22 Gratt. 493 | Va. | 1872
delivered the opinion of the court.
The object of this suit is to annul a decree in another suit, the sale made under or confirmed by it and any conveyance which may have been executed in pursuance of said decree.
A decree of a court of competent jurisdiction, in a suit between proper parties, is valid and conclusive until reversed on some proper proceeding in the same suit and the same court, or on appeal to an appellate court; unless there be some sufficient ground of fraud or surprise to entitle the injured party to relief in some other suit.
If the decree in controversy in this case be void, as contended by the appellants, where was the difficulty in their obtaining relief by an action at law ? If they had an adequate remedy at law, as it seems they had if their pretensions be well founded, then they are entitled to no relief in equity.
But had not the court which rendered the decree competent jurisdiction to make it, and was it not rendered in a suit between proper parties ?
First. Had not the court jurisdiction to make such a decree ?
By the 3d section of the chapter, it is provided that when partition cannot be conveniently made, if the interests of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, the court may order such sale ; and may so order, “ notwithstanding any of those entitled may be an infant, insane person or married woman ”; and may “ make distribution of the proceeds of sale according to the respective rights of those entitled.” Whether partition can be conveniently made in kind or not, and whether the interests of those who are entitled to the subject or its proceeds will be promoted by a sale of the entire subject or not, are questions for the court in which the suit for partition may be brought to decide, and its decision cannot be questioned in any collateral suit, except on the ground of fraud or surprise. That a sale is made pending the suit, by agreement of the parties in person or by counsel, which sale is afterwards- approved and confirmed by the court, makes no difference. Such a sale is as valid as if made under a previous decree of the court in the suit, and can no more be impeached collaterally than if so made. It is in fact a sale made
Secondly. Was not the decree rendered in a suit be- . . tween proper parties ; that is, all the proper parties ?
The suit was brought by one of the two sole proprietors of the property, and both of them were sui juris. There could have been no difficulty then on the score of parties. But pending the suit, and it seems before any decree or order had been made therein, the plaintiff, John W. Wilson, died, having been killed in battle, and it then became necessary to revive the suit against the real representatives of the plaintiff, who were his widow and devisee, Margaret E. Wilson, and his infant child and sole heir at law, John W. Wilson. Those representatives had an unquestionable right to revive the suit in their names, and prosecute it to the same conclusion to which it might have been prosecuted by the original plaintiff, to whose rights they succeeded; and the only question is whether it was so revived. The appellants insist that it ought to have been revived by a supplemental or amended bill, or bill of revivor; or at least by a scire facias. But the Code, chapter 173, § 4, page 718, provides that where the party dying is plaintiff, the person or persons for whom such scire facias might be sued out, may, without notice or scire facias, move that the suit proceed in his or their name, and an order shall be made accoi'dingly. In this case, on the 15th day of June 1863, the death of the plaintiff’, John W. Wilson, was suggested, and an oi’der was made thatjthe suit be revived and proceeded in in the name of “ John Newton and John J. Larew, administrators with the will annexed,” “--Wilson, infant son and sole heir,” “and -Wilson, widow and devisee of said John W. Wilson, deceased.” Was not this a sufficient revival of the suit in the name of the real representatives of the plaintiff according to the aforesaid provision of the Code * We think it was. The administrators with the will an
But if there were any irregularities in any of the respects aforesaid, (and whether there were or not, is a question upon which we mean to express no opinion in this case), objection on that account could only be made, if at all, in that suit, or on appeal from the decree therein, and not by an independent suit.
"We are therefore of opinion that the decree (in the partition suit) was rendered in a suit between proper parties.
It now only remains to he considered, whether there was any sufficient ground of fraud or surprise to entitle the appellants to relief in this suit ?
There was certainly no surprise in the case either proved or alleged, nor was there any fraud. The only
It is not necessary that the counsel who consented to the sale of said property in behalf of the plaintiffs should have been employed by the said Margaret E. or her child, or his guardian, provided that the said counsel were employed by John W. "Wilson, the original plaintiff in the partition suit, who was the husband of said Margaret E. and father of her child, and it is not pretended that they were not so employed. Being so employed, and he, John W. Wilson, having died pending the suit, which was afterwards revived in the name of his widow and child as his devisee and heir, the authority of the said counsel to act for the plaintiffs in the suit after it was revived must be presumed to exist, in the absence of evidence to show that it was determined. There is no such evidence in the case. On the contrary, the evidence shows that after the death of the original plaintiff in the partition suit, John W. Wilson, his widow and the guardian of his child recognized the authority of his counsel to continue to act for them in the suit, and consented to the sale of the property. John Newton, the commissioner who made the sale, expressly proves that he was requested by the counsel on both sides of the partition suit to see Mrs. Wilson, the widow, and ascertain from her whether she would consent to the sale of the property; that he accordingly saw her, and she said she preferred that it should be sold; that he had several conversations on the subject with Alexander Brownlee, her father and
Of course what we have said must be considered as referring only to the question of the right.of the plaintiffs to relief in this .suit, and not to any right they may
"We think there is no error in the 'decree, and that it ought to be affirmed.
Decree affirmed.