Dickinson's Adm'r v. Helms

• Decision Date: 06 December 1877
• Citation: 70 Va. 462
• Court: Virginia Supreme Court
• Parties: DICKINSON'S adm'r v. HELMS & als.

70 Va. 462

DICKINSON'S adm'r v. HELMS & als.

Supreme Court of Appeals of Virginia.

December 6, 1877

At a judicial sale made in August, 1859, D became the purchaser of a tract of land in the county of Franklin, and gave his bonds, payable in one, two and three years. The sale was confirmed, and the general receiver of the court was directed to collect the money--in advance--if the purchaser chose to pay it, deducting interest. D paid the first bond, and a part of the second before it was due, in his lifetime. Soon after his death D's administrator, in January and February 1863, paid to the receiver in Confederate money the amount due upon the two last bonds, and took them in. October, 1863 the receiver reported the payment of the bonds, and his report was confirmed and the receiver directed to convey the land to D's heirs; which was done. It appearing that at the time of the payments and confirmation of the sale Confederate money was little depreciated in Franklin, and was generally received in payment of debts--HELD: The payments by D's administrator were valid payments, and the bonds of D are fully discharged.

This was an appeal from a decree of the circuit court of Franklin county, rendered on the 20th of May, 1872, in a cause depending therein, in which some of the devisees and legatees of Thomas Helms were plaintiffs, and the executor and the other devisees and legatees were defendants, for the settlement and distribution of the estate of their testator. After various proceedings had been had in the cause and it had been in this court, on the 21st of May, 1859, a decree was made appointing Hugh Nelson a commissioner to sell a tract of land belonging to Helm's estate called Hairston's. This land was sold by the commissioner on the terms prescribed in the decree, when Washington Dickinson became the purchaser at the price of $13,600, and paid in cash to the commissioner $300, and executed his three bonds each for $4,333.33, with surety, payable respectively on the 15th of August, 1860, 1861, 1862. And the commissioner reported the sale and returned with his report the said bonds.

The cause came on again to be heard on the 22d of October, 1859 when the report of the sale was confirmed. And it being suggested that the purchaser of the Hairston tract of land was willing to pay all or a portion of the purchase money of said land, if the legal interest was discounted, the receiver, John S. Hale, was authorized to receive of the said purchaser the amount of all or any of his bonds, after deducting the interest at the legal rate.

In October, 1863, John S. Hale, general receiver of the court, reported to the court that he had collected from Washington Dickinson in his lifetime, and from his personal representative since his death, the whole amount for which the Hairston tract of land was sold. And on the 21st of October the court made a decree confirming the report; and Hugh Nelson was appointed a commissioner to convey the land to the heirs of Washington Dickinson, naming them. And in July, 1864, this conveyance was executed.

On the 18th of May, 1870, an order was made that John S. Hale, former general receiver of the court, do report during that term of the court, what kind of funds he received in payment of the several bonds of Washington Dickinson, the purchaser of the Hairston tract of land, when he received the same, and how he has disposed thereof. And he having made a report that the two last bonds were paid in January and February, 1863, in Confederate money, on the 20th of May the court made an order that Randolph Dickinson, the administrator, and the heirs of Washington Dickinson, naming them, should appear there on the first of the next term, to show cause why the interlocutory decree made on the 21st day of October, 1863, and the conveyance made in pursuance thereof, should not be set aside and cancelled, with a view to the collection of the last two instalments of the purchase money for the land aforesaid in such money as the parties were entitled to receive.

The proceedings on this rule resulted in a decree made on the 20th of May, 1872, setting aside the decree of October, 21st, 1863, and rescinding the deed to the heirs of Washington Dickinson, and for a sale of the land. And thereupon Randolph Dickinson, the administrator of Washington Dickinson, applied to this court for an appeal; which was allowed. The facts are stated by Judge Christian in his opinion.

Jones & Bouldin, for the appellant.

Early and Hansbrouyh, for the appellees.

OPINION

CHRISTIAN, J.

When this case was before us at the January term of this court, 1877, the court was unanimously of opinion, upon the record then presented, that the decree of the circuit court of Franklin county, rendered on the 30th day of May, 1872, requiring the administrators and heirs of Washington Dickinson to pay into the Franklin bank the two last instalments of the purchase money of the Hairston tract of land in the bill and proceedings mentioned, and, in default of such payment, directing a resale of said tract of land, was premature, and therefore erroneous. In the opinion then delivered by the court, (which is on file among our records and herein referred to), after referring to various orders and decrees and rules fully set forth in that opinion, this court declared and determined as follows: " The court is of opinion that the decree (of said circuit court) holding the purchaser responsible for the repayment of the two last instalments of the purchase money which he had paid to the receiver, in Confederate money, was premature and plainly erroneous. The said circuit court, before rendering any decree in the cause fixing liability upon the purchasers, should have required the general receiver to be made a party to the petition for rehearing, and should have required him, as well as the purchasers, to answer said petition. And no decree ought to have been rendered in the cause declaring the liability of the purchaser or the general receiver until the inquiries directed by the decree of October 21st, 1870, had been first made by the commissioner and reported by him to the court, and before answer made by the general receiver; this court being of opinion that in the state of the pleadings and in the then condition of the cause when the decree appealed from was rendered, it was impossible for the court below, or for this court, to determine with any degree of certainty whether the purchaser or the general receiver, or either of them, or in what proportion, can be held liable in a court of equity for the loss incurred, by the payment of the two last instalments of the purchase money in Confederate States treasury notes." See pages 6, 7, 8 of former opinion.

In accordance with this opinion, the decree of the circuit court was reversed, and the cause remanded to be further proceeded in according to the principles therein declared.

Upon a motion for a rehearing of the cause here, it is now shown to the court that the very inquiries directed to be made by the decree of the court below, and which this court declared were necessary and proper to be made before any final decree, had in fact been made and reported upon by the commssioner in the court below before the decree appealed from was rendered.

It so happened that the counsel who represented the appellant here was not his counsel in the court below. The report of the commissioner was left out of the copy sent to this court. Both the court and the counsel treated the case as presented in the record then before us. It was only upon this motion to rehear the case that the whole record is now brought up; so that the case is now submitted by the counsel on both sides to be determined on its merits.

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