111 Va. 423 | Va. | 1910
delivered the opinion of the court.
This appeal by James M. Kavanaugh and Joseph V. Kavanaugh is from a decree confirming a judicial sale of improved property in the town of Harrisonburg, known as the “Shacklett Property,' at which sale the appellants became the purchasers for the price of $38,000.
The ground of objection to confirmation of the sale (which was made under a decree in the case of Samuel Shacklett v. Buford G. Shacklett's Admr., &c.) is that the title to the property is defective, and that the court cannot confer a marketable title on the purchasers.
Appellants, to sustain their contention, vouch the record in the case of Nannie R. Shacklett v. Frances L. Roller, etc., from which it appears that Henry Shacklett died testate in the year 1898, survived by his widow, Nannie R. Shacklett, and two children, Fannie E. Shacklett and Buford G. Shacklett, and two grand-children, Frances L. Roller and Margaret S. Roller. Henry Shacklett died seized of considerable real estate, including the property in controversy, which he'devised subject to the rights of his widow, to his children and grandchildren. The will first provided an annuity of $800 for the widow, but afterwards, by codicil, -testator declared, that “Instead of legacies to my wife, I desire she may have just what the law allows her — which I believe is one-third of my estate.”
In 1899, the widow filed her bill against the devisees for the recovery of her dower. Though she expresses the opinion that dower cannot be allotted to her in kind without prejudice to the rights of others, the bill prays “that due ascertainment
The contention is not sound, that the decree of sale of the lands whereof Henry Shaeklett died seized is a nullity. If it were conceded that Nannie R. Shaeklett took her interest in the real estate of her deceased husband by operation of law as doweress, and not by purchase as a devisee under his will, still she had the xdght to file her bill in equity to recover dower. Va. Code, 1904, sec. 2276. And the jurisdiction of the court having attached for that purpose, was not affected by the circxxmstaxxce that the bill may have prayed for relief to which she was not entitled. The correctixess of the general proposition, that a coxxrt of equity cannot sell the lands of aix infant at the suit of a doweress to commute her dower therein, may be admitted. Nevertheless, the Virginia statute on the subject of partitions makes full provision for such relief at the suit of a party entitled to compel partition, where partition in kind cannot be conveniently made. Va. Code, 1904, sec. 2566. That was the manifest purpose of the cxvoss-bill of Buford G. Shacklett. The court of equity had already acquired jurisdiction of the parties and the sxibject matter iix the suit to recover dower, and the object of the cross-bill was to enable the devisees to obtain relief, with respect to lands acquired by them under the testator’s will, to which they were plainly entitled but which could not be granted xxnder the original bill. That is one of the ordinary functions of a cross-bill. The cross bill was regularly matured as to the infant defendants, and they are, therefore, bound by the proceedings and decrees.
It may be conceded, moreover, for the purposes of this discussion, that counsel for the adult defendants, in the absence of special authority, could not apirear and waive process on the cross-bill; yet, those defendants would clearly be estopped by subsequent conduct from taking advantage of such irregularity, even in that ease. The record conclusively shows that personally and by counsel they participated in the litigation from commencement to conclusion. After the sale, when put on terms by the court, they signed the agreement of November 10, 1900, consenting that the widow should receive comxnuted dower out of the proceeds; and, finally, they accepted the avails of the litigation, their full share of the purchase price of the lands sold. The sale was made more than ten years ago, the infant defendants haim long since come of age, and there is not a suggestion of purpose on the part of any devisee of Henry Shacldett to question the validity of Buford G. Shacklett’s title, to the “Shacklett Property.”
In these cix-cumstances, the decree of the circuit court, confirming the sale to the appellants, was plainly right and must be affirmed.
Afirmed.