Faulkner v. Davis

• Decision Date: 03 May 1868
• Citation: 59 Va. 651
• Parties: FAULKNER & als. v. DAVIS & als.
• Court: Virginia Supreme Court

59 Va. 651

FAULKNER & als. v. DAVIS & als.

Supreme Court of Appeals of Virginia.

May 3, 1868

1. A court of equity will enjoin a sale under a deed of trust given to secure the purchase money of land, where there is a cloud upon the title which would occasion a sacrifice at such sale.

2. It seems that in Virginia, a court of equity has not authority under its general jurisdiction as guardian of infants, to sell their real estate whenever it is for the advantage of the infants to do so.

3. The statutes in relation to the sale of infants' lands are remedial in their nature, and should be construed liberally.

4. By the act of February 18, 1853, sess. acts ch. 34, p. 39. and the previous acts on the subject, courts of equity had authority to sell the land in which infants had an interest whether in possession or remainder, vested or contingent, if the proper parties could be brought before the courts.

5. Two vacant lots in the city of Richmond are conveyed to trustees in trust for N and his wife L, and the survivor of them for life, and at the death of the survivor to be conveyed by the trustees to the children of N and wife, who should be living at the death of the survivor, and the descendants of such of the children as should be then dead leaving descendants; and upon the further trust, that if N should think it expedient to sell the lots, or any part of them, the trustees should permit him to do so, the proceeds of sale to be secured and held upon the same trusts. N dies without selling the lots leaving his wife and five children surviving him. The trust to sell continues, and a court of equity may execute it.

6. Upon a bill filed by the widow of N against the children and trustees for a sale of the lots, the court may decree a sale and the descendants of any child dying in the lifetime of the widow, will be bound by the decree; the parties before the court representing any such descendants who may become entitled under the trusts of the deed. Upon the doctrine of the representation of parties, see the opinion of Moncure, P.

7. Although the bill was prepared with reference to the sale of the land of infants under the statute, yet all the facts having been stated in it, and all the proceedings having been regularly conducted, it was competent for the court to make a decree therein for the sale of the property, if upon these facts, upon any ground whatever, the court of chancery had authority to make such a decree.

By deed bearing date the 18th of June, 1840, Lucy Nelson Call and Ann Cameron, the widow and the only child and devisee of Daniel Call, deceased, conveyed to Philip St. George Ambler and Wm Marshall Ambler, two half acre lots of land in the city of Richmond, Nos. 781 and 782, the one at the corner of Marshall and Ninth streets, and the other on Clay and Ninth streets, upon the followig trusts, viz: That the said trustees, and the survivor of them, shall permit Daniel N. Norton and Lucy M. his wife, and the survivor, to hold, use and enjoy the said lots or parcels of ground, with all their appurtenances, without claim or charge, during their joint lives, and the life of the survivor of them, (if the same be not sold as hereinafter provided for,) and at the death of the said Daniel N. Norton and Lucy M. his wife, the said Philip St. George Ambler shall hold the said lots and their appurtenances to and for the use and benefit, and as the property of the child or children of the said Lucy M. Norton by her present husband, the said Daniel N., who may be living at the death of the said Lucy M. Norton, their mother, and the child or children then living of any child or children of the said Lucy M. by the said Daniel N. Norton, who may have died in the lifetime of the said Lucy M.; and shall so convey the lots and appurtenances to the said child or children and grandchild or grandchildren of the said Lucy M. Norton and Daniel N. Norton when required, after the death of the said Daniel N. and Lucy M. Norton. And upon this further trust, that if, in the opinion of the said Daniel N. Norton, it shall become expedient to sell the lots and their appurtenances, or any portion of them, or either of them, the said Philip St. George Ambler and William M. Ambler, and the survivor of them, shall permit him, the said Norton, to do so, the price or purchase money for the same being adequately and legally secured to the uses and trusts hereinbefore described, the lawful interest annually arising therefrom to be paid to the said Daniel N. Norton during his life, and to the said Lucy M. after his death, if she shall survive him, during her life, and the principal and all interest thereon accruing after the death of the said Daniel N. and Lucy M. Norton, to be held by the said Philip St. George Ambler and William M. Ambler, and the survivor of them, as the lots would have been if not sold. There were covenants by the trustees, but the deed was not signed by them.

Daniel N. Norton died in 1841, or early in 1842, leaving Lucy M., his widow, and five infant children, surviving him, and without having exercised the power of sale vested in him by the foregoing deed. And Mrs. Norton having qualified as guardian of her children, she in June, 1847, filed her bill in her own right, and as guardian of her children, for the purpose of obtaining a sale of the real estate of the children. In her bill, which was sworn to by her, she set out the estate of the children, and amongst it, the two lots mentioned in the deed from Mrs. Call and Mrs. Cameron, a copy of which was filed with the bill; and she alleged that the interest of the children required a sale of the real estate, or some part of it, and the investment of the proceeds of the sale in some way to produce a larger income. She therefore prayed for a sale of the real estate, and its investment in a more productive fund; and for general relief.

The only defendants to this bill were the children of Daniel H. and Lucy M. Norton, only one of whom was over the age of fourteen years when the bill was filed. The case seems to have been prepared as prescribed by the statute; and on the 23d of June a decree was made referring it to a Commissioner, to enquire and report whether it was for the interest of the infant defendants that their real estate should be sold, and if sold, how the proceeds of the sale should be invested. The Commissioner reported in favor of selling the real estate; and on the 28th of June, 1847, the court made a decree appointing Commissioners, with authority to sell the same. These Commissioners proceeded to sell a part of the property; but the two lots before mentioned were not sold. In 1853 another decree seems to have been made for the sale of these lots; and under this decree the lot at the corner of Marshall and Ninth streets was sold; but Benjamin Davis, the purchaser of a part of it, objecting to the title because the trustees, Philip St. George and William M. Ambler, were not parties to the suit, Mrs. Norton, in October, 1853, filed an amended and supplemental bill, in which she stated the sale of the lot and the objection which had been made by Davis, and she made parties not only the trustees, and the children, but the purchasers of the lot, and prayed that the sale which had been made might be enforced.

The cause was regularly matured upon the amended bill, and came on to be heard on the 9th of February, 1854, when the court confirmed the sale which had been made, and decreed that when the purchasers had paid up the purchase money, Commissioners named in the decree, should convey to such purchaser, his heirs or assigns, all the estate, right, title and interest of all and any of the parties to the cause in or to the lot purchased by him. And on the 21st of the same month this decree was modified as to Davis, on his motion, and he was decreed to pay the whole of his purchase money at once, and upon such payment a Commissioner named was directed to convey to him all the estate, right, title and interest of all and each of the parties to the suit in and to the lot purchased by him.

On the 1st of April, 1854, the commissioners conveyed to Davis the lot purchased by him; and he, in May, 1857, acquired another adjoining part of the lot referred to in the bill, at the corner of Marshall and Ninth streets, giving him sixty-five feet of ground on Marshall street; and on this lot he made very valuable improvements. By deed bearing date the 26th of September, 1865, Davis, in consideration of $25,200, conveyed with general warranty, the whole of the said two lots, with the improvements thereon, to Faulkner, Carrington & Co. This deed described the ground as the same conveyed by the commissioners under the decrees in the case of Norton v. Norton, and reference was made to these deeds and the papers in that case; and there were covenants that he had right to convey, against encumbrances, and for quiet enjoyment. And on the same day Faulkner, Carrington & Co. conveyed the same to Wellington Goddin in trust to secure the payment of $17,480, the balance of the unpaid purchase money.

In March, 1866, Faulkner, Carrington & Co. applied by bill to the Judge of the Hustings Court of the city of Richmond, in which, after setting out the sale and conveyance to them by Benjamin Davis, and their conveyance to Goddin in trust to secure the unpaid purchase money, as hereinbefore stated they allege that about the time that the first deferred payment of the purchase money fell due, they determined to sell the property, and had negotiated a sale of it at $19,500 cash, provided the title was good. That the plaintiffs having been informed at the time of their purchase that Davis had derived his title under a decree of the Circuit Court of the city of Richmond in a suit still pending therein,...