130 Va. 548 | Va. | 1921
delivered the opinion of the court.
The question in this case is whether the appellant, Mrs. Annie G. Traylor, is entitled to be released from the purchase of certain real estate, sold and confirmed to her under a judicial sale. The lower court held that she was not so entitled, and thereupon she obtained this appeal.
The material facts are these: Mrs. Belle V. Atkinson had a complete record title to the lot known as 811 East Grace street, in the city of Richmond, subject to certain uncontested encumbrances not material here, and disposed of the same by will. This suit was brought in the Chancery Court of the city of Richmond by Ethel Walker Atkinson, in her own right and as administratrix e. t. a. of the estate of her mother Belle V. Atkinson, for a settlement of the estate and a partition sale of the lot. The bill was filed in October, 1919. On that date there was pending in the same court another suit wherein Lucy Claire Dudley, a daughter, and Henry Dudley, a grandson of the testatrix (the latter being under age and suing by next friend), were attacking the validity of the deed under which she claimed title to the lot. The bill in the present suit alleged that the suit of
On August 13,1920, Henry Dudley, who had then attained his majority, and Lucy Claire Dudley expressly waived their right of appeal by written agreement under seal; and furthermore, when this appeal was argued, the right of appeal in the Dudley suit was barred by the expiration of the statutory period of one year.
In the meantime, under a decree of sale in the instant case, the Grace street lot was, on February 25, 1920, sold at public auction, and the appellant, Mrs. Annie G. Traylor, offering the highest among a number of competitive bids, became the purchaser at the price of $42,500, payable all cash, or at the option of the purchaser, one-third cash, and the balance in six, twelve and eighteen months, with interest. The commissioners reported the sale to the court, and on March 1, 1920, a decree was entered confirming the sale, “subject to an examination of the title within ten days.”
It appears from the report of the special commissioners that on March 12, 1920, they met Mrs. Traylor, by appointment, at the office of Mr. Lea, the attorney who had been employed by her to examine the title, the object of this meeting on the part of the commissioners being to receive settlement from Mrs. Traylor in accordance with the decree of confirmation, and that they, on that occasion, were informed that Mrs. Traylor did not at that time have the
The foregoing facts with reference to the failure of Mrs. Traylor to comply with the terms of the sale were reported to the court, and a rule was issued against her to show cause why she should not be required to complete the settlement in conformity with her contract of purchase. In her answer to the rule she pointed out certain apparent objections to the title, but the allegations of the answer itself show that as to all of such defects she was fully protected, with the exception of the alleged cloud on the title occasioned by the possibility of an appeal from the decree of October 23, 1919, in the Dudley suit. This answer to the rule expressed a willingness to take and settle for the property as soon as the title was “free of all valid objections.”
Then followed a decree on the 29th of April, 1920, holding that the objections to the title (except as to two executed but unrecorded release deeds, which were thereby ordered to be recorded) were without merit, and ordering Mrs. Traylor forthwith to comply with her purchase. This decree, however, after reciting the fact that Mrs. Traylor had elected to take advantage of the credit terms allowed by the decree of sale, directed that “the purchaser’s note for the last and final one-third of the purchase money, being
Mrs. Traylor continued in default, and on May 14, 1920, the commissioners notified her counsel that unless she should make settlement in a few days they would ask the court for an order directing a resale of the property at her risk. Following this notice, she filed her petition asking to be released entirely from her purchase, and on May 26, 1920, the court entered a decree holding that there was no merit in the petition, and ordering a resale at her risk, unless she complied with the terms of her purchase within ten days from that date. This decree, however, before making these adjudications adverse to Mrs. Traylor, recited, “that full justice cannot be done and the whole controversy ended in this cause without the presence of Henry A. Dudley as a party,” and accordingly a guardian ad litem was appointed to defend his interests, reciting the appearance and answer of the said Dudley by his guardian ad litem, and the docketing and setting of the cause for hearing by consent as to him. It is admitted that the purpose of this provision, like that above referred to with reference to holding in abeyance a portion of the purchase money, was to protect Mrs. Traylor against a possible appeal from and reversal of the final decree in the Dudley suit.
Before coming to a .consideration of the present appeal upon its merits, we must advert to the motion of the appellees to dismiss the same on the ground that the only point
The court never undertakes to warrant the title to land sold under its decree, and a purchaser at a judicial sale buys at his own risk. The law is clearly stated, and with peculiarly appropriate application to the case at bar, by Judge Burks in Long v. Weller, 29 Gratt. (70 Va.) 347, 351, as follows :
“In Virginia, the maxim caveat emptor strictly applies to all judicial sales. The court undertakes to sell only the title, such as it is, of the parties to the suit, and it is the duty of the purchaser to ascertain for himself whether the title of these parties may not be impeached or superseded by*555 some other axid paramount title; and if he have just grounds of objection for want or defect of title, he should present them to the court before the confirmation of the report of sale. Ordinarily, objection after confirmation comes too late. Young’s Adm’r & Bowyer v. McClung et al. 9 Gratt. (50 Va.) 336, 358; Threlkeld v. Campbell, 2 Gratt. (43 Va.) 198; Daniel et al. v. Leitch, 13 Gratt. (54 Va.) 195, 212, 213; Watson v. Hoy et al. (not yet reported), Virginia Law Journal, August, 1877, p. 473, et seq., 28 Gratt. 698.
“These authorities would seem to be a sufficient answer to the pretension set up by the appellants in their answer to the rule for resale, to the effect that at the time they purchased the land and mill property, they believed that the right to the use of' the entire road mentioned in the answer was annexed or appurtenant as an easement to the property purchased by them, and that since the purchase they have discovered that a claim has been asserted by a third party, which is probably right, and will deprive them of the use of the road, and thus seriously impair the value of the property purchased by them.
“This is nothing but an objection for defect of title. The title to the easement is necessarily connected with the title to the land to which it is appurtenant; and whatever the purchasers believed, they must be taken to know that they could acquire by their purchase only the title that the court sold, which was the title, whatever it might be, of the parties to the suit. They purchased at their own risk, and cannot be heard to object for want or defect of title, at least after confirmation of the sale.”
In Berlin v. Melhorn, 75 Va. 639, 641, Judge Burks again says: “We think it may be safely laid down, as a generai rule, deducible from the authorities, that after a judicial sale has been absolutely confirmed by the court which ordered it, it will not be set aside except for fraud, mistake, surprise, or other cause for which equity would give like
Citations of authority to the same effect as the above might be indefinitely multiplied. We will add only these: Hickson v. Rucker, 77 Va. 135, 138; Kirk v. Oakey, 110 Va. 67, 68, 65 S. E. 528, 135 Am. St. Rep. 915; Headley v. Hoopengarner, 60 W. Va. 626, 55 S. E. 744; Boston’s Chy. Pr. 1185; 1 Hogg’s Eq. Proc., sec. 687; Lile’s Eq. Pl. & Pr., sec. 264; Burks’ Notes on Conveyancing. (1906), sec. 99. p. 118.
Of course this general rule is subject to the qualification that a purchaser, like a party to a private contract of sale, is entitled to relief on the ground of fraud or after-discovered mistake of material facts, but there is nothing in this case to bring it within that qualification.
The decree complained of is affirmed.
Affirmed.