Anthony v. Kasey

• Decision Date: 19 May 1887
• Citation: 5 S.E. 176,83 Va. 338
• Parties: Anthony et al. v. Kasey et al.
• Court: Virginia Supreme Court

5 S.E. 176

(83 Va. 338)

Anthony et al.

v.Kasey et al.

Supreme Court of Appeals of Virginia.

May 19, 1887.

Judicial Sales—Default of Purchaser—Liability of Surety—Enforcement.

The liability of the surety on a bond given for the purchase price of land sold under a decree of court cannot be enforced, on default of payment, by a rule to show cause why a decree should not be entered for the difference between such purchase price and the amount it brought under a subsequent sale, and a decree so entered on default is void, and may be questioned in collateral proceedings.

Appeal from circuit court, Bedford county.

Hinton, J. In the brief of the appellees we find the following succinct statement of facts, which are all that are necessary for a correct understand-ing of the question to be decided in this case: "Under a decree in the case of " Allen and others v. Anthony and others, " lately pending in the circuit court of Bedford county, a tract of land was sold on a credit, and the appellee John G. Kasey became one of the sureties on the bonds of the purchaser for the price; the title to the land being retained as a further security. The sale was reported, and confirmed by the court. The purchaser making default, on a rule against him the land was resold, under decree in the cause, the price at the second sale being much less than at the first; whereupon a further rule was made, not only against the purchaser, but also against his sureties, to show cause why a decree should not go against them for the difference between the prices at the two sales. Upon service of the rule, Kasey not answering nor appearing, a personal decree was made against him and the others for the unpaid balance of purchase money on the first sale. The decree was never satisfied, and the case in which it was rendered has long since ended. Kasey was not a party to that suit, unless his being a surety for the purchase money made him a party. In a suit subsequently brought by creditors to subject the lands of Kasey to their debts, the appellants, in whose behalf the decree had been made, claimed a lien on the lands by virtue of their decree, and the commissioner to whom the same was referred for an account reported in their favor. Kasey and Quarles (the lands having been conveyed to the latter in trust) excepted to the report, on the ground that the decree of the appellants, reported as a lien, was null and void, and therefore constituted no lien on the lands. At the hearing, this exception was sustained, and from so much of the decree as sustained it the present appeal was allowed."

It thus appears that the sole question which the court has to determine, —and it is one of considerable importance in practice, —is whether the court has jurisdiction to render said decree against the defendant John G. Kasey, who was a surety of the purchaser. For if it did, no matter how erroneous that decree may be it cannot be collaterally assailed with success; whereas, if the court had no jurisdiction to proceed in this summary way, by rule against the surety, the decree is not merely erroneous, but absolutely void, and may be treated as a nullity in any case where its validity is called in question. "A void judgment, " says Mr. Freeman, "is, in legal effect, no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings on it are equally worthless. It neither binds nor bars any one. All acts performed under it, and all claims flowing out of it, are void." Freem. Judgm. § 117; Wade v. Hancock, 76 Va. 626; Hewing v. Perdicaries, 96 U. S. 196; Oliver v. Houdlet, 13 Mass. 239. Now, it is essential to the validity of a judgment or decree that the court rendering it shall have jurisdiction of both the subject-matter and parties. But this is not all; for both of these essentials may exist, and still the judgment or decree may be void, because the...