Crockett v. Woods

• Decision Date: 14 September 1899
• Citation: 97 Va. 391,34 S.E. 96
• Court: Virginia Supreme Court
• Parties: CROCKETT et al. v. WOODS et al.

34 S.E. 96

97 Va. 391

CROCKETT et al.

v.WOODS et al.

Supreme Court of Appeals of Virginia.

Sept. 14, 1899.

DESCENT AND DISTRIBUTION—ACTION TO SUBJECT LAND TO DEBTS—DEVASTAVIT— CROSS BILL—MORTGAGES—APPEAL.

1. In a suit by creditors of a decedent against the administrator and heirs, three of the heirs filed a cross bill to hold the administrator liable for a devastavit for the loss of a debt due the intestate, and to hold the principal debtor, who was a party, and his surety on the debt, who was not a party nor connected with the suit, nor liable for the devastavit, because they colluded with the administrator and participated in its commission. The cross bill did not deny the lia bility of the estate. Held, that it should have been dismissed on demurrer.

2. An heir agreed that the proceeds of her share of her father's estate should be applied on her husband's debt to the estate. Her brother bought the land allotted to her in the partition, assumed the husband's debt, and mortgaged this land and his own share to the administrator to secure this debt and one of his own. When offered in parcels at foreclosure, the sister's parcel was bid to $1,949. and his own to $967. Sold as a whole, the two brought $3,065. Held, that it was error to assume the parcels to be of equal value, and to apply only one-half the proceeds to the sister's debt; the net proceeds should have been credited on the debt in the proportion of 1, 949 to 967.

3. Where an assignment of error affects but one appellant, and the amount in controversy as to him is below the jurisdiction of the appellate court, the appeal as to him will be dismissed as improvidently awarded, though the jurisdiction is not objected to.

Appeal from corporation court of Radford.

Suit by one Crockett and others against one Woods and others. There were decrees for defendants, and plaintiffs appeal. Reversed.

C. B. Thomas and J. H. Pulton, for appellants.

Blair, Pooge & Blair, for appellees.

RIELY, J. The first assignment of error is that the court did not sustain the demurrer to the cross bill.

A cross bill is a mode of defense to the original subject of litigation, and intended to be in aid of the defense to the original suit. It is filed by a defendant in a suit against a plaintiff, or some other defendant, or both, in the same suit touching the matter in question in the original bill; and it may be either to obtain a discovery in aid of the defense to the original bill, or to obtain relief for all parties touching the matter of that bill. It may be filed against a defendant, where a question arises between two defendants upon a case made out by evidence arising from pleadings and proofs between the plaintiffs and defendants. But a cross bill may not introduce new and distinct matter, not set up as a defense in the original cause, unless it be matter which has arisen since its institution; nor can it add new parties, except, perhaps, where it is made to appear, by evidence arising from the pleadings and proofs between the plaintiffs and defendants, that the presence of another party is necessary in order that the defense to the plaintiffs' demand may be complete, or a controversy between the defendants may be properly adjudicated. 1 Bart. Ch. Prac. (2d Ed.) 317-318p; Derbyshire v. Jones, 94 Va. 140, 26 S. E. 416, and authorities there cited.

In the case at bar the suit was brought and the original bill filed by creditors of Thomas Woods, deceased, against his administrator and heirs, to subject his estate to the payment of his debts. The cross bill was filed by three of the heirs for the purpose of holding the administrator liable for an alleged devastavit on account of the partial loss of a debt due to his intestate in his lifetime, and also to hold the principal debtor, who was thehusband of a daughter of the decedent and a party to the original suit, and his surety on said debt, who was not a party to the original suit and in no wise connected with its objects, liable for the alleged devastavit, upon the ground that they colluded with the administrator and participated in its commission. The cross bill did not contest the liability of the estate of the decedent for the payment of the debts asserted against it, nor set forth any defense against them, nor was it intended to be in aid of any defense against them. It set forth new and distinct matter, not embraced in the original bill, and also introduced a new party, who was a stranger to the objects of the original suit. The matter asserted by the cross bill and the introduction of the new party were plainly the...