85 Va. 227 | Va. | 1888
delivered the opinion of the court. .
The history of this controversy, as it is set forth in the trans-script before us, is briefly stated as follows: On the 6th day of June, 1875, William Peirce, of the county of Wythe, died, leaving the appellant, Emeline Peirce, and their five infant children, the other appellants, surviving him; the oldest child at that time being in his tenth year, and the youngest in his third year. His will was duly probated, by which he gave to his wife one-third of his property for life. The residue, including the remainder at the death of his wife, he divided equally among his children; and by his will appointed two of his friends, John C. Roper and David P. Graham, his executors, but the latter, who was his relative, alone qualified as executor. The real estate of the said William Peirce consisted of twenty-one hundred acres by a recent survey, and is very valuable. On the 31st day of January, 1876, seven months after the death of the said William Peirce, Graham, the said executor, instituted a suit in chancery, in which the widow and children were joined as plaintiffs, against William Gibboney and others, creditors of the estate of the said Peirce; the object of this suit being to sell the real estate to pay debts of the estate. An account was ordered in the cause in vacation, on the 4th day of August, 1876, of the transactions of the executor and of the debts of the estate. The latter appeared
At rules, on the first Monday in February, 1887, the said Emeline Peirce, the widow of William Peirce, and the five children, Isaac, William, David, Martha, and James Peirce, the last four being still infants, suing by their mother, the said Emeline Peirce, as their next friend, filed their bill of review in the cause against M. B. Tate, James S. Crockett, John W. Robinson, D. P. Graham, R. C. Hoffman, James Moore, “The Foster Falls Manufacturing Co.,” and W. C. Bullitt, in which, after setting forth the foregoing, they ask that the several decrees heretofore rendered in the cause, as stated above, may be reviewed, reversed, and annulled, and that the sale of the land already mentioned, to D. P. Graham and others, be set aside and annulled; and, these having effected a sale of this property to the said W. C. Bullitt at the price of $150,000, that this sale
The defendants demurred, and answered denying everything like bad faith, fraud and collusion; Graham claiming to have acted in all things for the good of the estate, and the purchasers claiming as bona fide and complete purchasers for value, and claiming the benefit of their purchase. Bullitt answered that he had purchased and paid $500, not $5,000, cash, upon condition that he could get a good title; but that he had not been satisfied with the title the “Foster Falls Manufacturing Co.” could make, and had demanded a deed from the individual members of the firm, with general warranty; that Graham, the executor, was a purchaser, as appeared by the decree directing a conveyance of the property; that the corporation had never been legally organized; that the purchase-money had never been paid, and the title was clouded by liens under the decrees in the cause; that the individual members of the corporation refused to make him a deed with general warranty, and he was unwilling to accept the warranty of the corporation, as that would practically cease to exist as soon as the deed was made and the purchase-money paid, as that would be at once divided among the individuals; that the sale was made within six months after the date of the rendition of the decree, and Graham was one of the purchasers, and that, in addition to all this, the filing of the bill in this cause had thrown such additional cloud upon the title as to put an end to all his efforts to get the title perfected; that, by the terms of his contract, he was entitled long since to the possession of the property, which has not been given him, and cannot now, for a
Depositions were taken on both sides to sustain their respective assertions and denials; and, on the 21st day of December, 1887, a decree’was rendered in the cause, dismissing the bill of the complainants; whereupon they applied for and obtained an appeal to this court.
The first assignment of error here is, that it was error to entertain the suit of the executor to sell the land of the heirs to pay the debts of the estate. This right is claimed for the executor by reason of the statute making real estate assets for the payment of debts in the same order as the personal estate. This statute, which was enacted in 1841-42, and which appears in the Code of 1849 as the third section of chapter 131, is to be found in the Code of Virginia at section 2665, and is as follows: “ All real estate of any person who may hereafter die, as to which he may die intestate, or which, though he die testate, shall not by his will be charged with or devised subject to the payment of his debts, or which may remain after satisfying the debts with which it may be so charged, or subject to which it may be so devised, shall be assets for the payment of the decedent’s debts, and all lawful demands against his estate, in the order in which the personal estate of a decedent is directed to be applied.” The next section (2666) provides how such assets shall be administered: “Such assets, so far as they may be in the hands of the personal representative of the decedent, may be administered by the court in the office whereof there is or may be filed, under the one hundred and twenty-first chapter, a report of the accounts of such representative, and of the debts and demands against the decedent’s estate, or they may in any case be administered by a court of equity.” This statute has frequently been under consideration in this court; but I find no case, and none has been cited, where the question has come up in this particular form, i. e., where an executor with no powers under the will to that end, has claimed the right to
But it is urged for the appellees that if the circuit court was without- jurisdiction, as is claimed by the appellants, to entertain this suit, that then, the decree being a nullity, it was no obstacle to, an action of ejectment against the purchasers ; and, the remedy being complete at law, the bill in this case must be dismissed. But this is not such a case. The circuit court had jurisdiction of the subject-matter of the suit, and of the parties, and its decree, while erroneous, was nevertheless binding on the parties until reversed for error.
But it is again insisted by the appellees that the sale in this case was a judicial sale, and that a fair purchaser is not bound to go through all the proceedings, and to look into all the circumstances, to see that the decree is right in all its parts. He has the right to presume the court has taken the necessary steps to investigate the right of the parties, and upon such investigation has properly decreed a sale. There can be no doubt that a purchaser is bound by the decree in the cause under which the sale is ordered to be made, and if he buys from a person not authorized to sell, or buys something not decreed to be sold, he can claim nothing under the decree. The decree under which the sale is made, confers, and at the same time limits and defines, the authority of the commissioner making the sale. The decree in this case was for a public sale; the sale was'made privately. The decree was for the sale of as much of fifteen hundred acres of land as was necessary to pay debts. How much was this, the decree did not show ; hut an account taken and reported in the case showed that the debts, principal and interest, amounted
But he insists that a bill of review will not lie because the final decree in the cause was rendered in December, 1883, and the bill of review was not filed until February, 1887, more than three years after the decree was rendered. But while the decree in December, 1883, might have been appealed from, it was not the final decree in the cause. That was not rendered until September, 18S6, and the bill of review was in time.
It is further insisted that the sale was made more than six months after the decree was rendered under which the sale was made, and the purchaser is protected. But the record'shows that the decree for the sale in the consolidated causes was rendered December, 1879, and the sale was made in March, 1880, less than six months afterwards.
The widow has made in her deposition a strong case for relief. She says that she was extremely averse to selling her share of the land which was her home, and was only induced to do so by the threat that the children’s land was under the hammer and
Richardson, J., dissented.
Decree reversed.