81 Va. 533 | Va. | 1886
delivered the opinion of the court.
These are respectively appeals from decrees of the circuit court of Amherst county, one of which was rendered on the 17th day of October, 1884, in the cause therein pending of Tapscott’s Adm’r v. Shelton et als., and was a decree against the receiver therein, John B. Robertson, the appellant in the first of these causes. The other decree appealed from was rendered on the 17th day of April, 1885, in the second of these causes, entitled John B. Robertson et als. v. Charles M. Watts et als. Both of these suits have grown out of the said suit of Tapscott’s Adm’r v. Shelton et als. The facts and circumstances, so far as necessary to a proper understanding of the questions here involved, are these: David EL Tapscott died intestate in the year 1885, and shortly thereafter the suit of
Although the proper and n¿cessary accounts were ordered in the cause, nothing seems to have been done further until the year 1867, when J. B. Robertson, the appellant in the first of these causes, was appointed receiver in said cause of Tapscott’s Adm’r v. Shelton et als. In the meantime Jesse M. Watts, the purchaser of said house and lot, had died, leaving $1,292 of the purchase money due from him therefor unpaid. In the year 1860 Charles M. Watts, the brother, and one of the heirs-at-law, of Jesse M. Watts, sold said house and lot to the appellant, John B. Robertson and A. F. Robertson at the price of $1,500, and they executed to said Charles M. Watts, their three bonds therefor, with S. F. Robertson as surety; and at the same time, October 16, 1860, said Charles M. Watts and wife, by deeds with covenants of general warranty, conveyed said house and lot to said John B. and A. F. Robertson, free of all incumbrances, the concluding clause in said deed being in these words: “ And the said Watts binds himself hereby to perfect the outstanding title of said house and lot in himself, and guarantees the same to said Robertson.” Afterwards, to-wit: on the 1st day of October, 1862, A. F. Robertson sold his interest in said house and lot to John B. Robertson, the latter thus becoming the sole beneficiary of
Many years having passed since the sale of the real estate of D. H. Tapscott, and those entitled to the proceeds not having received the same, a special commissioner was appointed to look into the accounts and transactions of said receiver, John B. Robertson, in the case of Tapscott’s Administrator v. Shelton and als. The special commissioner, Robert M. Brown, returned his report showing that there was in the hands or under the control of John B. Robertson, receiver, and for which he was chargeable, principal and interest, as of the 15th day of April, 1883, the sum of $10,000 for distribution, after leaving in said receiver’s hands the sum of $995.34 to meet any outstanding debts or charges against the intestate’s estate; said sum of $10,000 being made up of $3,068.59 deposited by said receiver in the First National Bank of Lynchburg, as per certificate of deposit dated 12th of May, 1876, and other sums which had gone into said receiver’s hands, as appeared by previous reports of the receiver himself.
Of the $10,000 thus for distribution $2,407.72 was reported by the special commissioner as distributable to two first-class or ¡referred debts ; and the residue, $7,592.28, to second-class creditors as designated in the report of said special commissioner. In this report the commissioner throughout treats John B. Robertson as the real purchaser of the house and lot at Amherst Courthouse; and charges him, as one of the items, making up said sum for distribution, with $1,292, the amount
On the 12th day of April, 1883, the cause of Tapscott’s Administrator v. Shelton was heard on the papers formerly read, the report of Special Commissioner Brown, and the exceptions thereto, and upon the reports of said receiver, John B. Robertson ; and the court, not then passing upon said exceptions, or upon the reports of said receiver, at his instance, referred the same back to Commissioner Brown, but then entered a decree in all other respects confirming the said special commissioners report, and directing said receiver, John B. Robertson, to withdraw from the papers said certificate of deposit, collect the same, and out of the proceeds and the other funds reported in his hands, pay to Henry Loving, executor, of John Thompson, junior, one of the creditors of the intestate, Tapscott, the sum of $2,022.43, with interest from the 15th day of April, 1883, and to the several 'Other creditors, in the report mentioned, the sums respectively reported in their favor. Said receiver did not comply with the terms of this decree, and it became necessary to take other steps necessary to secure the proper distribution of the fund which had remained for so many years in the hands of the receiver.
On the 12th day of April, 1884, said receiver (Robertson) being still in default, a decree was entered in said cause in which this language occurs: “Upon consideration whereof, upon the motion of the parties (by counsel) entitled to the
At the October term, 1884, John B. Robertson made answer to the rule, which had issued against him as receiver, under the decree of April term, 1884, in the case of Tapscott’s Adm’r v. Shelton and als. Briefly stated, his answer was that he had paid to Thompson’s executor, as directed by said decree of April, 1884, the sum of $997.12, in part of the sum directed to be paid, and that the balance then due chiefly represented the debt due by Jesse M. Watts to the fund in Tapscott v. Shelton for the purchase of the house and lot at Amherst Courthouse, which was erroneously charged to him (Robertson) as receiver in said cause, and the payment of which had been enjoined, and that the injunction suit was then pending in said circuit court. And the answer to the said rule concludes by insisting that while said injunction is pending, and until said Watts’ debt should come into the hands of said Robertson, receiver, it would be inequitable to enforce against him as receiver in said cause, by award of execution or otherwise, the payment of the aforesaid balance due said Thompson’s executor, except as to the excess over the amount of the Watts’ debt. And he refers to said bill of injunction as part of his answer. At the same term (October, 1884,) a decree was entered in said cause of Tapscott v. Shelton, modifying the former decree of distribution by crediting said receiver with the $997.12 paid to Thompson’s executor, and by deducting from $7,592.28— the amount due and distributable to second-class creditors— the sum of $3,416.48, theretofore charged by the report of Special Commissioner Brown and by two previous decrees treated
We come now to state briefly the circumstances which gave rise to the second of these causes—that of John B. Robertson and als. v. Charles M. Watts and als., the injunction granted in which has already been referred, to.
It seems that A. F. Robertson, who, with John B. Robertson, was a joint purchaser of the house and lot from Charles M. Watts, and their surety, Sarah F. Robertson, in the purchase-money bonds to said Watts, had died; and John B. Robertson, the sole owner of the house and lot, and who, of all of them, is alone interested, brought this injunction suit in the name of himself and W. B. Robertson, executors of A. F. Robertson, deceased, and in his name as administrator of Sarah F. Robertson, deceased, and in his name as surviving partner of A. F. and John B. Robertson, and in his own right against Charles M. Watts and numerous others, some of whom were residents, but a large number of them non-residents.
The bill sets forth the purchase by John B. and A. F. Robertson of the house and lot at Amherst Courthouse from ChasM. Watts, which had been previously purchased by Jesse M. Watts at a judicial sale under a decree in the case of Tapscott’s Administrator v. Shelton and als., and alleges that the bonds executed for the purchase money to Charles M. Watts, were by him assigned to the then receiver (Tinsley), in the case of Tapscott v. Shelton, and that judgment at law was afterwards recov
We are clearly of opinion that the appeal in each of these cases is utterly without merit. In fact, whilst the complications attempted to be injected into the plain suit of Tapscott’s Administrator v. Shelton and als., brought to administer the decedent’s estate in equity, are such as would challenge the most studied efforts at expertness in the delay of justice,- yet a full and fair statement of all the facts and circumstances is amply sufficient, without more, to refute every contention of the appellants.
The two causes are necessarily incapable of convenient and satisfactory treatment except in one opinion. The manifest tendency of the contention on the part of the appellants in both cases is to bring about almost endless confusion and delay in the administration of D. H. Tapscott’s estate (already most unreasonably delayed without any apparent just cause),- by making the case of Tapscott’s Administrator v. Shelton and als., the common receptacle for the settlement of many matters, not only not germane, but wholly disconnected with and foreign thereto.
We have seen that the first of these cases originated in the
Not only did John B. Robertson have notice of this decree, but he approved it by his endorsement thereon before it was entered. Plere, for the second time, we see John B. Robertson not only standing by without objection when judicially treated as the purchaser of this house and lot, and in default as to the payment of the balance of the purchase money due by him, but this time deliberately endorsing his approval of the decree over his own signature. Nevertheless, he now objects to this decree on the ground that the $3,416.48 is the debt of Jesse M. Watts, erroneously charged to him (Robertson) by Commissioner Brown; erroneously decreed against him by the decree of April, 1883, and because he alone had notice of the decree of April, 1884, when the heirs of Jesse M. Watts should have been before the court. It cannot be necessary to adduce arguments and authorities to repel such a pretension. His acquiescence in and approval of the proceedings above referred to, estop him. And as to the heirs of Jesse M. Watts, in respect to whom we make no decision, they are not here complaining, and the appellant, Robertson, cannot be heard to complain for them.
We come now to the October term, 1884, when the appellant filed his answer to the rule before referred to, and when the decree was entered, in Tapscott v. Shelton, appealed from. Before filing that answer, John B. Robertson and others, the appellants in the second of these causes, had obtained the injunction aforesaid, stopping the sale of the house and lot, then advertised for sale under the decree of April, 1884, to which said John B. Robertson had assented. Now what does said answer to the rule show? It shows, and only shows, that said Robertson, as receiver, had paid under the decree of April, 1883, on the amount decreed in favor of John Thompson, Jr.
It is perfectly plain that there is no error in said decree of October 17, 1884, in the case of Tapscott’s Adm’r v. Shelton and als., and the same must be affirmed.
As to the second of these cases, it is equally plain that there is no error in the decree complained of. Much that has been said in respect to the preceding case of Robertson v. Tapscott’s Adm’r and als. applies with equal force to the case of Robertson and others v. Watts and als.
The question here presented is a narrow one, and is really the only substantial question connected with this litigation, and that question is as to the validity of the decree of the 17th of April, 1885, dissolving the injunction theretofore awarded, and decreeing a resale of the house and lot at Amherst Courthouse, unless John B. Robertson should, within the prescribed time, pay the said sum of $3,416.48, being the balance due by him on said property, with interest on $1,292, the principal thereof, from the 15th day of April, 1883.
The appellants’ first and second assignments of error to the decree of April 17, 1885, may be treated as one. They are (1), that the court erred in admitting J. Thompson Brown, commissioner of sale, as a defendant to the bill; and (2), in refusing to grant a continuance of the cause when it permitted
The appellants’third and fourth assignments together amount to this: That the court erred in dissolving the injunction and
All of these utterly untenable claims flow from the groundless insistence in the bill, plainly at war with all the previous acts of Jno. B. Robertson in connection with this property, that the decree in Tapscott’s Administrator v. Shelton and als., of April, 1884, as well as the decree now under review, were decrees to enforce against Jno. B. and A. F. Robertson and their surety» Sarah F. Robertson, the judgment alleged to have been recovered in the name of Chas. M. Watts, for the benefit of the administrator and creditors of D. H. Tapscott, against said Jno. B., A. F. and Sarah F. Robertson, on the bond executed to Chas. M. Watts by them. This contention, so far from being sustained by the record, is wholly at variance with anything therein contained. The answer of Special Commissioner Brown expressly denies the allegation in the bill that Watts assigned said bonds to the receiver in Tapscott v. Shelton, as collateral security for the balance of purchase money due from Jesse M. Watts, and there is not in the record an intimation that such was the fact, or that those decrees were rendered to enforce said judgment. On the contrary, the sum expressly charged by the commissioner, and! decreed by the court against Jno. B. Robertson, was the amount of Jesse M. Watts’ two bonds—$1,292, which, with interest to April 15th, 1883, amounted to $3,416.48—and not the amount contracted to be paid by Jno. B. and A. F. Robertson to Chas. M. Watts. This is demonstrable by a very simple calculation. Jno. B. and A. F. Robertson purchased from Chas. M. Watts, January 1st,
Under these circumstances, the whole matter is at last .narrowed to the simple enquiry, Was the injunction properly dissolved? Jno. B. and A. F. Robertson purchased from Chas. M. Watts, one of the heirs-at-law !of Jesse M. Watts, and took his conveyance, with a covenant binding him to get in the outstanding title and guarantee it to them. A. F. Robertson sold and conveyed his interest in the purchase to Jno. B. Robertson, who put valuable improvements on the property, and has occupied and used it as his own for some twenty-five years. It is obvious that, except in the event of the insolvency of Jno. B. Robertson, which is not suggested, neither A. F. Robertson nor Sarah F. Robertson, nor their estates, could have any interest in the matter, or be in any way affected. It is evident, therefore, that as to their representatives the injunction was, at the start, improperly granted. And the same is true as to Jno. B. Robertson, he having, by his purchase and deed from Chas. M. Watts, assumed the position of substituted purchaser in place of Jesse M. Watts, deceased, and having been, in effect, recognized as such by the court. There can be no question, then, that the injunction was properly dissolved. This being so, it follows that the decree of April 17th, 1885, directing a resale was right and proper. There is no error in the decree in either case, and both must be affirmed, with costs to the appellees respectively.
Decree affirmed in both cases.