Findley et al.
| Decision Date | 21 November 1896 |
| Citation | 42 W.Va. 372 |
| Court | West Virginia Supreme Court |
| Parties | Findley et al. v. Findley et al.(Dent, Judge, not sitting.) |
A judicial sale of laud, as a general rule, converts it into personalty. If land be sold, under chapters 79 or 83 of the Code of 1891, belonging to an infant or insane person, the sale does not at once convert into personalty, but the proceeds remain realty until the infant becomes of age, and, in the case of one insane, until he becomes capable of making a will, when they are to be regarded as personalty.
Where a guardian gives bond, and, later, land of his ward is sold under decree, and he gives an additional bond to secure its proceeds, the latter bond is primarily liable for such proceeds.
Bonds taken in judicial proceedings bind obligors if the court have jurisdiction, though its action be erroneous, but not void. The action of the court can not be incidentally questioned by impeaching the bonds.
A bond reciting one to be guardian estops its obligors from questioning that fact.
If a bond in a judicial proceeding bind one to account for money put in his hands by the court, as to which he is in law to be regarded a special receiver or custodian, the bond is good for such money, though it call the party a guardian.
G. Equity Practice Commissioner's Report Exceptions.
Exceptions to a commissioner's report recommitted will not be considered in hearing the case on a second report, unless such exceptions be made to the second report.
J. Hop. Woods for appellants:
I. The interest of Susan Findley in proceeds of sale was per-
sonalty and passed, to her administrator, and not to plaintiffs as heirs. Code, c. 86, ss. 2, 3; Story's Eq. § 1212; 1 Lomax, Ex'rs c. 1, § 1, p. 220, sub. sec. 7, and p. 223, sub. sec. 8; lb. c. 2, § 1, p. 229, sub. sec. 1; 1 Rand. 313.
II. Martin and Kunst if liable at all are only liable as addi-
tional sureties. 16 W. Va. 167.
III. Only parties in interest can sue. Plaintiffs had no interest -87 Va. 655; 18 W. Va. 693, syl. 3; 6 Gratt. 301; 9 Gratt. 273.
IV. Courts will not enlarge liability of sureties by implication. 3 Call, 74; 2 Rob. (old) Prac. p. 132.
V. Plaintiffs could not reply to supplemental answers and at
same time proceed to decree. Respondents were entitled to time within which to prove answers. Minor's Inst. Vol. 4? part 1, p. 674; 3 W. Va. 480, syl. 1.
F. M. Reynolds for appellees:
I. The general bond of a guardian is not liable for money de-
rived from the sale of ward's realty where special bond is given when said money is placed in guardian's hands. 38 Me. 47; 11 Met. (Mass.) 529; 90 Pa. St. 350; 11 Cush. (Mass.) 22; 51 Iowa, 152; 23 Ind. 607; 47 Ind. 310; 39 1ST. J. Eq. 27; 125 Pa. St. 542; 43 Mo. App. 16; 83 Me. 195; 4Nev. 429; 13 Gray (Mass.) 387; 130 Mass. 439; 9 Am. & Eng. Enc. Law, 141.
II. The sureties on new bond, become wholly responsible, and, former sureties are released when new bond is given. 23 Gratt, 525.
III. Liabilities on general and special bonds distinguished. 45 Pa. St. 408; 42 W. Va 178.
W. R. D. Dent for appellees, cited Code, c. 71, s. 19; Code, c 83, s. 7; 32 W. Va. 14; 36 W. Va. 112.
William Findley devised a tract of land by the language "To my beloved wife, Susan Findley, and my four children of her body, * * * provided that, if my wife should intermarry with any person after my death, said home farm shall thereupon go and descend to said four children" naming them. James W. Findley qualified as guardian of said four children, with Cornelius E. Reynolds as surety in his bonds. This guardian brought a suit to sell the coal under the land, and, under a decree in the case, it was sold. Another decree, after reciting that, it appearing that by the will of William Findley said land was devised to his wife and the four children, provided that, if his wife should marry, it should go and descend to said four children, and that she still remained unmarried, sets apart one thousand two hundred and ninety four dollars, being one fifth of the proceeds of sale, "for the use of Susan Findley while she remains a widow and unmarried, which shall be loaned out upon good and ample security, and the interest paid to Susan Findley annually;" and this decree then provided that all the proceeds of sale should be paid "to James W. Findley, guardian," and directed him to manage said fund for the interest of his said wards as required, "provided that he shall pay the interest on said sum of one thousand two hundred and ninety four dollars to Susan Findley as the same may accrue from year to year/1' The decree reserved "right to make further orders herein from time to time as to the management of said fund." This decree required said guardian to give a bond before receiving money under it, and he gave such bond, with Martin and Kunst as sureties. The guardian paid the children, when of age, all the money, except said one thousand two hundred and ninety four dollars set apart for the widow, and on her consent he paid one fourth of that to one of the children. The widow never married, and died in 1887. Afterwards three of the children brought the present chancery suit against said guardian and the sureties in his first bonds as guardian and the said second or additional bond given under the decree; and this suit resulted in a decree charging said money on the said guardian and Martin and Kunst, sureties in the second or additional bond given under said decree, and exempting the sureties in first guardian bonds. Kunst and Martin's executrix appeal.
The personal representative of Susan Findley was not a party to the suit until he was made such by an amended bill, but was never served with process, and the decree complained of was rendered when he was thus absent from the cause. Later a motion was made in vacation to reverse this decree because of want of service of process on Susan Findley's administrator, or appearance by him, when said administrator appeared and tendered his answer, admitting that he had full notice of all the proceedings and decrees in the case, waiving all objection to any error therein against him, and agreeing to any amendments of the record necessary to render the decrees binding on him as if he had appeared and filed an answer; admitting all the allegations of the original and amended bills. He had been served with a notice of the execution of an order of reference by a commissioner.
Appellants object to the decree because Susan Findley's administrator was not before the court when it was made. Was he a necessary party? This leads us to inquire whether this fund is to be deemed as belonging to her estate at all, and, if belonging to her estate whether it was realty or personalty; for, if realty, her administrator had no title to it, and was not a necessary party, but it descended as realty on her death to her children. It seems plain that the will vested the mother and her four children with a joint estate; theirs being in fee simple, hers in fee simple defeasible upon condition subsequent the event of her marriage, if that condition be not void as against public policy, because in restraint of marriage, a matter not now material. Being real estate, what is the effect of the decree to sell Mrs. Findley's interest along with the interest of the others? Did it work a conversion from real into personal estate, so as to vest title to the money in the administrator? Or did it yet remain in reality, descending on her death to her heirs? This is not a question of ordinary equitable conversion, as where a will directs land to be sold, or money to be invested in land, in which cases a court of equity raises the fiction, to execute the intention, that at once, before sale, the land is held to be money, in the case of land directed to be sold, and, in the other case, that the money is, before actual investment, to be regarded as realty. Harcum's Adm'r v. Hudnall, 14 Gratt. 369. Nor is it the case of the surplus proceeds of a decedent's land, after payments of his debts, sold under decree of court, which surplus seems to be realty, and, therefore, no conversion from realty to personalty as to his heirs and personal representatives. Fowler v. Lewis' Adm'r 36 W. Va. 113, point 15 (14 S. E. 447). Late English cases seem to change there the doctrine of earlier cases, and make such sale work a total conversion so that the surplus is personalty. See Hyett v. Mekin, 25 Ch. Div. 735, reviewing cases, and holding that "an absolute order of sale, made within the jurisdiction of the court in an administration suit, operates as a conversion from the date of the order and before sale." Beach, Mod. Eq. Jur. § 532, notes this change in the English courts, and puts their holding as the true doctrine.
This rule of conversion or non-conversion is one raised for the purpose of devolution of property to settle, as between personal and real representatives, which shall take; and we must be careful to apply it according to the question before us. Now, when a dead man's land is sold under mortgage, trust deed, judgment lien, or general creditors' suit, any surplus would go to that man's heirs or devisees not personal representatives. So far it continues realty. But that surplus, as a part of the estate of the heir or devisees, is personalty. If he dies, it goes to his personal representative, because the decree passed title to land away from him, and vested right to the money in him. The decree converted land into money by its mere force. As to this the fact that the heir's title is by descent makes no difference from what it would be if he had acquired by deed. It is his land that is sold, and as to him it becomes personalty. If he had sold by his...
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