Cobbs v. Gilchrist's Adm'r

• Citation: 80 Va. 503
• Parties: COBBS, ASSIGNEE, v. GILCHRIST'S ADM'R AND ALS.
• Decision Date: 11 June 1885
• Court: Virginia Supreme Court

80 Va. 503

COBBS, ASSIGNEE, v. GILCHRIST'S ADM'R AND ALS.

Supreme Court of Appeals of Virginia.

June 11, 1885

Heard at Richmond, but decided at Wytheville.

Appeal from decree of corporation court of Danville, rendered at its May term, 1883, in the cause of Gilchrist's administrator against Howard Craft's administrator and als dismissing the petition or bill of Cobbs, assignee of Lydia Craft, bankrupt, claiming a certain surplus as part of the bankrupt's estate.

Opinion states the facts.

E E. Bouldin, for appellant.

Peatross & Harris, and Green &amp Miller, for the appellees.

OPINION

RICHARDSON, J.

This is a controversy as to who is entitled to a certain fund remaining in the hands of the receiver in the suit of Cole, adm'r of Gilchrist, against one Young and Howard Craft's adm'r, brought many years ago in the circuit court of Pittsylvania county, and there prosecuted until removed to the corporation court of Danville. The object of that suit was to avoid, for fraud, a contract and conveyance by Gilchrist to Young, of certain very valuable real estate in Pittsylvania county, Virginia, and in the state of Kentucky, which conveyance was fraudulently procured by a corrupt combination between said Young and Craft, the product of which fraudulent conspiracy was divided between them. The suit was successfully prosecuted, the swindle exposed, and the contract annulled by a decree entered in the cause, which decree was appealed from and was affirmed by this court in 1873. The cause was then sent back to the lower court for further proceedings to be had therein. Much of the land acquired from Gilchrist by Young and Howard Craft, by and through their fraudulent combination aforesaid, had passed into the hands of innocent parties, and could not be made available to reimburse the estate of Gilchrist, so it became necessary to look for reimbursement to the estates of Young and Howard Craft.

Howard Craft died seized in fee of a large estate, real and personal, which he devised jointly and equally to his wife, Lucy D. Craft, and to his son and only child, Johnson Craft. Subsequently, in a suit for the purpose, partition of said estate was had in obedience to a decree rendered in said last named suit in 1858. After said partition had been made and confirmed, Lucy D. Craft went into bankruptcy and surrendered the land partitioned to her, except a small portion which she had aliened. Upon proceedings taken therein for the purpose, the lands surrendered by Lucy D. Craft were, by order of the bankrupt court, stricken from her schedule of property surrendered, and submitted to the jurisdiction and disposition of the state court, in said suit of Cole, adm'r of Gilchrist, vs. Young and Howard Craft's representative, & c. After said suit went back to the circuit court of Pittsylvania, with the view of reaching and charging the estates of Young and Howard Craft with the liability incurred by them by reason of the fraud which they had perpetrated upon Gilchrist, the bill was amended, the necessary facts set forth, and all necessary parties made; and the appellant Cobbs, assignee of Lucy D. Craft, was made a party to said amended bill. This was in 1875. In the meantime, the cause was removed to the corporation court of Danville, wherein all subsequent proceedings were had. For the purposes of this controversy, no further mention need be made of Young or his estate, as the fund in question is part of the proceeds of the Craft lands sold in said suit.

In the suit of Gilchrist's adm'r vs. Young and Howard Craft's estates, such proceedings were had that by a decree rendered in February, 1876, a very large liability was fixed upon the estates of Young and Howard Craft. That decree ascertained and apportioned the liability of the devisees of Howard Craft; held that all the lands devised by said Howard Craft to Lucy D. and Johnson Craft, were liable to Gilchrist's estate, except certain parcels designated which had been aliened; decreed that all the lands so liable would be necessary to discharge said liability, and directed a sale of the whole, so liable, except a tract of 290 acres derived by Johnson Craft under the will of Howard Craft, and by Johnson Craft sold and conveyed to Joab Watson, as to which the court, being in doubt then as to the liability thereof, reserved its opinion. This decree of 1876, also expressly ascertained and fixed the order of liability of said Craft lands,--the lands of Lucy D. Craft (except two small parcels thereof which she had conveyed), and a certain tract of 211 acres derived by Johnson Craft under the will of Howard Craft, being declared to be first liable; the other lands of Johnson Craft, subjected by said decree, are expressly put in the class second liable.

The decree of 1876, thus apportioning and fixing the order of liability of the Craft lands, was appealed from, and the appeal regularly docketed in this court, which appeal was dismissed on the 6th day of November, 1878.

All the lands thus decreed to be sold were sold, and the purchase money came into the hands of the court's receivers.

In 1877, unexpectedly, a very considerable personal fund, belonging to Howard Craft's estate, was realized, and hence the balance, arising from the sale of the Craft lands, now in dispute.

When it was ascertained that this surplus existed, John O. Shelton, the purchaser from Johnson Craft of a tract of land (a part of that devised by Howard Craft), which had been subjected and sold under said decree of 1876, filed his petition in said suit claiming, that as said fund was needed to satisfy the liability of Howard Craft's estate, he (Shelton) was entitled thereto.

This petition was answered by Johnson Craft, denying Shelton's claim, and insisting that he (Craft), and his creditor, one Hargrove, were entitled to same. The question was determined at the June term, 1882, when the court rejected the claim of Shelton (and also that of others, who it seems also asserted claims thereto), and decreed that Johnson Craft and his creditor, Hargrove, were entitled to said surplus. Cobbs assignee of Lucy D. Craft, though a party, during this contest stood by without asserting any claim. After the decree of June, 1882, however, Cobbs, to-wit, at the September term, 1882, presented his petition to said corporation court, asking for the reversal of the said decree of June term, 1882, in so far as it directed said fund to be paid to Johnson Craft or his creditor,...