Fowler v. Lewis' Adm'r

• Decision Date: 12 February 1892
• Citation: 14 S.E. 447,36 W.Va. 112
• Parties: FowLer et al. v. Lewis' Adm'r et al. Fontaine. v. Fitzhugh et al.
• Court: West Virginia Supreme Court

14 S.E. 447

36 W.Va. 112

FowLer et al.

v.Lewis' Adm'r et al.

Fontaine.

v.Fitzhugh et al.

Supreme Court of Appeals of West Virginia.

Feb. 12, 1892.

¹

Void Judgment—Collateral Attack—Administrators—Sale of Infant's Land—Limitation of Actions—Setting Aside Deed—Inadequate Price—Remedial Statute—New Parties—Attorney's Lien.

1. A personal judgment for money against a non-resident, on publication, without service of process or appearance, is void, is no lien on land, and may be attacked collaterally.

2. A suit against a decedent's representatives to charge his estate with a debt, the pleadings in which contain no allegation of debts against his heirs, and ask no relief as to their debts against land descended to them from such decedent, cannot be made the vehicle of ascertaining and enforcing personal debts of such heirs against such land. A decree therein as to that matter would be a nullity.

3. Nor can a suit brought by a guardian to sell infants' lands, under chapter 128, Code Va. 1860, the bill in which contains no matter as to the existence of debts of the person from whom their estate descended, and asks no relief in that respect, be made the vehicle to enforce such debts against such lands.

4. If the bill of such guardian, to sell lands of infants held jointly by them and others, allege it to be for the benefit of all the owners to sell the land as a whole, and makes all the owners parties, and prays a sale of the whole of their interests, and the co-owners with such infants, who are sui juris, answer and unite in the prayer of the bill, and ask that the whole land be sold, such co-owners thus make such suit an effective proceeding to sell their land.

5. Two such suits are heard together, and, by consent of such parties, who are sui juris, and the guardian of the infants, an order is made referring the causes to a commissioner to ascertain debts of the decedent, and also liens against lands descended to his heirs from the decedent for the debts of such heirs. Such consent by guardian is, as to the infants, ineffectual to make such reference valid to ascertain the liens against the lands of such infants for the debts of their father, who was an heir of said decedent first named, as the suits are not competent to enforce such liens, and such reference will not stop the statute of limitations as to debts against the lather of said infants. But such reference as to others sui juris will be valid by reason of their consent to it, and will, as to liens against them, stop the statute at the date of such reference.

6. A guardian cannot, by consent to a proceeding which would be void and ineffectual to prejudice the estate of infants, render it effectual to prejudice their estate.

7. There is no statute limiting a petition for rehearing of an interlocutory non-appealable decree.

8. To set aside a sale under a deed of trust for inadequacy of price, irregularity in, or want of sufficient notice of, sale, or because of incumbrances over the land at the time of sale, a party must proceed without unreasonable delay.

9. Publication of a notice of sale under a deed of trust completed before April 1, 1869, when the Code of 1868 took effect, is effectual, notwithstanding that Code provides a different notice, and is saved by section. 2, c. 166, Code 1868; and a sale made under such notice, after April 1, 1869, is not for such cause invalid.

10. Statutes, though remedial, are to be construed prima facte as prospective in operation.

11. A petition filed by a stranger to a cause, asking relief against a defendant therein on new matter contained in such petition, must be filed by leave of court, must make such defendant a party to it, and process to answer it must be served on such defendant, unless waived by appearance or otherwise.

12. If such defendant ask to become a defendant to such petition, he should be allowed to do so; and, if he be refused ths privilege of defending such petition, a decree divesting his property rights from him, on the facts contained in such petition, is erroneous.

13. If such defendant, by an order in the cause, be allowed to file a petition to set aside a deed from him, vesting such stranger filing the first-mentioned petition with the right asserted therein, and the petition of such defendant be dismissed, and an appeal taken by him, it is error for the court, pending such appeal, to proceed to decree such stranger, upon his petition, the relief sought thereby against such defendant.

14. An attorney at law has a lien on a judgment or decree obtained by him for his client, for services and disbursements in the case, or ina case so connected with it as to form the basis on which such judgment is rendered, or essential to realizing such judgment or decree, but not for services in other cases.

15. An attorney has no lien against land for prosecuting a suit to recover it for his client, or for defending a suit to recover it from his client, or to subject it to a debt or claim.

16. An attorney has no lien upon the assets of an estate realized from a sale of its lands for defending a suit brought to establish a demand against it.

17. An attorney has no lien upon a fund arising from sale of land of a person or estate, already owned by such person or estate, for services purely defensive, in resisting suits brought to establish demands against it.

Lucas, P., dissenting.

(Syllabus by the, Court.)

Appeal from circuit court, Kanawha county.

Suit by E. M. Fowler and others and Peter Fontaine, administrator of Sarah E. Lewis, against John Lewis' administrator and others. John S. Swann, John W. Lewis, James V. Lewis, and Peter Fontaine appeal. Modified.

John S. Swann and Thomas B. Swann, for appellants.

Watts & Ashby, Thomas L. Broun, Wesley Mollohan, W. S. Laid-ley, W. E. Chilton, and E. W. Wilson, for appellees.

Bkannon, J. On 13th March, 1861, James L. Carr instituted, in the circuit court of Kanawha county, a chancery suit against the administrator and heirs of John Lewis, deceased, alleging in his bill that lie had recovered a judgment for $1,500, subject to certain credits against John Slack, administrator of John Lewis, based on a note made by Lewis; that Lewis died seised of u large real estate in Kanawha and Boone counties, which by his will he devised to his sons Andrew D. LewiB, John W. Lewis, and James V. Lewis; that a portion of his personal estate he bequeathed to his daughter, Margery L. Kenna, later wife of R. J. Ashby; that all said estate was liable to his debt; and, making the administrator and children of John Lewis, deceased, defendants, the bill prayed that the real and personal estate of said decedent be subjected to the payment of said debt. The administrator and three of the heirs of John Lewis answered this bill. In September, 1865, Carlos A. Spcrry, as guardian of the infant heirs of Andrew D. Lewis, deceased, one of the heirs of John Lewis, filed in the circuit court of Kanawha county a bill alleging that the interests of the infants, as well as other heirs, would be promoted by a sale of certain lands on Bull creek, in Boone county, of which John Lewis died seised, and that a sale of it for $45,000 could be made, and prayed that the said laud might be sold, and the proceeds, after paying debts of John Lewis and the dower of his widow, divided among his heirs. This bill of Sperry, guardian, made the three living heirs of John Lewis and his widow, and the infant children of the dead heir, Andrew D. Lewis, defendants; and the three living heirs of John Lewis and his widow filed their joiiit answer, admitting the allegations of the bill, and uniting in its prayer that said laud be sold. An answer for the infants by a guardian ad litem was filed. By power of attorney dated 24th November, 1865, the living heirs of John Lewis empowered Thomas L. Broun to sell, at $52,500, the land on Bull creek, in Boone county. On 8th December, 1865, these three living heirs of John Lewis and his widow, and the widow of the dead heir, Andrew D. Lewis, and Carlos A. Sperry, guardian of his children, filed, in the suit of Carr v. John Lewis' Adm'r and Heirs, a petition representing that they had partially contracted with parties in New York for the sale of said land for $52,500, on terms specified, and praying that they be permitted to complete the contract of sale, and the moneys arising from the sale be deposited in the hands of the receiver of the court, to be disbursed among the creditors of John Lewis, deceased, and among petitioners, as might thereafter be determined by Lie court, and that the sale would promote the interest of the children of Andrew D. Lewis, and praying that their interest be sold along with interests of the others, and that Sperry, their guardian, join in the deed of conveyance, and that, on payment to the receiver of $52,500. a deed conveying the land be made to the purchaser. On 8th December, 1865, depositions were taken in the said case of Sperry, guardian, to prove the advisability of selling the land. On 19th December, 1865, a decree was entered in the cases of Carr and others v. The Adm'r of John Lewis and others, and Sperry, Guardian, v Heirs of John Lewis and others, hearing the causes on their papers, and said petition asking leave to make such sale, and such leave was granted by consent of parties, and the petitioners and Sperry, guardian for the infants, were authorized, on payment of purchase money to the receiver, to convey the land, and the decree declares itself to be a consent decree, and that its object was to effect a sale, "and to subject the proceeds arising therefrom [when paid into the hands of the receiver] to the rights of the said parties, as the land is now liable." And by further consent the decree referred the two causes to a commissioner, to ascertain and report after publication (1) of what lands John Lewis died seised; (2) what judgments were rendered against him in his life-time, and against his administrator; (3) what other liens by judgment,...