Ferguson's Adm'r v. Teel

Decision Date16 December 1886
CourtVirginia Supreme Court

Argued at Wytheville. Decided at Richmond.

Appeal fro decree of circuit court of Franklin county, pronounced 20th May, 1884, in the cause wherein George Teel, suing for himself and other creditors of I. M. Ferguson, deceased, is plaintiff, and Henry S. Trout, administrator of I. M Ferguson, and the heirs of the latter, are defendants.

The facts are these: On the 17th day of August, 1870, the said George Teel purchased of the said Isham M. Ferguson a tract of land in said county of Franklin, on the north fork of Blackwater river, containing 110 acres, at the price of $_____. At the time of the contract, Teel paid to Ferguson $450, part of the purchase price, when Ferguson executed the following paper, to wit:

" $450.00. Received of George Teel, four hundred and fifty dollars, in part payment of a certain track of land in Franklin county, the State of Virginia, on the north fork of Blackwater, known as a potion of Wm Childress' land, bouned as follows, with Thomas C. Calloway, Elizabeth Trailin, the airs of Moses Greer, & c. The understanding of the above contract is if the airs of Wm. Childress should get a redevision in the lands, I am to pay the said Teel his money back; as witness my hand and seal, this 17th day of August, 1870. I. M. FERGUSON."

[10 10. 5. 3. 5. Rev. Stamps.]

The above receipt contains all the written evidence of the contract of sale by Ferguson to Teel, except the following receipt:

" Received of George Teel ($200.00) two hundred dollars in part payment on land, this 19th day of September, 1871. I. M. FERGUSON."

It nowhere distinctly appears what was the precise amount of the contract price at which the land was sold by Ferguson to Teel, but from all the facts and circumstances disclosed by the record, the fair inference is that it was $1,600, of which $450 was paid at the time of sale, as per above receipt of 17th of August, 1870, the residue to be paid in two equal annual installments, of which $200 was paid on the 19th day of September, 1871, as per above receipt of that date.

The land thus sold, as it turned out, did not belong to Ferguson, but was the property of his wife, Sarah (then living), and was allotted to her in the division of the estate of her father, William Childress, deceased. Mrs. Ferguson refused, or neglected, to join with her husband in the sale and conveyance of her said land; and in the year 1880 she died intestate and without ever leaving any issue of her body. In the meanwhile Teel had been in possession under Ferguson from the date of his purchase, and had put on the land valuable permanent improvements estimated at some $_____. The estimated value of the annual rent when Teel took possession was $50, which increased as the improvements by Teel were erected, to eighty, and then to $100.

After the death of Mrs. Ferguson, to wit: in September, 1880, her heirs-at-law, who were also the descendants and heirs-at-law of William Childress, deceased, instituted a suit in chancery in the circuit court of Franklin county, asserting their right to the land in question and for a partition of same among them. The suit was matured for hearing, and at the hearing, the distributees being numerous and partition in kind impracticable, the land was decreed to be sold and the proceeds distributed among said heirs. It was accordingly sold, and to protect himself as far as he could, George Teel became the purchaser at the advanced price of $1,780. Ferguson was then living, and told Teel he should lose nothing; and the commissioner of sale reported that Teel (through Ferguson) paid the cash payment--$70.70.

In this condition of things, Ferguson having in the meantime died, George Teel for himself and others, creditors of said Ferguson, filed his bill in the circuit court of Franklin county against Henry S. Trout, the duly qualified administrator of said Ferguson, and his heirs-at-law and distributees, the object of the suit being to collect from Ferguson's estate the said sum of $650, paid by Teel to Ferguson on said land contract, with interest on $450, part thereof, from the 17th of August, 1870, and on $200, the residue thereof, from the 19th September, 1871.

The bill, after setting forth substantially the facts hereinbefore stated, and exhibiting the bill and proceedings in said suit in which the land in question was recovered, sold, and the proceeds distributed among the heirs-at-law of Mrs. Ferguson, and exhibiting also the two receipts from Ferguson to Teel, designated as Exhibits " B" and " D," respectively, the one being for $450, dated August 17, 1870, and the other for $200, dated 19th September, 1871; and especially refers to the first-named receipt, and relies thereon for Ferguson's obligation to refund the money paid with interest.

In his bill, Teel says; " Your orator further represents that he was put in possession of this land at the time of his purchase; that he honestly believed that Isham M. Ferguson would procure for him a good and lawful right thereto, and in good faith, believing, as he did, that he was the owner thereof, he put permanent improvements on same worth at the lowest estimate $1,000; all of which went to enhance the land, but all of which he lost, and he only claims the amount agreed by Ferguson to be paid him--to wit, the sum of $650 and interest, as above stated." And the bill prays for an account of the indebtedness of Isham M. Ferguson, deceased, and for a settlement of the accounts of Henry S. Trout, administrator of said Ferguson, and for general relief; and that Henry S. Trout, administrator of Isham M. Ferguson, deceased, Edward Tench and Elizabeth, his wife, Luke Ferguson and Jake Ferguson, the last two being non-residents, be made parties defendant, and required to answer, & c.

At the September rules, 1881, of said circuit court, it was ordered: " That the plaintiff's bill should be taken for confessed at the next rules, unless the defendants should appear and plead, answer or demur to the same." And at the succeeding October rules the following order was made: " The defendants having failed to appear and plead, answer or demur, it is ordered that the order entered at the last rules be confirmed, and the plaintiff's bill taken for confessed and set for hearing."

In term, on the 7th day of December, 1881, Henry S. Trout, administrator of Isham M. Ferguson, by leave of court, filed his answer admitting in other respects, the statements contained in the plaintiff's bill, but denying that said Ferguson, at time of his death, was indebted to the complainant in the sum of $650, with interest as claimed in the bill; and insisting that by the terms of the contract, as set forth in the receipt marked " B," and filed with the bill, Ferguson was to pay the money back only in the event the heirs of Wm. Childress should get a " re-division" of the land, and that the heirs of said Childress did not get such " re-division," but that the land had been sold for partition among the heirs of Mrs. Ferguson, who had acquired the same from the estate of her father, the said Childress. And the respondent further says that complainant, when he purchased the land in August, 1870, was put in possession and remained in the undisturbed possession thereof for over ten years, and that the rents and profits of the land for that period would compensate the complainant for his improvements, if he were entitled to anything therefor. And respondent charges that after the death of Mrs. Ferguson and the institution of the suit by her heirs-at-law as aforesaid, Isham M. Ferguson promised the complainant that if he would purchase said land when sold at the suit of Mrs. Ferguson's heirs, he, Ferguson, would pay all the complainant might have to pay therefor, over and above what complainant owed him, Ferguson, on account of same, and that in pursuance of such agreement, Ferguson paid the cash payment required at said sale, to wit: $70.70.

On the 10th of December, 1881, the cause was brought on to hearing " on the bill of the complainant,...

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  • McCulley v. Brooks & Co. General Contractors, Inc., Record No. 171117
    • United States
    • Virginia Supreme Court of Virginia
    • July 19, 2018
    ...Boyd ed., 4th ed. 1952) ).2 In this context, we mean void ab initio and thus "ex vi termini , a nullity," Ferguson’s Adm’r v. Teel , 82 Va. 690, 696 (1886), not merely voidable, see Singh v. Mooney , 261 Va. 48, 51-52, 541 S.E.2d 549, 551 (2001) (distinguishing between judgments that are vo......
  • Stepp v. State Rd. Comm'n
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    • Supreme Court of West Virginia
    • December 10, 1929
    ...in the absence from the record of anything to the contrary.' Moore v. Green, 90 Va. 181, 17 S. E. 872; Ferguson's Adm'r v. Teel et al., 82 Va. 690; and Hill v. Woodward, 78 Va. 765." See State v. Bailey, 85 W. Va. 165, 101 S. E. 169. That holding is the corollary of the verity doctrine of t......
  • Shelton v. Sydnor
    • United States
    • Virginia Supreme Court of Virginia
    • January 22, 1920
    ...statement in one of the decrees that the cause came on to be heard on the bill taken for confessed as to all of the defendants. In Ferguson v. Teel, 82 Va. 690, the objection made in this court was that the case was prematurely heard in the court below, because process against a married wom......
  • Stepp v. State Road Commission
    • United States
    • Supreme Court of West Virginia
    • December 10, 1929
    ...... Green, 90 Va. 181, 17 S.E. 872; Ferguson's. Adm'r v. Teel et al., 82 Va. 690; and Hill v. Woodward, 78 Va. 765." See State v. Bailey, 85. W.Va. 165, 101 ......
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