121 Va. 573 | Va. Ct. App. | 1917
delivered the opinion of the court.
On September 18, 1909, Patrick Hagan conveyed to T. G. Wells a tract of land and retained a vendor’s lien thereon
On March 15, 1911, T. G. Wells conveyed the same land to W. H. Roberts, who, as a part of the consideration therefor, assumed the payment of the money secured by the vendor’s lien retained in the former deed.
Subsequently, Patrick Hagan executed a general deed of trust to C. F. Hagan conveying to him what appears from the deed to have been a very large and valuable real and personal estate, with specific directions as to its management and distribution. Under the terms of this deed of trust, C. F. Hagan, as trustee, became the owner of the debt and lien above mentioned, with the right to enforce the same, and this suit was brought by him for that purpose. Wells did not appear. Roberts answered, alleging the insolvency of Wells, and defended upon the ground of alleged defects in the title to the land. The circuit court decreed a sale to enforce the lien, and Roberts appeals.
In Virginia, the rule is that to entitle a purchaser of real estate to relief in equity against the collection of the purchase money on the ground of a defective title, where, as here, the sale has been consummated by the execution and acceptance of a general warranty deed (without. other covenants), the title must be questioned by a suit either prosecuted or threatened, or it must be clearly shown that the title is defective. Ralston v. Miller, 3 Rand. (24 Va.) 44, 48, 15 Am. Dec. 704; Koger v. Kane, 5 Leigh (32 Va.) 607, 609; Morgan v. Glendy, 92 Va. 86, 89, 22 S. E. 854; Pack v. Whitaker, 110- Va. 122, 125, 65 S. E. 496.
Patrick Hagan’s claim to the land was derived from the heirs of Martha Holdway. It is conceded that she had a good title thereto, but the appellant contends that her interest therein does not satisfactorily appear to have ever been fully acquired by Hagan.
The uncertainty about the existence of the will, and about its provisions if it does exist, does not constitute such clear defect in the title as to afford the appellant any ground for relief against the payment of the purchase money. From all the indications to be derived from the references to the will in the record, and from the history of the title since the death of Mrs. Holdway, it would seem safe to assume that the provisions of her will, if she made one, were as alleged in the partition suit. Mrs. Holdway had been dead for more than ten years when this suit was brought — more than fourteen years when the decree complained of was rendered. This appears from the fact that some of her heirs conveyed to Hagan in 1902, which of course was after her death. During all the intervening period there has been no suggestion of any claim under a will adverse to those from whom Hagan claims title. The appellant, in his answer, states with emphasis that he did not know of any of the alleged defects in the title until July, 1912. This was more than a year after the date of his deed, and more than a year after the purchase money he had assumed to pay was due. If he had paid this money at maturity, he would have been, as an innocent purchaser, fully protected by section 2547-a of the Code, requiring that wills of real estate, as against such purchasers, must be recorded within seven years after the testator's death. Whether or not he would be so protected now, after having notice of the possibility of such a will, before paying the money, we need not stop to inquire, because under all the circumstances we do not think he has shown that the facts with regard to this alleged will constitute a clear defect in the title.
We pass now to the most serious ground upon which the title is questioned.
It is equally apparent that the sale of the Morefield interest was void. The commissioners appointed in the partition suit to make partition of the land, reported to the court that it would be impossible to lay off the small interest belonging to the Morefield children in such manner as to make it worth as much per acre as the land ought to sell for, and recommended to the court “that the interests of the said infants be sold before any further attempt to partition said land is made.” Thereupon the court appointed a commissioner to make sale of this undivided interest, which he did, and Hagan became the purchaser. This sale did not purport to be made in compliance with chapter 117 of the Code; and it was wholly lacking in the essential requisites of a valid sale under the partition statute, section 2564. The latter section provides that “when partition cannot be conveniently made, the entire subject may be allotted to any party who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case now pending or hereafter brought, in which partition cannot be conveniently made, if the interests of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be an infant or insane person, may order such sale, or such sale and allotment,” etc. In this instance, the court might, under proper proof and proceedings, have allotted the whole of the land to Hagan, requiring him to
Nor was there any authority to make this sale under that branch of the statute which provides for “an allotment of part and a sale of the residue.” Here, too, the sale must be made in the execution of a general partition scheme, in which all the parties are given equal consideration. Wherever there is a sale of a part and an allotment of the residue, the part allotted must be divided in kind, and the residue must be sold and the proceeds divided, the division in each case being made among all the parties in interest. Jackson v. Jackson, 110 Va. 393, 66 S. E. 721.
Inasmuch, therefore, as the sales of these two interests to Patrick Hagan were, in so far as the record before us discloses, null, and void, the defense offered to the instant suit by Roberts was good-to that extent, and should have been sustained.
The next question raised by the appellant in regard to the Hagan title rests upon the contention that two certain deeds, dated respectively December 2, 1902, and December 13, 1902, from sundry heirs of Mrs. Holdway to Patrick Hagan, are not in fact absolute conveyances, but are merely
It was further contained in appellant’s cross-bill, and in his petition for appeal, that certain judgments against his immediate grantor, T. G. Wells, constituted liens upon the land, entitling him to relief. The answer to this claim is twofold — first, that no lien or incumbrance created or suffered by Wells could prejudice Hagan’s prior lien for the purchase money, and, second, that the record satisfactorily discloses that the judgments in question had been satisfied before this suit was instituted.
The decree must be reversed, and the cause remanded, with directions to the circuit court to allow the appellee a reasonable time, to be prescribed by the court, to perfect the title as to the interests of Una Culbertson and the
Reversed.