1 Va. Dec. 551 | Va. | 1883
delivered the opinion of the court.
The bill was filed in the court below to subject the real estate of the defendant, “Patterson, to the satisfaction of cer
At the November term, 1877, a decree was entered •directing the receiver out of the proceeds of the sale to pay first the bank judgment, secondly the Haller judgment, and lastly the plaintiff’s judgments. The fund not being sufficient to pay all the judgments, the plaintiff at a subsequent term, not waiving her rights under previous decrees, filed a petition praying that the land be resold, and offering an upset bid for the same. The prayer of the petition was by decree of August term, 1878, denied, and at the May term, 1881, the cause coming on to be finally heard, and it appearing that the first deferred payment on the land had been paid to the plaintiff, as directed by the decree of the November term, 1874, it was decreed that she repay the amount so paid her to the receiver, and in default .thereof the clerk was directed to issue a fi. fa. in the name of the receiver, to be levied on the goods and chattels of her testator in her hands to be administered. And thereupon an appeal was allowed by this court.
Applying this test to the decrees in question, we are of opinion that neither is a final decree, but that both are interlocutory. The decree of November term, 1877, while it settled the principles of the cause, did not dispose of every question in the case, leaving nothing more for the court to do. It directed the proceeds of the sale of the land to be applied first to the satisfaction of the bank judgment, and then to the satisfaction of the Haller judgment, postponing to both the payment of the plaintiff’s judgments. But at the time that decree was pronounced, the first deferred installment of the purchase money had been paid to the plaintiff. And out of this fact arose an important question to be determined by the court, namely, whether the money so paid should be refunded by the plaintiff. Thus the case was not disposed of by that decree, nor by the decree of Au
Upon the merits, the court is of opinion that the decree of November term, 1877, is erroneous. It is well settled in Virginia that the maxim caveat enyptor strictly applies to-j udicial sales. The court undertakes to sell the title, such as it is, of the parties to the suit, and the purchaser acquires the title subject to all its defects. The rule necessarily applies to all judicial sales from the nature of the transaction, there being no one to whom recourse can be had for indemnity against any loss which may be sustained. Long et als. v. Weller’s ex’or et als., 29 Gratt. 347, and cases cited. In the present case it was not necessary to make the judgment creditors of the defendant, Patterson, parties to the suit. It is true that after an account is ordered in a creditor’s
There is no error in the decree refusing a resale of the land, at the instance of the plaintiff, as no sufficient ground therefor is shown. Belvin v. Melhorn, 75 Va. 639, and cases cited.
And as the final decree in the case is founded upon and was intended to give the relief contemplated by the decree of November term, 1877, it necessarily follows that it must fall with the reversal of that decree, and a decree will be entered accordingly.
Decree reversed.