Cooper v. Hepburn

• Decision Date: 15 May 1860
• Citation: 56 Va. 551
• Court: Virginia Supreme Court
• Parties: COOPER v. HEPBURN & als.

56 Va. 551

COOPER v. HEPBURN & als.

Supreme Court of Appeals of Virginia.

May 15, 1860

(Absent ALLEN, P. and LEE, J.^[a1])

1. H devises real estate to M during his natural life, and to his children if he should have lawful issue; if not, then at his decease to H's grandchildren. At the death of H, M is not married, but he afterwards marries and has lawful children. Upon the birth of the first child of M, the remainder was vested in the child, subject to open and let in the afterborn children as they severally came into being; and the remainder in favor of the grandchildren was defeated. And therefore the grandchildren were not necessary parties to a suit by the guardian of M's children for a sale of the real estate.

2. M as guardian of his infant children files a bill for the sale of the real estate held by himself for life and by his children in remainder; and it is sold accordingly. This is authorized by the statute.^[d1]

3. Though the bill does not formally aver that the suit is brought as guardian, yet it states that the plaintiff is the guardian, and the whole frame of the bill is in pursuance of what is required to be set out in such a case, and the infants are made defendants. The omission of this formal averment does not vitiate the proceedings.

4. One of the infant defendants having been over fourteen years of age when the bill was filed, it was irregular not to require her to file her answer. But the sale having been decreed, and it having been made more than six months after the decree and confirmed without objection, it is too late for the purchaser eighteen months afterwards to object to the irregularity.^[‡]

5. The court, if it deemed it necessary for the protection of the purchaser, might have directed the infant to file an answer after the objection was made.

6. Upon a bill for the sale of infants' real estate, the court decrees a sale, and directs the commissioner to sell at private sale; and he advertises for sealed proposals, which are to be opened at a certain day in the presence of the court. Proposals are put in, and the court accepts one of them, and forthwith confirms the sale, and directs the party to execute it according to its terms. Such a purchaser stands upon the same footing as any other purchaser at a judicial sale; and is not entitled to any other or further relief.

7. When it appears to the Court of appeals that the order of the Circuit court was based upon the evidence of facts not found in the record, that court may reasonably and justly presume that the order is right; that it was in accordance with and justified by the facts.

Prior to May 1817 William Hepburn, of the city of Alexandria departed this life, having first made his will, which bears date in February of that year, and which was duly admitted to probate in the Orphan's court of Alexandria county.

As introductory to certain bequests, the testator says: " On the first day of February one thousand eight hundred and sixteen, I sold Esther (whom I bought some years ago of Benjamin Dulany, Esquire) and her three children, Moses Letty and Julianna Eliza, to Hannah Jackson, and the said Hannah Jackson has since manumitted and set free the said three children, who have been maintained and supported by me since the death of their mother Esther, and are to be supported by me during my life." And after some directions for the care of the three children, he makes the following provision: " I give unto Moses the son of Esther aforesaid, the houses and lots where I now live (one of the aforesaid lots I bought of William Herbert, junior trustee for the creditors of Robert Conway, and the other I bought of Joseph Manderville) together with my fishing shore during his natural life, and to his children, if he should have lawful issue; if not then I give the said lots and fishing shore, at his decease, to my grandchildren equally and their heirs forever."

In May 1848 Moses Hepburn instituted a suit in the Superior court of law and chancery for Alexandria county, for the sale of the property mentioned in the foregoing devise. The writ directs the sheriff to summon Prudence Crandall Hepburn and three others by name, infant children of Moses Hepburn, to answer a bill exhibited against them by Moses Hepburn in his own right and as their guardian. The bill is in the name of Moses Hepburn, a free man of color, of the town and county of Alexandria, and sets out the devise in the will of William Hepburn, as herein before given. States that the plaintiff in the year 1827 intermarried with Amelia R. Braddock, and had by her four children (the defendants), all of whom were infants under age. That at the March term 1848 of the County court of Alexandria, he had qualified as guardian of said children. That he knows of no property belonging to his children except their reversionary interest in the lots of ground before mentioned. And he sets out at length the grounds upon which he believes it will be for the interest of the infant children that the property should be sold. And making the four children parties defendants, he asks for the appointment of a guardian ad litem, who shall answer the bill on oath; that the lots may be sold, and the proceeds reinvested in such manner as to the court may seem just and proper; and for general relief.

At the October rules 1848 William C. Yeaton was appointed guardian ad litem of the infant defendants; and at the December rules he filed their answer, submitting their interests to the protection of the court.

In November 1849 the cause came on to be heard, when the court made a decree appointing a commissioner to contract (after thirty days' notice) for the sale of the land in the bill mentioned, to be paid in Virginia state stock; the said contract to be subject to the approval of the court.

The commissioner having had the property divided into lots, offered it for sale at public auction; but after some of the lots had been struck off, he withdrew the others, thinking the price at which the lots were sold was inadequate. His report of the sale was excepted to by the plaintiff, upon the ground that the property was sold at public sale, instead of by private contract. And when the cause came on again to be heard in June 1852, the exception was sustained; and the commissioner was directed to proceed according to the original decree in the cause.

The commissioner proceeded to advertise for proposals for the purchase of the property, which were to be under seal, and to be opened in the presence of the court on the 10th day of May 1853. Three offers were put in on the 9th of May, of which the highest was that of Lewis Cooper. He proposed to give for the property sixteen thousand two hundred dollars, payable in six per centum stock of the state of Virginia; one-fourth on the acceptance of his bid, or within ten days thereafter; one-fourth on the 15th day of January 1854; one-fourth on the 15th of July 1854; and one-fourth on the 15th of January 1855, with interest until the respective deliveries, and to pay a part of the above, not exceeding two thousand dollars, in money within ten days of the acceptance, should the court require it.

The record does not show what was done on the 10th of May; but the cause came on to be heard on the 13th, when the court made a decree, reciting that Cooper had paid to the commissioner two thousand dollars in money, and had executed his bond with surety, with condition to deliver the Virginia state stock at the times stated in his proposal, and accepting his proposal, and confirming the sale; and directing the commissioner to convey to Cooper the property upon the delivery of the stock. And on the 18th of the same month the court made another decree in the cause, directing the commissioner to lend to Moses Hepburn the balance of the two thousand dollars, after deducting the expenses of the sale.

In February 1854 the commissioner reported to the court that Cooper had delivered to him two thousand one hundred dollars of the Virginia state stock; but that he had failed to deliver the residue of the stock which was then due; and that about the 26th of July 1853 the commissioner had received from the agent of Cooper a notice that at the next term of the court he would move said court to set aside the sale, and to refund the money paid by him, for defect of title to the property sold to him.

At the February term of the court Cooper presented his petition, stating that since he had made the payments on his purchase, he had accidentally learned from the result of a certain suit lately decided in the same court, that it was very doubtful whether the plaintiff and his children had any title to the land sold, for the reason that the plaintiff in the suit was a slave, and his children in the eye of the law bastards; and therefore the parties were incapable of taking any thing under the will of William Hepburn. He therefore prayed that the court would direct an enquiry into the sufficiency of the title to the property.

At the same term the court, without noticing the petition of Cooper, reciting that it appearing from the report of the commissioner that Cooper had failed to comply with the decree of May 13th, 1853, it was ordered that he appear at the May term next, and show cause why he had failed to comply with the said decree.

At the November term 1854 Cooper was permitted to file a supplemental petition, in which he says that on a further examination of the proceedings in the suit, he had ascertained that they were so irregular that no valid title to the land could be made to him: and he sets out various objections to the proceedings, viz:

1. That the bill of complaint, though it states the fact that the plaintiff had been appointed guardian of the infant defendants, yet...