Childers v. Loudin
| Decision Date | 15 March 1902 |
| Citation | 42 S.E. 637,51 W.Va. 559 |
| Parties | CHILDERS v. LOUDIN et al. [a1] |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
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.
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.
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.
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 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 the infant defendants, as well as all others, to have the land sold. John N. Johnson filed no answer, but it appears that he had not paid all the purchase money due on his interest, and that a suit in chancery was pending against him and his surety for the collection of that money; and the two causes were consolidated and heard together, and on the 4th day of April, 1899, a decree was entered in the consolidated causes directing a sale of all of the land; it being recited in the decree that partition could not be conveniently made, that the interest of the infant defendants would be promoted by the sale, and that all of the adult parties had consented to such sale. The sale having been made and reported, another decree was entered on the 5th day of August, 1899, confirming the sale; J. N. Johnson being the purchaser of the land. This decree recites that there were no exceptions to the report of sale, and refers the cause to a commissioner to ascertain and report the true owners of the respective interests in said land, and who are entitled to the proceeds of the sale, together with the proportions in which each of said persons shall receive said money, and the liens existing against any of the several shares, together with the amounts and priorities thereof, and any other pertinent matters. The land sold for $556. On the 13th day of September, 1899, the court (a special judge sitting) set aside said sale and the decree confirming the sale, and ordered a resale of the land; it appearing by the order then entered that exceptions to the report of sale were filed, and also an upset bid for $600 made by W. L. Harper, with sufficient guarantors. It does not appear when the exceptions were indorsed, but the bid is dated September 12th; and, as the exceptions refer to the bid, the presumption is that they were made at the time of the filing of the upset bid,--more than a month after the sale had been confirmed. After confirming the sale on the 5th day of August, 1899, the court continued to sit until the 11th day of August, and then adjourned until the 12th day of September next, ordering a petit jury to be drawn to attend on that day. So the order setting aside the sale and decree confirming the sale was entered at the adjourned term. Johnson, the purchaser, appeals, insisting that the court was without jurisdiction to set aside the sale and the order confirming it.
Section 4 of chapter 112 of the Code, providing for the adjournment of the holding of a court to a future day when its term is about to end without dispatching all its business, as was done in this case, contains the following clause: "All judgments, orders and decrees, rendered and made by such court before or during the day on which said court adjourned to such future day, as aforesaid, shall have the same force and effect in all respects as if said court had finally adjourned on that day." This statute has been construed in the case of Wickes v. Railroad Co., 14 W.Va. 157, in which it is held that by force of said statute the term of the court, as to a judgment rendered by it before or during the day on which such adjournment becomes final, is ended, and it is not competent for the court or the judge thereof at the adjourned term, or any other subsequent term, to receive a bill of exceptions, and sign it and make it a part of the record in the cause. This case was cited with approval in Amos v. Stockert, 47 W.Va. 119, 34 S.E. 821. It is well settled that a cause cannot be reheard, and that a court cannot ordinarily set aside a final judgment or decree after the expiration of the term of court at which the judgment or decree was rendered. While the term continues, the cause may be reheard upon petition, and the decree may be set aside, but after the expiration of the term a cause can only be reheard upon a bill of review. Hodges v. Davis, 4 Hen. & M. 400; Laidley...
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