82 Va. 455 | Va. | 1886
delivered the opinion of the court.
This suit was instituted by John M. Fielder and his sister, Elnora Snellson, and her husband, against the administrator and heirs of Thomas Martin, deceased (Fielder and his sister claiming to have been wards of the said Thomas Martin), for the purpose of enforcing settlement in behalf of each of said wards, and of dividing, by sale or otherwise, a tract of land between said Martin’s heirs and the said complainants.
The only appellant is the said administrator of Thomas Martin, deceased, against whom the circuit court decreed in favor of each of the said complainants (on account of Martin’s indebtedness to them, respectively, as their guardian), for a sum less than $500, although these decrees together aggregate the sum of $639.79, as of January 1, 1885.
We are met, at the threshold, with the question of the jurisdiction of this court to review the decree of the circuit court in this case. The Constitution of Virginia, article VI., sec. 2, fixes five hundred dollars of value, exclusive of costs, as the minimum amount requisite to give this court jurisdiction to review a judgment or decree of a circuit court. The onus is upon the appellant or plaintiff in error to show, by the record, that the case is one of which the appellate court has jurisdiction. Harman v. City of Lynchburg, 33 Gratt. 40—citing 10 Peters R. 160.
Upon the merits of this case, as disclosed by the record, we are of the opinion that the decree of the circuit court appealed from is right and ought to be affirmed.
In the year 1857, John Bailey Matthews died, in the county of Kelson, intestate, possessed of personal estate and the owner in fee of a tract of land of 155 acres, lying mostly in the county of Albemarle. Thomas Martin qualified as his administrator at the May court, 1857. The said Matthews left five adult heirs, and two infant grandchildren—the children of a deceased daughter. Martin bought the interests or shares of the five adult heirs in the land (it adjoining the tract on which he
In February, 1859, Martin instituted a suit in the circuit court of Albemarle, and obtained a decree to sell the interest or share of the infant heirs in the land; and then neglected, if he did not, actually, interpose with his counsel (who was the commissioner of sale) to prevent its execution—he quietly holding and cultivating the whole tract as his own, as long as he lived, and transmitting it to the use and enjoyment of his family from his death up to the institution of this suit by these appellees in 1883, when they filed their bill for a partition of the land, and an account for rents and profits, and to enforce a settlement of Martin’s transactions as administrator of their grandfather, in all the period since his qualification as such in 1857.
The circuit court, in its decree, treated Martin as the quasi guardian of the infant heirs, and decreed against him to pay them their estimated rents, with compound interest during their minority, and thereafter at legal interest to the close of the master’s report in the cause.
“ If a stranger enters into and occupies an infant’s lands, he is compellable, at law, to render an account of rents and profits and will be chargeable as guardian or bailiff.” . Story’s Equity Juris., sec. 511.
In Schouler’s Dorn. Eel., sec. 326, speaking of quasi guardianship, it is said: “The general principle thus recognized is that any person who takes possession of an infant’s property, takes it in trust for the infant. Hence courts of equity will always protect the helpless in such cases by holding the person who acts as guardian strictly accountable.”
“ Whoever enters upon the estate of an infant is considered, in equity, as entering in the character of guardian; and after the infant comes of age he may, by bill in chancery, recover the mesne profits.” (Kent’s Comm., side page 229, note B.) See case of Van Epps v. Van Deusen, 4 Paige Ch. 64, same case as reported in 25 Amer. Dec. 516.
The case of Davis v. Harkness, 1 Gilman (Illinois), 173, was a suit by the children and heirs of Harkness against the administrator of their step-father for moneys received by him, which belonged to the estate of their father, to which they were entitled. The court treated the step-father as guardian, and treated the debt against his estate as a fiduciary debt, and' as a preferred debt in the administration of his estate. The court says: “Upon principle, too, as well as authority, should the infant be entitled to an account against him as guardian. It would be a strange rule of equity, indeed, if the infant were not as well protected against the violence of the wrong-doer,' as he is against the peculations of an appointed guardian. If he receive the money of an infant, and use it, he is estopped
It is objected that the decree appealed from was wholly against the administrator, when one or more of the heirs of Thomas Martin held the land after his death. The lands of Thomas Martin, including the land of these appellees, had been divided among his heirs. Martin having died intestate, his heirs are also his distributees, and are entitled to the personal estate in the hands of the administrator, as well as to the land, after paying debts, of which it does not appear there are any, 'other than what is due to these appellees.
If the court had decreed against the particular heir or heirs to whom the land of these appellees had been assigned in the partition, it would have been necessary, at the same time, to have decreed against the other heirs, in favor of the particular heir or heirs, for their contributive share or proportions' of the loss occasioned by the paramount title of these appellants. “A mutual implied warranty” is one of the incidents to partition
Martin, himself, obtained a decree for the sale of the land, in 1860; and the heirs are not before this court as appellants or appellees, and have not undertaken to gainsay the decree for sale. See Edmunds v. Scott, 78 Va. (3 Hansbrough, 720).
There is no error in the decree complained of, and the same is affirmed.
Decree affirmed.