Smith v. Henkel

• Decision Date: 11 March 1886
• Citation: 81 Va. 524
• Parties: SMITH v. HENKEL AND ALS.
• Court: Virginia Supreme Court

81 Va. 524

SMITH v. HENKEL AND ALS.

Supreme Court of Appeals of Virginia.

March 11, 1886

Appeal from decrees of circuit court of Madison county, entered April, 1883, and December, 1883, respectively, in a cause wherein Noah J. Henkel and Samuel Tusing are plaintiffs, and Abram S. Smith and John Smith are defendants. The decrees being adverse to the defendants, they obtained an appeal to this court.

Opinion states the facts.

D A. Grimsley, J. C. Gibson and Jas. Hay, for the appellants.

J G. & W. W. Field, for the appellees.

OPINION

FAUNTLEROY J.

In the fall of the year, 1869, Noah J. Henkel, through a land agent D. M. Digges, sold to Abram Smith, in the presence of two of his sons, A. G. Smith and Daniel Smith, the farm upon which he, Henkel, resided, in the county of Madison, Virginia, containing 443 43-100 acres, ascertained by a survey, subsequently made, for the price of $15,872.21. The purchase appears to have been made by the said Abram Smith for his wife, Elizabeth, and two of his sons, John and Abram G. Smith. The sale was made in the morning, Abram Smith and his two sons being on the lookout for a farm to purchase, having spent the night before with said Henkel. The Smiths examined the land before purchasing. Abram Smith took possession of the farm, and he and A. G. Smith remained upon it and seeded a crop of wheat. The land was surveyed on the 26th of January, 1870, and on the 29th of January, 1870, a deed was executed by Henkel and wife, conveying the said farm to Elizabeth Smith, John Smith and A. G. Smith. The Smiths paid $5,000 in cash, and conveyed to Henkel a house and lot in the town of Harrisonburg, at a valuation of $4,200; and A. G. Smith and John Smith executed their two bonds--one for $3,463.89 1/2, and the other for $3,208.31 1/2, the balance due for the said land. They, the Smiths, have remained in undisturbed possession, use and enjoyment of the said land ever since, residing upon and cultivating it. Elizabeth Smith died in the early part of the year 1876, and in July 1876, Abram Smith conveyed by deed to Edward S. Smith his interest in the estate of his wife, including this land purchased of Henkel. Abram Smith died in 1876, after the said conveyance, John Smith and A. G. Smith having held the land since the death of Abram Smith; and, from time to time, have made payments upon their two purchase money bonds, which payments are regularly endorsed thereon. But they failed to pay the bonds when they became due on January 1st, 1871, and January 1st, 1872. Henkel wanting to realize the money due upon the said bonds, sold and assigned one of the said bonds to Samuel Tusing. A. G. Smith knew of this assignment, and expressed his gratification as Tusing would probably grant a longer indulgence than Henkel. The Smiths still failing to pay their said bonds, in February, 1882, more than ten years after the last bond became due, Henkel and Tusing filed their bill, in this suit, in the circuit court of Madison county, to enforce the lien reserved upon the face of the deed conveying the land. On the 20th of April, 1882, an answer is filed by A. G. Smith and John Smith (though the same is signed and sworn to only by A. G. Smith), which prays to be treated, and is so treated by the court, as their cross-bill. This answer and cross-bill raised, for the first time, the objection on the part of the Smiths to the payment of the bonds, and for the first time suggested that the sale of the land, for which they were given to Abram Smith in 1869, was fraudulent. To this cross-bill Henkel and Tusing filed their answer, and denied every allegation imputing fraud to said Henkel, or to his agent, Digges, in the sale of the land in 1869. Depositions were taken, the cause was matured, and the decrees complained of were entered.

The decree of the 25th of April, 1883, declares: " The court is of opinion that the allegations contained in the said answer of John Smith and Abram G. Smith, which is taken and treated as a cross-bill, so far as said allegations are material and are set out with sufficient definiteness, have not been established by proof, so as to deprive the plaintiffs of their right to have their lien on the land in the proceedings mentioned, enforced, in order to the payment of the balance of the purchase money due them on said land; and that a sale of the said land, or so much thereof as may be necessary for the purpose, should be made to effect the payment of the said balance in case the payment thereof is not made in a reasonable time." And the said decree ordered the payment of $2,000.00 of the said balance of the purchase money to be made in ninety days from the end of the then term of the court; and in default thereof, directed its commissioners, McMullan and Hay, to sell the said land, or so much thereof as may be necessary, & c., for cash sufficient to pay the costs and expenses of suit and sale, and one-third of the balance then so due as aforesaid; and on a credit of one, two, and three years in equal installments as to the residue of the said purchase money. Default of payment was made and the commissioners made sale of the land, and duly reported their action to the court; and on the--day of December, 1883, the court entered its decree confirming the said report of sale, and ordering the application of the proceeds of the sale to the payment of costs and expenses, and the satisfaction of plaintiffs' lien for unpaid purchase money, and directed a writ of possession for the land sold to the purchaser.

There is no error in the decree of the--day of December, 1883 confirming the sale of the land as reported by the special commissioners, McMullan and Hay, September 15, 1883, to which report there were no exceptions. The decree recites the fact that no exception to the sale of the land had been taken. The report of the commissioners of sale shows, upon its face, that the sale was made in strict accordance with the decree...