Childers v. Loudin *

• Citation: 51 W.Va. 559,42 S.E. 637
• Parties: CHILDERS. v. LOUDIN et al.*
• Decision Date: 15 March 1902
• Court: Supreme Court of West Virginia

42 S.E. 637
51 W.Va. 559

CHILDERS.
v.
LOUDIN et al.^*

Supreme Court of Appeals of West Virginia.

March 15, 1902.

JUDGMENT—VACATING—APPEAL—REVERSAL, —PARTITION—PARTIES—SALE—INTEREST OF CO-TENANTS.

1. When a circuit court, being about to end without dispatching all its business, is adjourned by the judge thereof to a future day, by an order entered of record, as provided in section 4 of chapter 112 of the Code, all judgments, orders, and decrees rendered and made by such court before or during the day on which such court adjourns to such future day become final on such adjournment, as if the adjournment itself were final, and cannot be set aside at the adjourned term.

¶ 1. See Judgment, vol. 30, Cent. Dig. §§ 668, 676.

2. On an appeal or writ of error the whole record is before the court, and it will reverse the proceedings in whole or in part if prejudicial error thereon is perceived against the appellee or defendant in error; and such error may be cross-assigned.

3. Judgment creditors and other incumbrancers are not necessary parties to a bill for partition, even where a sale of the premises is decreed, unless they be creditors of a deceased person who was a tenant in common, joint tenant, or coparcener. In other cases it is proper to sell the land subject to the liens.

4. It is the duty of the court, before decreeing a sale in a partition suit, to judicially determine the rights and interests of the co-tenants in the land, and failure to do so is ordinarily reversible error.

5. When real estate is sold in such suit without a judicial ascertainment of the interests of the parties, and is purchased by a co-tenant who never appeared in the cause, nor in any way aided in bringing the property to sale, and the sale is confirmed without objection, his title is protected by section 8 of chapter 132 of the Code, notwithstanding the error in the decree of sale, and the co-tenant parties must resort to the fund arising from the sale.

(Syllabus by the Court.)

Appeal from circuit court, Webster county; W. G. Bennett, Judge.

Bill by Anna Childers against J. W. Loudin and others. Judgment for plaintiff, and defendant J. N. Johnson appeals. Reversed.

W. T. Talbott, E. A. Brannon, and J. M. Hoover, for appellant.

Lynn & Byrne and J. S. Coger, for appellee.

POFFENBARGER, J. Hezekiah Sargeant died in June, 1885, being then the owner of a tract of land situated in Webster county, containing 188 acres, which he disposed of by will, devising to his wife, Anna Sargeant, one-third of it, and to his three sons, Granville, Melville, and Perry, and his daughter, Lydia Conrad, the other two-thirds, to be equally divided among them, except that Lydia Conrad was to receive $100 less out of the real estate than the sons were each to receive; and the will further provided that there should be paid Cora Sargeant, the testator's granddaughter, $100, when his real estate should be sold. Some time afterwards Granville Sargeant died intestate, without having disposed of his interest in the land,

[42 S.E. 638]

and without leaving any children or widow surviving him. His father had been twice married, and Perry Sargeant was his half-brother, while Melville Sargeant and Lydia Conrad were his full brother and sister, and Anna Sargeant was a stepmother. Hence Anna Sargeant took no part of his interest in the land, and Perry Sargeant, being only his half-brother, inherited only one-half as much of his interest as Melville Sargeant and Lydia Conrad. Granville Sargeant's interest in the whole tract of land under the will having been one-sixth, Lydia Conrad inherited two-fifths of said one-sixth, or two-thirtieths of the whole tract. Before the death of Granville Sargeant, Lydia Conrad conveyed to Perry Sargeant the one-sixth which was devised to her, but she never disposed of the two-thirtieths which descended to her from Granville Sargeant; but before the bringing of this suit she died, and said two-thirtieths descended to her children, Rosa M. Gillispie, Hetty Conrad, Geo. P. Conrad, John B. Conrad, and Clevor O. Conrad, the last four of whom are infants, who are made parties to the amended bill filed in this cause, and for whom a guardian ad litem was appointed and filed an answer. Melville Sargeant conveyed his interest by devise, descent, and purchase to G. M. Fleming, trustee, to secure a debt. Fleming afterwards sold the land, and it was purchased by said Loudin, but Fleming retained a lien upon it for the purchase money. Afterwards Fleming caused the said Perry Sargeant interest to be sold to satisfy said vendor's lien, and it was purchased by John N. Johnson, so that Johnson and Loudin became the owners of all the two-thirds not devised to the widow, except the two-thirtieths which belonged to the children of Lydia Conrad. Anna Sargeant, who afterwards married William N. Childers, conveyed to J. W. Loudin her one-third, retaining a vendor's lien upon it, which she afterwards enforced, and repurchased her said one-third. Then she brought this suit for partition of the land, and for sale of the land in case it should prove to be not susceptible of partition, averring in her amended bill that the $100 bequeathed to Cora Sargeant is not a charge upon her one-third of the land, and that she is not responsible for the payment of any part of said $100. Cora Sargeant filed her answer, claiming that she has a valid lien upon the whole of the real estate for the said sum of $100; showing that she has not been a party to any suit, sale, or conveyance affecting the land, and praying that it may be sold, and said sum of $100, with interest, be paid to her out of the proceeds. J. W. Loudin filed his answer to the original bill and amended bill, averring that the character of the land was such that the interest of all parties would be best sub-served by a sale of the land. The infant defendants answered by their guardian ad litem. Depositions of three witnesses were taken, whose evidence tended to show that the land was not susceptible of partition, and that it would be to the interest of...