the payment of the debts of
In the first place, the bill seeks to review, reverse and annul the final decree in the suit of Reynolds v. Hatcher’s administrators, after the lapse of three years from the rendition of that decree, when the statute (Code 1873, chapter one hundred and seventy-five, section five,) expressly prohibits such a bill after the expiration of said period from the time of the rendition of the decree sought to be reviewed. Moreover, a-bill of review must state or exhibit to the court the proceedings in the cause in which the decree to be reviewed was rendered. Adams’ Equity, 792. In this case only the final decree is brought into the case, so that in the nature of things the court could not proceed intelligently to review the decree complained of even if the bill had been brought in good time.
Again, a bill of review founded, as in this.case, on the alleged occurrence or discovery of new matter, must not only be filed by leave of the court, but must be supported by affidavit satisfying the court that the new matter could.not, by reasonable diligence, have been discovered or used before the decree was made; and showing also the relevancy and materiality of such matter, and
The decree was as follows :
This day came again the parties by their counsel, and the
Decree reversed.