152 Va. 842 | Va. | 1929
delivered the opinion of the court.
At the November term, 1927, the circuit court entered a decree confirming a sale of a tract of land containing eighty-three and three-eighths acres to the appellant, Stowe, as the highest bidder therefor at a judicial sale. The proceedings appear to have been in every respect regular. The commissioner of sale reported that Stowe having made the highest bid therefor, $3,200.00, at the auction sale, became the purchaser of the property, and that he had strictly complied with the requirements of the decree of sale. The commissioner also reported that after the day of the sale he had received an advance bid from J. W. Saunders of $3,600.00, which had been later increased to $4,000.00, and because of this upset bid the commissioner reported against the confirmation of the sale to Stowe.
Stowe excepted to this report, and filed the affidavits of eight persons fully supporting the contention that his bid of $3,200.00 was the fair and adequate market value of the property. Other affidavits, two in number, were filed, indicating that it was worth $4,000.00 or more.
Upon consideration of the issue thus raised, the court confirmed the sale to the appellant at $3,200.00, and directed the special commissioner to convey the property to Stowe upon his payment of the balance of the purchase price.
The administrator then indicated his purpose to appeal from that decree, but did not do so.
The appellant demurred to the bill upon three grounds: (1) That no error of law appeared upon the face of the record of the case sufficient to maintain the bill, and that the specific errors of law alleged are insufficient to support it; (2) that as to the alleged after-discovered evidence, it was admittedly based upon vague rumor and was irrelevant and immaterial. He also averred that it would be a wrong to him and cause hardship, sacrifice and loss, specifically, that his previous status could not be restored because he had been induced to buy from the same special commissioner (in another cause), on the same date, 208 acres of land adjacent to the eighty-three acre tract here involved, had complied with the terms of that purchase, and that he would not have bought that 208 acre tract unless he had believed that his bid’for this eighty-three acre tract would be accepted and the sale confirmed to Mm.
Upon tMs issue the trial court overruled Stowe’s demurrer to the bill of review, and required him to
It is assigned as error that the court erred in overruling the demurrer to the bill of review and in ordering a resale of the property.
That the original decree confirming the sale to Stowe and rejecting the upset bid was, as to him, a final decree, there can be no doubt. Unless and until legally reversed, that decree definitely determined all of his obligations and right's-, of which the court then had jurisdiction.
What is said in Johnson v. Merritt, 125 Va. 181, 99 S. E. 785, is quite applicable:
“This decree was certainly a final decree so far as it affected the rights of Merritt and Burton as purchasers of the land. They had paid the money into the hands of the officer of the court directed to collect it, and if it was thereafter lost, from any cause, the loss would fall upon the parties entitled to receive the money and not upon the purchasers of the land. Pulliam v. Tompkins, 99 Va. 602, 39 S. E. 221; 2 Barton Chy. 1092. Every question sought to be litigated by the bill had been decided, and the whole object of the litigation had been accomplished even down to the direction of the payment of the costs to the officers of the court. Nothing remained to be doné except for the commissioner of the court to pay out as directed by the decree of September, 1912, the funds shown to be in his hands. No one had any interest whatever
While a decree may be in part final and in part interlocutory, in the same cause, for and against the same parties who remain in court, in Virginia it has been often decided that a decree may be final as to one party and not as to another. Gills v. Gills, 126 Va. 526, 101 S. E. 900; Witty. Witt’s Executor, 146 Va. 256, 135 S. E. 681. The decree being final as to the purchaser, Stowe, it could not be corrected by bill of review, except for error of law apparent on the record, or for newly discovered evidence which is material and relevant.
This statement from 1 Hogg’s Equity Procedure, section 229, states the rule and its limitations: “The errors apparent on the face of a decree, constituting errors of law for which a bill of review will lie, must be such as appear in the decree itself, the opinion of the court, or from the pleadings in the cause, and exhibits filed therewith, or such as arise from facts either admitted by the pleadings or stated as facts settled, declared, or allowed by the decree; but if the errors
Among many pertinent cases in addition to those already cited which support and enforce this clearly stated rule, are: Rawlings v. Rawlings, 75 Va. 76; Thomson v. Brooke, 76 Va. 160; Hancock v. Hutcherson, 76 Va. 609; Valz v. Coiner, 110 Va. 469, 66 S. E. 730; Barnhardt v. Smith, 150 Va. 1, 142 S. E. 424; Core v. Strickler, 24 W. Va. 697; Wethered v. Elliott, 45 W. Va. 436, 32 S. E. 209; Dunfee v. Childs, 59 W. Va. 229, 53 S. E. 209; Kanawha Oil Co. v. Wenner, 71 W. Va. 477, 76 S. E. 893, 43 L. R. A. (N. S.) 559; Garten v. Layton, 76 W. Va. 63, 84 S. E. 1058; Marshall v. Nicolette Lumber Co., 76 W. Va. 531, 85 S. E. 723.
If then the court committed an error at the November term, 1927, in refusing to entertain the upset bid and in confirming the sale to the appellant, that error could only be corrected by appeal. It is not an error of law apparent upon the face of the proceedings, because, if indeed it was error, it was error based upon an erroneous conclusion upon disputed questions of fact.
It is here contended, however, upon the authority of Goolsby v. St. John, 25 Gratt. (66 Va.) 146, and under Rule VIII of this court, that this appeal brings up the whole record, and that this court can now review the November, 1927, decree and correct the alleged error in confirming the original sale to Stowe just as if an appeal had been taken by the appellee, Rison, from that decree.
The difference between that case and this is that the appeal from the bill of review there had been allowed in this court before the time for an appeal from the original decree had elapsed, whereas here the six months limitation to an appeal from that decree, prescribed by statute, had elapsed before this appeal was allowed. It is doubtless true that if this appeal had been allowed within six months from the date of the November, 1927, decree, cross-error might have been assigned under Rule VIII, and we might have considered the whole record. Because, however, of the lapse of time, the appellee cannot, on this appeal, now assign such an error in the original decree. It is a jurisdictional question. This court '.as no jurisdiction to correct any such error unless the jurisdiction of this court attaches within the statutory period, now fixed at six months from the date of the appealable decree.
We remark in passing that even if we felt free to ■consider the alleged error in the November, 1927, decree, we should doubtless, under the facts shown in this case, have held that there was no error in that decree.
Reversed.