Donahue et al v. Fackler et al

• Decision Date: 09 December 1882
• Citation: 21 W.Va. 124
• Court: West Virginia Supreme Court
• Parties: Donahue et al v. Fackler et al

21 W.Va. 124

Donahue et al

v.Fackler et al

Supreme Court of Appeals of West Virginia.

Submitted June 23, 1882

Decided December 9, 1882.

1. Commissioners are appointed to make sale of land under a decree of court, requiring them to give bond before proceeding to act. The sale is directed to be made for part cash and the residue on credit, and the sale is made as directed, the cash payment made to the commissioners and bonds executed by the purchaser to the commissioners for the deferred payments. The commissioners fail to give bond as required, and before the sale is reported by them or any order made for the collection of the sale bonds, the purchaser pays said bonds to the commissioners, who were also the counsel who had instituted and prosecuted the suit for the owners of the land sold and among whom the proceeds were to be distributed, but the purchase-money was never paid over to said distributees. Held:

The said persons appointed commissioners had no authority to receive said purchase-money, either as commissioners or as counsel for the parties, and the purchaser is bound to pay it again, (p. 129.)

II. The commissioners, having received the money without authority, are liable in this suit to the purchaser for the amount so paid them, or either of them, with interest thereon from the time it was paid to them. (p. 132.)

2. When it is uncertain whether or not certain persons have an interest in land, it is error to decree a sale of such land without making such persons parties to the suit. (p. 133.)

Appeal from and supersedeas to a decree of the circuit court of the county of Putnam, rendered on the 7th day of November, 1879, in a chancery cause in said court then pending, wherein Thomas M. Donahue and others were plaintiffs, and and Wiley Fackler and others were defendants, allowed upon the petition of Francis J. Gray.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decree appealed from.

Snyder, Judge, furnishes the following statement of the case:

Thomas M. Dimalmo and others instituted this suit in the circuit court of Putnam county in August, 1858. In its inception it was a friendly suit to sell certain lands lying in said county belonging jointly to the plaintiffs and defendants and which, it was alleged and proven, could not be partitioned in kind with advantage to the owners. The cause was matured for hearing and a decree entered appointing commissioners to make sale of said lands. The said commissioners, pursuant to said decree, made sale thereof on September 10, 1859, to James M. Gray, and by a decree of December 15, 1809, said sale was confirmed. From said decree and a subsequent decree of October 24, 1873, the said dames M. Gray appealed to this Court. A sufficient statement of the nature and object of the suit and the proceedings had therein prior to and on the 25th day of February, 1875, the date on which the decision of this Court was pronounced upon the former appeal, may be found in the opinion of Paul, Judge, reported in 8 W. Va. 249

After the cause had been remanded by this Court, the plaintiffs filed in the circuit court of Putnum county an amended bill in which, after giving a synopsis of the proceedings theretofore had therein, they aver that Andrew Parks and James W. Hoge as special commissioners had surrendered to the defendant James M. Gray all three of the bonds for deferred payments on the lands sold by them, and that on the first of said bonds are these words endorsed:

"By $325 paid Thomas Donahue, 10th September, 1859. "Parks & Hoge."

"Paid to Parks & Hoge and Donahoe & Austin.

"James W. Hoge."

The second of said bonds is endorsed: "Received payment. Parks and Hoge." And that the third contains an endorsement in the same words as the second and with the same signatures.

They, also, allege that no part of said purchase-money was paid in such manner as to constitute a payment by the said Gray; that a large portion was paid in Confederate money and in bacon, lard, &c, to the said Parks and Hoge commissioners, without the knowledge or consent of any of the beneficiaries of the fund, either plaintiffs or defendants; that said bonds were surrendered before said sale was confirmed; that said commissioners were never authorized to collect said bonds, nor had they as sueh commissioners ever Executed any bond as required by the decree of sale; that said Andrew Parks has departed this life and John W. Bentz has been appointed his administrator; and that dames W. Hoge the surviving commissioner declines to act further in the premises. They make the defendants to their original bill, John W. Sentz administrator of Andrew Parks, deceased, and James M. Gray defendants, and pray, that said James M. Gray may be compelled to account for and pay the whole of said purchase-money with its accrued interest; that said James W. Hoge may be required to disclose fully what consideration was given to him and his co-commissioner Parks for the surrender of said sale bonds, what portion was lawful money, and if it be ascertained that any portion ot said purchase-money has been paid by said dames M. Gray to said commissioners in such manner as to constitute a credit upon said bonds, that they or either of them be required to account for same: and for general relict.

The defendant James M. Gray, having departed this life, Frances J. Gray, his widow and administratrix, and his children and heirs at law were made defendants; and by an order, entered October 25, 1876, it is shown that the administratrix and heirs demurred to the plaintiffs' said amended bill which demurrer the court overruled. On the 28th day of April, 1877, the said administratrix and heirs of James M. Gray, deceased, filed their answer to said bill in which they aver, that all the purchase-money for the said land was paid by said James M. Gray in a valid manner to parties authorized to receive the same and in such a way as to discharge the said Gray and his estate from all liability, and to entitle his heirs to a deed for said land from the court: that no part of said money was paid in Confederate currency or anything else except lawful money; that said Andrew Parks and James W. Hoge, the commissioners appointed to sell said land, were also partners in the practice of the law under the firm name of Parks & Hoge, and were as such partners the attorneys of the plaintiffs and all the other original parties to this suit and all of the persons who had any interest in the said land at the time of the sale thereof and until the same was paid for by said Gray, and as such attorneys they prosecuted this suit, made said sale and collected the purchase money therefor; that the said Gray paid said purchasemoney in full for said land, partly to the parties to whom the same was coming and the residue to said Parks and I Hogo as commissioners or as attorneys lor the parties entitled to receive it. And they exhibit with their answer two orders the one signed by the plaintiff, Thomas M. Donahue, acknowledging the payment to him, on September 10, 1859, of three hundred and twenty-five dollars, by James M. Gray and directing said commissioners, Darks and Hoge, to credit said amount on the bonds given by said Gray for the land sold by said commissioners, and the other signed by P. S. Austin acknowledging the payment of one hundred and ninety-seven dollars and fifty-three cents on May 8, 1800, by Gray to him upon his interest in said purchase-money and directing said commissioners to credit said Gray's bonds tor said sum.

James w Hoge in his answer admits the institution of the suit, the sale of the land and proceedings had in the cause as stated in the plaintiffs' bills; that he was the junior commissioner and almost the entire business was transacted by his co-commissioner, Parks; that he cannot explain why a report of the sale had not been made to court and he always believed such report had been made until recently; that whatever payments were made by Gray, on the sale of lands, to him and his co-commissioner were made separately and none of them were joint payments; that the first sale bond was paid as follows: To Thomas M. Donahue, on September 10, 1859, three hundred and twenty-five dollars; to P. S. Austin, on May 3, 1860, one hundred and ninety-seven dollars and fifty-three cents, to respondent, on September 15, 1860, one thousand three hundred and seventy-two dollars, and to Andrew Parks two hundred and ninety-seven dollars; that the second and third bonds, if they have been fully paid, were paid to said Andrew Parks alone, and that no part thereof was ever received or used by respondent) that the endorsements of said two last bonds is in the handwriting of said Parks, and respondent refused to receive, or be a party to, any payment of the said two bonds; that he cheerfully admits his liability for the one thousand three hundred and seventy-two dollars paid to him as aforesaid, but denies that he is liable for any other sum.

On the 28th day of April, 1877, the cause was referred to a commissioner who made and returned a report which was, on the 7th day of November, 1879, confirmed without exception; and the court by its decree of said date, after reciting, "that said James M. Gray, having paid said purchase-money to the said Andrew Darks and dames W. Hoge when they were not authorized to receive more than the cash payment of three hundred dollars, lie was bound to see to its proper application, and if not properly applied said Gray and his representatives must look to said Parks and Hoge, respectively, for reimbursement of the amounts paid by him to each of them, respectively, the liability of said Parks and Hoge, as special commissioners, to the estate of said James M. Gray being separate and not joint," it orders and decrees that unless the administratrix of the estate of James M. Gray, deceased, pay to commissioners named therein, within sixty days, "the sum of the said three bonds executed by said James M. Gray to Austin...