| Va. | Mar 30, 1899
delivered the opinion of the court.
These causes were heard together in the court below. The principal question presented arises in the second suit, and involves the right of certain judgments against Joseph H. Kelson to rest as liens upon a tract of land held by him under the following circumstances.
By deed dated September 17, 1888, T. J. Packwood and Louisa his wife conveyed to Peter Wise the land in question upon the following trusts:
(1.) To permit Joseph H. Kelson to possess the same as if seised in fee, so long as he performed his covenants and paid to Packwood, or his wife, if she survived him, an annuity of $2,400 payable semi-annually.
(2.) Hpon the death of both the grantors, to convey the land to Joseph H. Kelson, if he had performed his'covenants.
(3.) To re-convey the land to Packwood, or to his wife if she survive him, upon default, of said Kelson continuing for ten days, in the payment of any semi-annual instalment of said annuity.
Joseph H. Kelson paid the annuity provided for in this deed until after the death of T. J. Packwood which occurred in December, 1891, and filed his bill in March, 1893, against Louisa Packwood charging that he had recently discovered that she had procured the contract on her part by fraud and misrepresentation
To this bill Louisa Packwood filed her answer asking that it bo treated as a cross-bill, denying the charge of fraud and misrepresentation as to her age, and charging that Joseph H. Nelson was in default in paying the annuity provided for in the deed, and on that ground praying for a rescission of the contract, and that the trustee should be directed, in pursuance of the terms and conditions thereof, to re-convey the land to her.
On the 16th of November, 1893, the cause came on to be heard upon the pleadings, the depositions of witnesses and exhibits, and by consent of parties the court entered a decree rescinding, setting aside, and annulling the contract and deed in question, and restoring the parties to their original status by requiring Joseph H. Nelson and wife to unite with the trustee in a deed with special warranty of title re-conveying the land to Louisa Packwood upon tire terms that she should pay back all moneys paid by Nelson under the contract subject to a credit for the rents and profits of the land during his occupancy thereof.
The evidence taken in that case is not copied into the record before us. It is, however, to be presumed from the pleadings therein, and the character of the decree entered, that the fraud and misrepresentation charged in the bill was established; but it is immaterial whether the contract and deed were set aside and annulled because of the fraud of Mrs. Packwood, or on account of the default of Nelson in paying the annuity. The result is the same in either ease. By the terms of the contract Nelson was to have no interest in the land if he failed to pay the annuity. The effect of the decree, rescinding the contract, was to restore the parties to their original position, and under such circum
The sole object of the last named suit of “Maryland Life Ins. Co. v. Nelson & als.” being to subject the land in question, as the last aliened by Joseph H. Nelson, to the payment of the judgments against him, and that purpose having failed, for the reason stated that said Nelson had no interest therein to which said judgments could attach as liens, there was no necessity to retain that cause longer on the docket, and it should have been dismissed.
It is further assigned as error that the proceeds of the sale made by A. D. Payne, trustee, under the deed given to secure a debt of $1,000 to Lewis Porter, were misapplied in being appropriated to the payment of that debt, instead of to the satisfaction of a prior lien, evidenced by a decree, in favor of IT. E. Garden, commissioner; it being contended that the estate of A. D. Payne, trustee, and the estate of Lewis Porter should be made to account for the proceeds of that sale so far as the Porter debt was discharged thereby.
There is no merit in this contention. The deed of trust to secure Lewis Porter was executed several years before this suit was instituted by a sale of the land mentioned therein to O. ÜML Iliner, and' nearly the whole of the purchase money was paid at the time and properly applied in paying the costs of executing the trust, and satisfying the debt which the deed vtes given to secure. A. D. Payne died before this suit was brought, and his executrix was made a party for the purpose of having a settlement of his accounts as trustee. That settlement showed a balance in the hands of the executrix of $113.19 which was directed by the decree complained of to be applied to the II. E. Garden lien. The trustee faithfully executed the trust reposed in him, and properly disbursed the fund that came to his hands, and we fail to perceive upon what principle his estate can be held responsible for the decree in favor of H. E. Garden.
For these reasons the decree appealed from must be reversed, and the cause remanded for further proceedings to be had therein in accordance with the views expressed in this opinion.
Reversed.