80 Va. 873 | Va. | 1885
delivered the opinion of the court.
James Paxton died testate, and his will was admitted to probate in the county of Botetourt, in 1866. His executors, on the 15th of November, 1866, sold one tract, “Five Forks,” of the testator’s real estate for $22,025, and the other tract-, “Soldiers’ Retreat,” for $13,000. The purchasers of the last named tract were his son, P. M. Paxton, and his daughter, Isabella'M. Paxton, afterwards Mrs. Stalnaker, who executed eighteen bonds for the purchase money, and received a conveyance, reserving a lien on the land to secure the purchase money represented by said bonds. They also purchased of the executors, personal property to the amount of $1691.47; and in this way they, on the 15th day of November, 1868, owed on these two accounts, to said executors, the sum of $16,378.83, of which $1712 was for the personalty.
It appears from a decree of the circuit court of Botetourt county, entered on the 28th day of October, 1868, in the suit of James Paxton’s executor against James Paxton’s heirs and others, that the share of Isabella M. Paxton in her father’s estate amounted to $5418.92; the share of P. M. Paxton to $6008.34; the share of J. T. Paxton, the appellant, to $1938.05; and the share of J. Vm. Gilmore, a grandson and legatee of the testator, to $2966.86; which sums had been decreed to them respectively, as of the 15th day of November, 1868, in the said suit of Paxton’s executor against Paxton’s heirs and others; and by the decree in which the executor, Glasgow,
Subsequently, by their deed, dated January 21st, 1869, the said Isabella, .who had intermarried with Albert G. Stalnaker, and her said husband, sold and conveyed to P. M. Paxton, her
Por the four deferred payments four bonds were executed by P. M. Paxton and J. T. Paxton, payable to A. G. Stalnaker. On three of these bonds judgments were afterwards obtained: on numbers two and three for the benefit of the appellees, Stuart and Thomas, and on number three for the benefit of W. J. Betterton, all of whom were assignees for value.
At February rules, 1873, Stuart and Thomas brought, in the circuit court of Botetourt county, a creditor’s suit against P. M. Paxton and others. This cause was regularly matured and set for hearing. By proceedings therein the liens on the lands of P. M. Paxton were ascertained by report of a commissioner,
At June rules, 1876, J. T. Paxton filed an original creditor’s bill against P. M. Paxton’s committee and others, in which he recites the proceedings just mentioned as having taken place in said suit of Stuart and Thomas; refers to the said bonds of P. M. Paxton and himself to Stalnaker, and to the judgments thereon, as being in large part unpaid, and as being valid liens on P. M. Paxton’s land, and as being paramount to any other claims against said land, being for the purchase money thereof; sets up the fact that his brother, P. M. Paxton, had become a lunatic, and gives as a reason for filing his bill, that, in addition to the debts which were liens on the lands of P. M. Paxton, there were outstanding debts against him, and that he desired them all to be ascertained aud settled. He also alleged, that in order to make a valid sale of P. M. Paxton’s land, it was necessary that all the persons, who wordd be the heirs at law of P. M. Paxton, if he were dead, should be parties to the suit, and all such were made parties, as well as W. P. Burks, Jr.,'the committee of P. M. Paxton, and prayed that the two causes be consolidated, and the lands sold, if necessary to the settlement of P. M. Paxton’s debts.
This cause was also regularly matured as to all the adult defendants, and a guardian ad litem assigned to the infant defendant, and his answer filed. On motion of J. T. Paxton the two causes were consolidated, and were again referred to a commissioner to ascertain and report the debts of P. M. Paxton, and their priorities, if any.
On the 25th day of October, 1876, J. 'Win. Gilmore, who had attained his majority, filed his petition asserting his legacy
A report of liens was returned by the commissioner, and the report was confirmed without exceptions, on the 24th of April, 1877, and a sale of P. M. Paxton’s land was decreed to satisfy the liens thereon. By the decree of that date, the report of the commissioner was in all respects confirmed, except-as to the claim of J. Wm. Gilmore, as to which the decree held the same valid for the sum of $3521.16, as of May 1st. 1877, and secured by the vendor’s lien retained by James Paxton’s executors in their deed to P. M. and Isabella Paxton, which lien had not been destroyed, and that that claim, and the claim for $118.22 found by the report in favor of John J. Paxton, receiver, for the benefit of J. G. Mackey, of John L. Taylor, receiver, etc., Starkey Robinson, guardian, etc., and of O. M. Reynolds, receiver, etc., respectively, are the first liens on the said land, and to be paid out of the proceeds of the sale thereof, ratably.
The judgments on the bonds assigned to Stuart and Thomas and to Betterton were declared to be the second liens thereon,, to be paid ratably: and the land was decreed to be sold. The special commissioners appointed to make the sale, reported that they had sold to J. Wm. Gilmore about 217 acres of “Soldiers’ Retreat,” at $18 per acre; to J. T. Paxton .229J acres, at $9 per acre; and to J. T. Paxton 21 acres, at $1 per acre.
Gilmore, after deducting the amount of his legacy, paid the balance of his purchase, which was but a small amount. J. T.
A decree was rendered May 31, 1882, referring the cause to a commissioner to enquire, among other things, what amount of money was coming to J. T. Paxton from the estate of his father, James Paxton, and what part thereof had been paid, and by whom and how paid, and what liens exist on “ Soldiers’ Betreat,” and also what payments, if any, J. T. Paxton had made on the 229-1 acres, part of “ Soldiers’ Betreat.”
In his report of May 29th, 1883, the commissioner stated, that the amount decreed to be coming to J. T. Paxton from his father’s estate was $2079.78, and that the executor, Glasgow, held his receipt in full therefor; that P. M. and Isabella Paxton had paid for “Soldiers’ Betreat,” as before stated in this opinion; and that he was advised of no other liens on said tract than those already reported. Depositions were taken and
On the 27th day of October, 1883, the circuit court again referred the cause to a master, to state an account showing the amount Isabella Stalnaker had paid on the purchase of “ Soldiers’ Retreat,” with other matters pertinent. The master’s report was filed May 23,1884. It shows only what has already been set forth, to wit: that she conveyed her half, $8189.16, of the indebtedness of herself and P. M. Paxton to James Pax-ton’s estate by receiving her share thereof, $5418.92, and securing the balance, $2770.24, by lien in favor of Glasgow, executor, on her moiety of “ Soldiers’ Retreat,” reserved in the deed of herself and husband to P. M. Paxton; and that P. M. Paxton arranged his half of said indebtedness with the shares of himself, J. T. Paxton, and J. Mm. Gilmore, and by paying the balance of $106.15. As pertinent- to the enquiry the master states, “that as P. M. Paxton took satisfaction of J. Mm. Gilmore’s legacy by the transfer of his own and his sister’s bonds, he took the same as a subsisting lien on the land, which the court has heretofore enforced by its decree; and that the same lien existed as to J. T. Paxton, if lie took assignment or transfer of bonds on P. hi. and Isabella Paxton. But if J. T. Paxton merely negotiated a loan to them of his share of his father’s estate, that transaction changes the nature of his claim.” J. T. Paxton excepted to this report. By its decree
¥e are clearly of opinion that the decree appealed from, and all the decrees entered in these causes since the death of P. M. Paxton, are erroneous and must be reversed, because at the time they were entered P. M. Paxton’s estate was not properly represented before the court.
We are also of opinion, that so far as the decree of April 24th, 1877, adjudges that J. Wm. Gilmore had a first lien on “ Soldiers’ Retreat,” to the amount of his legacy and interest, $3521.16, that decree is right, but that the same is erroneous in so far as it adjudges the claims which were reported in favor of John J. Paxton for J. G. Mackey, of John L. Taylor, receiver, of Starkie Robinson, guardian, &c., and of C. M. Reynolds, receiver, &c., to be also first liens on “Soldiers’ Retreat.” James Paxton’s executors sold that tract for $13,000, to P. M. and Isabella Paxton, and retained a lien for the purchase money. The surviving executor, Glasgow, accepted their .shares of the testator’s estate, and the shares of J. T. Paxton and J. Wm. Gilmore, and the $106.16, in satisfaction of the lien, and in effect released it. But in this transaction the interest of J. Wm. Gilmore, the ward of P. M. Paxton, was used by the
It is true, that in its decree of'October 29th, 1884, the circuit-court seems to recognize that such lien still subsists in favor of ,T. T. Paxton. The language, however, is in the past tense, and is consistent with the idea that J. T. Paxton had released the lien which he originally had on said land.
If the circuit court actually meant to decide that though J. T. Paxton still had a claim for the amount of his share • in his father’s estate, on the land for half of which the bonds of P. M. Paxton and himself had been executed to Stalnaker, yet that J. T. Paxton could not set off the amount of his said lien against said bonds in whose hands soever they might be, then in that respect the decree appealed from is erroneous. It is true, that by the way in which the master states the mode in
Therefore, the decree appealed from must be reversed and annulled, and the cause remanded to the circuit court with instructions to so amend the pleadings as to bring before the court the personal representative and heirs at law of P. M. Pax-ton, deceased, and to take steps to ascertain either by reference to a master, or by an issue out of chancery, whether or not J. T. Paxton assigned, or in any way parted with his said share of his father’s estate to P. M. Paxton, so as to extinguish his lien on “Soldiers’ Retreat” and convert it into a mere personal claim against P. M. Paxton. And if the circuit court shall ascertain that J. T. Paxton did not so extinguish his lien, then it shall allow the amount of the said lien to go as a sekoff against the judgments on the said bonds of P. M. and J. T. Paxton.
And it appearing that J. T. Paxton placed in the hands of J. H. H. Piggat, who was attorney for the assignees of the said bonds, certain claims on Bell, Echols and Catlet, the proceeds whereof were to be applied to the said bonds, the circuit court is directed to ascertain what amount thereof has been realized .and is applicable to the said bonds, and to cause the same to be applied thereto.
Por these reasons the said decree is reversed, with costs to
Decebe Reversed.