44 W. Va. 270 | W. Va. | 1897
On the Sth day of October, 1885,. L. D. Chambers, as commissioner of school lands for Logan county, offered for sale at public auction, in pursuance of a decree of the circuit court of Logan county, three tracts of waste and unappropriated lands on Rum creek, in said county, one containing six hundred and sixty-one acres, one of one thousand two hundred and sixteen and two-thirds acres, and the other four hundred and forty acres, at which sale one A. C. Chambers became the purchaser thereof at one hundred dollars, eighty-five dollars and one hundred and twenty-five dollars, respectively, which sales were reported by said commissioner to said circuit court, and confirmed at the October term, 1886. One-third of the purchase money was paid in cash, and for the residue three notes were executed by said purchaser, with J. A. Peck and L. D. Chambers, Jr., as sureties. The money with which to make the cash payment was furnished by said Peck to A. C. Chambers, who, in consideration of said sum and fifty-five dollars to be paid by said Peck on the purchase money, sold one undivided half of said lands to said Peck. On November 27, 1886, and before said deferred installments were paid, said A. C. Chambers conveyed by deed to R. N. French all of his interest in said three tracts for a certain sum in cash and the assumption by French of the unpaid purchase money. J. A. Peck paid said sum of fifty-five dollars on the purchase money, and, as security for said Chambers, paid the residue of the purchase money. At September rules, 1887, said Peck filed his bill in equity against A. C. Chambers, L. D. Chambers, commissioner of school lands, and R. N. French, alleging these
The first error assigned and relied upon by the appellant is that “the court erred in holding that the return of service by a private person is conclusive, and cannot be impeached, and in not holding that the return of service of the summons on petitioner in this case was wholly false and untrue, and decreeing accordingly.” Was this error, under the circumstances of this case? Section 2 chapter, 124, Code, provides that “process to commence suits, including writs of scire facias, mandamus, quo warranto, certiorari, prohibition and the alias or other process, where the original is returned not executed, may also be served by any credible person, and the return of such person verified by his affidavit shall be evidence of the manner and time of service.” In the case we are considering the attack upon the return was not col
The second assignment of error claims that the court erred in refusing to vacate and annul the sale of an undivided half of said land, made by a special commissioner to the plaintiff, Peck, under the decree, and in holding that such sale was protected by section 8 of chapter 132, and in confirming and approving said sale. This Court in the case of Underwood v. Pack, 23 W. Va., 704, held that “a purchaser at a judicial saléis not protected by section 8 of
It being clear that in the case at bar the defendant French was not before the court at the time the sale of said land was directed, or when it was confirmed, the purchaser at the sale made under said decree was not protected, under section 8 of chapter 132 of the Code, and the circuit court erred in holding that he was thus protected. For these reasons the decree complained of must be reversed, and the cause remanded, with costs.
Reversed.