*Fowler v. Lewis's Adm'r. Fontaine
| Decision Date | 12 February 1892 |
| Citation | 36 W.Va. 112 |
| Court | West Virginia Supreme Court |
| Parties | *Fowler et al v. Lewis's Adm'r.Fontaine et al v. Fitzhugh, et al. |
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.
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' Opinion handed down March 31, 1891; reargument allowed upon Swann's Appeal, January 19, 1892; and final decision rendered February 12, 18'92 against land descended to them from such decedent, can not 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, (p. 127.)
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 (p. 127.)
If the bill of such guardian, to sell lands of infants held jointly by them and others, alleges 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 coowners 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. (p. 128.)
Two such suits are heard together, and by consent of such parties, who are sal juris, and of 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 debt 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 father 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, (p. 128.)
A guardian can not, by consent to a proceeding which would be void and ineffectual to prejudice the estate of infants, render it effectual to prejudice their estate, (p. 128.)
There is no statute limiting a petition for rehearing to an interlocutory non-appealable decree, (p. 130.)
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, (p. 134.)
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, (p. 132.)
Statutes, though remedial, are to be construed prima facie as prospective in operation. (p. 133.)
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., (p. 137.)
If such defendant ask to become a defendant to such petition, he should be allowed to do so; and, if he be refused the privilege of defending such petition, a decree diverting his property-rights from him on the facts contained in such petition is erroneous. (p. 138.)
If such a 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 be 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. (p. 139.)
An attorney at law has a lien on ajudgmeiit or decree, obtained by him for his client, for services and disbursements in the case, or in a case so connected with it as to form the basis on which such judgment is rendered, or as to be essential to realizing such judgment or decree, but not for services in other cases, (p. 140.)
A 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, (pp. 141, 144, 159.)
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. (pp. 143, 153.)
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. (pp. 143, 153.)
Conversion of land into personalty by sale under decree, (p. 150.)
J. S. Swann Sf T. B. Swann for appellants cited 14 Me. 20; 37 K Y. 505; 6 Johns. 496-498; 3 llarr. 15; 2 IT. S. Dig. §§ 237, 23S, 242-244, 249, 253, ' 265, 282, 285; 16 W. Va. 378; 50 Me. 231; 85 Tenn. 506; 76 Ga. 639; 14 Ga. 110; Weeks Att'y at Law, 607, 608-610; Id. 621, 624; 17 Gratt. 304; 14 W. Va. 211; 48 Vt. 52; 55 Pa. St. 437; 113 IT. S. 127, 765; 23 Wall. 119, 127; 20 How. 128; Woods Lim. Act. 448 (N-Y.) 463, 464; 105 U. S. 526; 113 IT. S. 116; 93 IT. 8. 352; 45 K Y. 300; 1 Lans. 55; 75 Ya. 508; 6 S. E. Rep. 1; 11 Gratt. 441, p't 3 Syll.; Cool. Const. Lim. 301, 302; 11 N. Y. 281; Sto. Const, 250; 25 Pa. St. 354; 18 Johns. 112; 13 X. Y. 200; 23 W. Va. 139; 18 W. Va. 598; Hill Trusts 478: Id. 852; 17 Yes. 455; 19 Gratt. 592; Id. 610; 15 Gratt. 84; 13 W. Va. 440, 461; Freem. Jdgmts §§ 98, 117; Freem. Jud. Sales § 50; 20 Gratt, 354, 355, p't 11 Syll.; 5 Den. 640; Dan. Ch'y PI. 1804, 1805; Bar. Ch'y. Pr. 345; 3 Otto 353; 1 Wash. 224; 23 W. Va. 579, 592; 9 Johns. 142.
Watts I' Ashby, T. L. Broun and W. Mollohan, W. S. Laidley, W. E. Chilton and E. W. WUson for appellees cited 16 W. Va. 626; 22 W. Va. 456; 23 W. Va. 662; 2 W. & T. Lead. Cas. Eq. 1216; 27 Kan. 195; 7 Mich. 533; 1 Am. & Eng. Ency. Law 959; Mich. Agen. 877-880; 32 W. Va. 297; 6 II. L. 444; 14 Pet. 175; 15 Yes. 224; Pom. Spec. Perf. § 1408; 93 IT. S. 274; 83 Am. Dec. 527; 94 Am. Dec. 742; 8 How. 492; 11 How. 437; 12 How. 246; 14 How. 334; 23 W. Va. 487-565; 82 Am. Dee. 724; 14 Abb. Pr. 227; 95 Am. Dec. 446; 46 111. 476; 20 Ark. 667; Wait Ac. and Def. 443, 444, 451, 457; 16 Am. Dec. 93, Weeks Attys. 437, 456; 4 W. Va. 539; 22 Gratt. 493; 4 Lans. 67; 7 How. 31; 35 Cal. 463; 10 Cal. 531; Woods Stat. Lim. 269, 272; 16 W. Va. 724; 18 W. Va. 184; 30 W. Va. 248; 12 W. Va. 144; 19 W. Va. 1; 21 W. Va. 469; Id. 503; 23 W. Va. 100; Id. 565; Id. 656; 1 Bart. Ch'y Pr. § 23 (notes); 20 Wall 171; 9 Black 545; 95 U. S. 422; 7 How. 234; 12 How. 209; 2 Wall. 87; 99 IT. S. 201; 32 W. Va. 319; Id. 463; 118 IT. S. 196; 15 W. Va. 609, 619; Code (1860) c. 117, s. 6; 29 W. Va. 512; Id. (1868) c. 87, ss. 7-10; 16 W. Va. 625.
On the 13th of 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 he had recovered a judgment for one thousand five hundred dollars, subject to certain credits against John Slack, administrator of John Lewis, based on a note made by Lewis; that Lewis died seised of a large real estate in Kanawha and Boone counties, which by his will he devised to his sons Andrew D. Lewis, John W. Lewis, and James Y. Lewis; that a portion of his personal estate lie bequeathed to his daughter, Margery L. Kenna, later wife of 11. J. Ash by; 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. Sperry, 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 of the 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 forty five thousand dollars could be made, and prayed that the said land might be sold, and the proceeds, after paying debts of John Lewis and the dower of his widow, be divided among his heirs. This bill of Sperry, guardian, made the three living heirs of John Lewis and his widow and...
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Fowler v. Lewis' Adm'r
... 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 ... ...
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Citizens Nat'l Bank v. Consol. Glass Co..
...relied on by counsel, our own cases of Gilchrist v. 0. & 0. L. Co., 21 W. Va. 115; Stewart v. Stewart, 27 W. Va. 169, 171; Fowler v. Lewis's Adm'r, 36 W. Va. 112, 126; Stewart v. Northern Assur. Co., 45 W. Va. 734, support this proposition. But as these cases hold if the courts of a foreign......