Breeding v. Davis

• Decision Date: 26 July 1883
• Parties: BREEDING v. DAVIS AND ALS.
• Court: Virginia Supreme Court

77 Va. 639

BREEDING v. DAVIS AND ALS.

Supreme Court of Appeals of Virginia.

July 26, 1883

Appeal from decree of circuit court of Pulaski county, rendered 2d November, 1882, in the cause therein pending of A. J Breeding, plaintiff, against Wm. H. Davis and als defendants. Randolph Clark died 11th April, 1877, seized of real estate in said county, whereof sixty-nine acres descended upon his daughter, Eliza L., the wife of Hardin L Crum. Of their marriage there was issue born alive. In February, 1879, William H. Davis, a creditor of Crum, who was a non-resident of this state, brought an action at law against Crum to recover a debt of $122, and interest, had an order of publication executed, and levied an attachment on Crum's interest in said land. The said court, at its March term, 1879, ordered the sheriff to sell at public auction, in front of the courthouse of said county, all the right, title and interest of Hardin L. Crum in the land of Randolph Clark, deceased. The execution of this order was delayed until June, 1881. In the meantime, by deed dated 28th February, 1881, Crum and wife sold and conveyed said land to said A. J. Breeding. Soon afterwards Breeding brought this suit in chancery to enjoin the order of sale, the injunction being awarded 10th May, 1881. By deed dated 27th April, 1881, Breeding conveyed this land to Jackson Morriss with general warranty, and a special covenant to quiet the title thereto, and part of the purchase money withheld until grantor performs this covenant. Wm. H. Davis answered. By its said decree of 2d November, 1882, the said court decided that Hardin L. Crum had such an interest in the land in the bill mentioned, that the same might be sold for his debts, and decreed that the injunction be dissolved and the bill dismissed with costs. From this decree said Breeding was allowed an appeal by one of the judges of this court.

I. H. Larew, and Wysor & Gardner, for the appellant.

H. L. Crum had no interest in the land mentioned in the bill subject to levy and sale for his debts. The right to the rents, issues and profits of his wife's land during their joint lives, acquired at common law by virtue of the marriage, never vested in Crum by reason of the statute. Acts 1876-7, pages 333-4.

Curtesy is preserved by the statute, but he had no title by the curtesy, because one of the four requisites was wanting, to-wit: the death of the wife. See Definition of Curtesy, Chitty's Blk. Com. book 2, margin, page 126.

Tenancy by the curtesy initiate is destroyed by the act. Beech v. Miller, 51 Ill. 209; Billing v. Baker, 28 Barbr. 343; Vallance v. Bausch, 28 Barbr. 633; Porch v. Fries, 18 N.J.Eq. 208; Well's Sep. Prop. Married Women, page 106, section 38, page 617, section 682.

The husband " has now only a modified tenancy by the curtesy dependent upon a contingency, and no estate vests in him during the life of his wife." Beech v. Miller, 51 Illinois 209; Martin v. Robson, 65 Illinois 132; Hill v. Chambers, 30 Mich. 427; Well's Sep. Prop. Married Women, page 106, section 38.

This shadowy, uncertain estate, cannot be the subject of judicial cognizance and sale, and especially under our statute since its sale would interfere with and prevent the free alienation of her property by the wife--a right expressly secured to her by the statute. These rights were not adjudicated out of Mrs. Crum by the attachment proceedings since she was neither party nor privy to them. Breeding being her bona fide vendee, all the rights of Mrs. Crum in the land vested in him by his purchase, and having neither actual nor constructive notice of the attachment against the estate of H. L. Crum as a non-resident, he is in no wise bound or affected by it, by express provision of statute whatever may have been the interest of Crum in the premises. Code 1873, chapter 182, section 5, page 1,166.

A court of equity has jurisdiction of this cause. The jurisdiction of a court of equity is unquestioned in the following instances:

1st. To save time, expense, and multiplicity of suits. Barton's Ch'y Pr., volume 1, section 17, page 68; Oelrichs v. Spain, 15 Wall. 211; Rader and al. v?? Neal and al., 13 W.Va. 373; Sand's Suit in Equity, section 19, pages 13-14.

2d. To quiet title. Morris v. Coleman, 1 Rob. 500; 1st Story's Eq. Jur., section 711 a; Barton's Ch'y Pr., 67.

3d. Where matters arise subsequent to a judgment at law which makes its enforcement improper. Breeding being an innocent purchaser, without notice, after the judgment on the attachment, makes it improper that said judgment should be enforced, and gives rise to new rights which call for the interposition of a court of equity. Royall, adm'r, v. Johnson and al., 1 Rand. 421; Miller's ex'or v. Rice and al., 1 Rand. 438; Crawford v. Thurman and al., 3 Leigh 85.

4th. To restrain sales, by injunction in all cases when inequitable, or where they may operate as a fraud upon the rights of third persons. Breeding being no party to the attachment proceedings, and at the time of the judgment on the attachment having no interest in the subject affected, but being a subsequent purchaser for value, without notice, any sale under the attachment order would be inequitable as to him and a fraud on his rights. 1st Story's Eq. Jur., section 954.

5th. Where there is not a plain, adequate, and complete remedy at law, or when it is doubtful whether there is or is not a remedy at law. Goolsby, & c., v. St. John, 25 Gratt. 152; Coffman v. Sangston and al., 21 Gratt. 269; Wampler v. Wampler, 30 Gratt. 454; Martin's ex'x v. Lewis, ex'or, 30 Gratt. 678; Spottswood v. Higginbotham, 6 Munf. 313.

6th. To prevent irreparable wrong. Minor's Institutes, volume 4, part 1, pages 7-109-333-473; Story's Eq. Jur., section 921 et seq; Beveridge v. Lacy, 3 Rand. 63; Coalter v. Hunter, 4 Rand. 58; Miller v. Trueheart, 4 Leigh 568; High on Injunctions, sections 695 and 737.

7th. This court has jurisdiction of this cause, because it is a controversy concerning and involving the title to land. Constitution of Virginia, article 6, section 2; Code 1873, chapter 178, section 3, page 1137.

Walker & Poage, for the appellees.

First. The court has no jurisdiction of the appeal, the amount in controversy being less than five hundred dollars, and the title or boundaries of land not being concerned. Lewis v. Long, 3 Munf. 136; Hutchinson v. Kellam, 3 Munf. 202; Skipwith v. Young, 5 Munf. 276; 3 Gratt. 328; 6 Peters 151; Umberger and wife v. Watts, 25 Gratt. 167, 176-180.

Second. The appellant has no standing in this court, because he had not at the time he filed his original bill, nor has he since had any title legal or equitable, to the land sought to be subjected to the lien of appellee's attachment. Price v. Trash, 30 Gratt. 522.

Third. The county court of Pulaski had jurisdiction of the parties and of the subject matter in the attachment proceedings of Davis v. Crum, and that court having in a " proceeding in rem, " decreed that Crum had an interest in the lands sought to be subjected to sale, and having ordered a sale, these questions are res adjudicata as to Crum, and can only be impeached by a direct proceeding to set aside the judgment and decree of the county court. Redd v. Jones, 30 Gratt. 123; Lancaster v. Wilson, 27 Gratt. 624; Cline v. Catron, 22 Gratt.

Fourth. The appellant, Breeding, if a bona fide purchaser for value, at all, was a purchaser, pendente lite, and he does not in any form deny full notice of the proceedings in the case of Davis v. Crum, and having purchased with notice of the judgment and orders of the county court in that cause, he is bound thereby. The judgment in favor of Davis v. Crum was actual notice of the lien. Cirode v. Buchanan, 22 Gratt. 205.

Fifth. The married woman's act expressly provides that, " nothing in this act contained shall be construed to deprive the husband of curtesy in the wife's real estate," and if his right to curtesy remains unaffected by the act, it is a vested right of which he can only be deprived by his own act, or by the act of a court of equity, allowing him a fair compensation therefor. Poindexter and ux v. Jeffries and als., 15 Gratt. 375-6; Dold v. Geiger, 2 Gratt. 98 et seq.

OPINION

LACY J.

It is conceded that Hardin L. Crum had no other nor greater interest in the land of Randolph Clark than such as he might have acquired by marriage with his daughter, Eliza L. The appellees contend that by reason of the said marriage of the said Crum, he, having had children born alive of the marriage, was seized of a vested right of curtesy in the land of the wife, contingent upon her dying before him, which was curtesy initiate.

The appellant, on the other hand, contends that the act of the general assembly of Virginia passed April 4, 1877, known as " the married woman's act," had set apart the property of the wife, to be held free from any and every power of the husband, either to alienate or encumber the wife's land by any act, either directly or indirectly and that no right of curtesy remains to the husband, except when he survives the wife. The said act provides: " That the real and personal property of any female, who may hereafter marry, and which she shall own at the time of her marriage, and the rent, issues and profits thereof, and any property, real or personal, acquired by a married woman, as a separate and sole trader, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall be and continue her separate and sole property; and any such married woman shall have power to contract in relation thereto, or for the disposal thereof, and may sue and be sued, as if she were a feme sole : provided, that her husband shall join in any contract, in reference to her real or personal property, other than...