Farant In v. Corp.

• Decision Date: 20 March 1924
• Citation: 122 S.E. 141
• Parties: FARANT INV. CORPORATION. v. FRANCIS.
• Court: Virginia Supreme Court

122 S.E. 141

FARANT INV. CORPORATION.

v.FRANCIS.

Supreme Court of Appeals of Virginia.

March 20, 1924.

Rehearing Denied April 9, 1924.

Error to Circuit Court of City of Norfolk.

Action by Joseph Francis against the Far-ant Investment Corporation. Judgment for plaintiff, and defendant brings error. Reversed and rendered.

This is an action of ejectment instituted by the defendant in error, Joseph Francis, against the plaintiff in error, the Farant Investment Corporation (who will be hereinafter respectively called plaintiff and defendant, in accordance with their positions in the trial court), in which, neither party demanding a jury, all questions of law and fact being submitted to the court for decision, the court, having heard and considered the evidence without a jury, found for the plaintiff to the effect that the plaintiff was entitled to the possession and ownership in fee of the lands in the declaration mentioned, and entered judgment accordingly for the plaintiff. The defendant assigns error.

The case turns upon the question of whether or not the title to the land was outstanding at the time of the institution and trial of the action, and hence was not then in the plaintiff, by reason of the fact that there was prior to the suit brought, to wit, in 1915, a conveyance of such lands to one W. B. Farant under decree of the court of law and chancery of the city of Norfolk, entered in 1915, in a suit under the statute, for the sale of infants' lands, in which said lands, then belonging in remainder, in fee, to said plaintiff, Joseph Francis, subject to a certain life estate, were sold to said Farant.

The bill in the suit just mentioned was filed by the guardian of the said Joseph Francis, and the regularity and validity of the proceedings therein, by which the validity of the aforesaid conveyance is to be tested, are challenged by the plaintiff in the case in judgment in two particulars only, namely: It is claimed that it appears on the face of the proceedings in said suit for the sale of said lands (1) that the bill did not state "plainly all the estate, real and personal, belonging to said infant, " Joseph Francis; and (2) that "all those who would be his heirs or distributees, if he were dead, " were not made defendants to such suit, as required by the aforesaid statute in force when such suit was instituted, being section 2616 of Pollard's Code of 1904, as amended by Acts 1902-04, c. 531, pp. 842, 843.

The statute, so far as material, provided that for the purpose of obtaining a sale of any estate, real or personal, of an infant, or in which he is interested with others, infants or adults, the guardian of the infant—

"may * * * file a bill in equity in the * * * corporation court of the corporation in which the estate proposed to be sold, * * * or some part thereof, may be, stating plainly, all the estate, real and personal, belonging to such infant * * * and all the facts calculated to show the propriety of the sale. * * *

" * * * The infant * * * and all others interested shall be made defendants; and, also, where there is an infant, * * * all those who would be his heirs or distributees if he were dead."

The following appears on the face of the proceedings in said suit:

The allegations of the bill, filed in said suit for the sale of said lands, which are material to be considered in this appeal, are as follows:

"Third. That the said Joseph Francis is the owner of a vested interest or estate in two certain lots or parcels of land, lying, being and situated on Jefferson street, in the city of Norfolk * * * " (being the land aforesaid in the said declaration mentioned).

"Fourth. That the said Joseph Francis inherited the said vested remainder from his father, Robert Francis, Jr., to whom this property was devised by will of Robert Francis, Sr., subject to a life estate of Emma Jane Francis Johnson.

"Fifth. That Emma Jane Francis Johnson conveyed said life estate, derived by her of Robert Francis, Sr., to Walter Sibert by deed * * * " (describing the deed and exhibiting the original thereof with the bill).

"Sixth. That the said Robert Francis, Jr., departed this life many years ago, leaving Joseph Francis his sole survivor and only heir at law.

"Seventh. That Robert Francis, Jr., at the time of his death was seised and possessed of the property hereinabove referred to, subject to the life estate of Emma Jane Francis Johnson, and died without a will.

"Eighth. That the property hereinabove referred to is all of the property of whatever kind and description of which Robert Francis, Jr., died seised and possessed.

"Ninth. That Joseph Francis is sole heir, and has no other kin or relation."

The bill made only the infant, Joseph Francis, and the said Walter Sibert, an adult, parties defendant.

When the cause was properly matured both as to the infant and adult defendants, an order was entered referring the cause to one of the commissioners of the court, who was directed—

"to inquire into and report to the court:

"First. Whether all proper parties are before the court.

* * * * * *

"Third. Whether the rights of any person will be violated by such sale; [and] whether all the requirements of the statute as to the sale of infants' lands have been complied with.

"Which inquiries, " the order further directed, "the said commissioner shall make and report to the court, together with any matters specially stated deemed pertinent by himselfor required by any of tbe parties to be specially stated."

The commissioner's report was regularly made and returned, showing that proper notice was given by him to all parties to the cause; that they were all present before the commissioner, the infant, by guardian ad litem, and the others in proper person; that thereupon the commissioner took the depositions of D. J. McDermott, guardian of the infant, also of the infant, who was over 14 and nearly 21 years of age, and of two other witnesses, giving their names; and the commissioner reported the following, among others, as facts found by him from the testimony before him:

"First. All necessary parties are before the court. It was proved before your commissioner that the infant, Joseph Francis, has no relations whatever, even in the remotest degree. He is very nearly of age, and gave a clear account in this particular. Mr. D. J. McDermott also testified that he knew him and knew that all of the members of his family were dead.

* * * * * *

"Third. The rights of no person will be violated by Buch sale, and your commissioner finds all the requirements of the statute as to the sale of infants' lands have been complied with."

The commissioner further reported an offer of purchase of said lands from said Farant, which the commissioner stated he considered a liberal one, and recommended its acceptance by the court.

Thereupon the cause came on to be heard upon said commissioner's report and the evidence returned therewith, to which report no exception was taken, and the aforesaid decree was entered confirming such report, accepting said offer of purchase made by said Farant, and directing that the aforesaid conveyance be made to him by the special commissioner appointed by the decree for that purpose, upon the deposit of the purchase money by Farant in bank to the credit of the court, and that the special commissioner make report of his action under such decree to the court.

The evidence returned by the master commissioner with his said report (the depositions taken by him as aforesaid, as we assume) does not appear in the record before us.

In pursuance of said last-mentioned decree Farant deposited the said purchase money in bank to the credit of the court; the special commissioner executed and delivered to Farant the aforesaid conveyance, and subsequently reported such facts to the court.

Thereupon the court, on July 30, 1915, entered a decree confirming such special commissioner's report, and his action in executing and delivering said conveyance, and confirming the aforesaid sale to Farant.

On the trial of the case in judgment it ap peared from the testimony of the guardian that the said infant, at the time said suit for the sale of his lands was instituted and was pending, owned no personal estate, and that the said lands set forth in the bill constituted "all the estate" of said infant. Indeed, this fact was not controverted on such trial.

On such trial, however, the plaintiff introduced, as a witness in his behalf, an uncle of the plaintiff, who testified that he was a brother of the mother of the plaintiff, and stated, in substance, that, although at the time of said suit the plaintiff was the only descendant of his father, and there were no kindred of the plaintiff on the side of his father then living, the witness was of kin to the plaintiff on his mother's side, and the nearest of kin on that side, " "to [his] knowing, " that witness had a brother, who had gone away, of whose whereabouts, or whether "he got killed in the army or not, " witness did not know.

Williams, Loyall & Tunstall, of Norfolk, for plaintiff in error.

Jas. G. Martin & Bro. and Venable, Miller, Pilcher & Parsons, all of Norfolk, for the defendant in error.

SIMS, P., after making the foregoing statement, delivered the following opinion of the court:

There is but one assignment of error which raises the single question upon the decision of which the result in the case turns, and that question is this:

1. Does it appear on the face of the proceedings in the suit for the sale of infant's lands above mentioned that the court had jurisdiction to enter the decree which directed the conveyance of the lands in the declaration mentioned to one Farant, so that such decree, and also the conveyance, was not void, but valid, and hence by virtue thereof an outstanding title was vested in one other than the plaintiff?

The question must be answered in the affirmative.

It is true that in the suit in which the decree in question was entered the court did not exercise a...