83 Va. 715 | Va. | 1887
delivered the opinion of the court.
In February, 1879, the appellee, Long, and others, judgment lien creditors of Joseph B. Strayer, filed their bill in behalf of themselves, and all other lien creditors of said Strayer who should come in and contribute their share of the costs of the suit against said Strayer and his wife, seeking to subject the real estate of the said Strayer to their liens, and to set aside a conveyance made by him to a trustee, of a part of his real estate for the benefit of his said wife and her children. And the said circuit court having rendered two decrees, one on the eleventh day of January, 1881, and the other on the sixth day of April of the same year, by which the said Strayer and wife considered themselves aggrieved, an appeal was taken to this court, and at the September term, 1883, of this court both of said decrees were reversed, and a decree rendered here on the seventeenth day of October, 1883, which was ordered to be and was certified down to the said circuit court of Shenandoah county. The reasons for this decree were stated in writing by Judge Hinton, and filed and preserved with the records of this court, and no further notice will be taken of the said decrees here.
The cause coming on further to be considered in the said
The first assignment of error here, now, is that the decree of this court, rendered October 17, 1883, prescribing the order of time in which the several tracts of land should be sold, has been disregarded. It was decreed in this court as follows: “The court is of opinion that if the said deed of settlement shall hereafter be held to be invalid, the-land thereby conveyed, and known as the bStrickier Farm/ must, to the extent of said Joseph B. Stray er’s interest therein, be subjected to the liens of the judgment creditors before any of the other lands of the defendants can be sold for that purpose.” The circuit court of Shenandoah county, in the decree complained of, decreed the sale of all the lands of the defendant in the decree directing the said “Strickler Farm” to be sold, after directing the sale of all the others, thus reversing exactly the order of sale as prescribed by this court in its decree of October 17, 1883. It will not be denied that the circuit court of Shenandoah is bound by the decree of this court, and must obey it, whether the same meet with its approval or not, and entirely without reference to the question whether the reasoning of this court is satisfactory to that court or altogether otherwise; and we reverse the decree of that court for that
The second assignment of error is as to the action of the-court in overruling the second exception of the, defendants to the commissioner’s report. . That is, that no trustee was in existence when the accounts were taken under the decree of the January term, 1885, and no trustee when the decree was rendered—the trustee, Bodes, having died. The circuit court overruled this exception, upon the ground that the cause had been revived against the administrator of said Bodes, trustee, at the January term, 1885, who had, it is contended, all the rights, powers, and duties of thé trustee himself. Section 9, chapter 174, V. 0., provides that the-personal representative of a sole or surviving trustee shall execute the trust, or so much thereof as remained unexecuted at the death of such trustee (whether the trust-subject be real or personal estate), unless the instrument creating the trust otherwise directs, or some other trustee
The next assignment of error is that the court overruled the third exception to the commissioner’s report, which was upon the ground that the guardian ad litem was not notified of the taking of the accounts. Publication having been substituted by the court in lieu of personal service, the names of the infants being inserted in the publication, the guardian ad litem not being named therein, nor otherwise served with notice, the circuit court held the notice sufficient, and that no service on the guardian ad litem was necessary. The appointment of guardians ad litem, says Mr. Coke, is incident to every court. By the provisions of our law the courts of equity are empowered to appoint guardians ad litem, whether the infant has been served with notice or not, and to compel the person so appointed to act. But he is not liable to costs, and is to be allowed all reasonable charges, to be paid by the party at whose motion he was appointed, and to be taxed in the bill of
The fifth exception, and the next question to be considered, is as to the proper charges to be made against Allen and Newman, respectively, the purchasers, under the decree appealed from in the first appeal, of the two tracts of land then directed to be sold for the use and occupation of the said lands. After an appeal had been allowed in this court to the decree ordering the sale of these two tracts of land the commissioners appointed by the court proceeded to sell these lands and Allen and Newman became the purchasers, but the sale was never confirmed by the court, and the decree directing the sale of these lands was afterwards annulled by the decree of this court. They,
The sixth exception is as to the failure of the commissioner to settle an account of the transactions of the receivers, Kagey and Miller, for the time they held possession of the lands of the defendant. These settlements should be completed for the full time that the receivers had possession of this real estate, and it was error to decree a sale of defendant’s lands to pay debts before this amount had been fully ascertained and credited on the debts.
The seventh exception is as to the failure of the com
The next assignment of error is as to the allowance of ten per centum interest on the Long debt. The contract is for ten per centum per annum, which was a legal rat¿ of interest in this State at that time, if expressly contracted for. But it is argued that in this case the court should reduce the rate of interest to six per centum from the time when the lands of the defendant were taken out of his control and put in the hands of a receiver of the court,, thus depriving him of the means of paying the debt. But the theory of- the law is that he is entitled to have the proceeds of these lands, at their utmost, applied for his benefit to the credit of these debts, and they cannot be said to have been taken from him in any other sense. The defendant is entitled to hold the receivers to a strict accountability for the value of his lands while in their control, and to have the annual value of the same applied to the debts contracted by him; and this will be done. But he is bound by his contract as he madq it, the same not appearing to be unlawful, nor otherwise invalid. The courts cannot make another contract for the parties. This question is concluded in this court by the decision in Cecil and Perry v. Hicks, 29 Gratt. 1, and the circuit court did not err in so deciding.
As to the validity of the settlement upon Mrs. Strayer, the court will not consider that question at this time. Whether it is excessive or not cannot be determined with any degree of accuracy in the present state of the accounts. The errors are so numerous and so considerable in amount that the case will be remanded to the circuit court of
The court is therefore of opinion to reverse the decree complained of and to remand the cause to the said circuit court of Shenandoah county for further proceedings in accordance with the foregoing views.
Decree reversed.