Harrison v. Wallton's Ex'r

• Decision Date: 31 March 1898
• Citation: 30 S.E. 372,95 Va. 721
• Parties: HARRISON et al. v. WALLTON'S EX'R et al.
• Court: Virginia Supreme Court

30 S.E. 372

95 Va. 721

HARRISON et al.

v.WALLTON'S EX'R et al.

Supreme Court of Appeals of Virginia.

March 31, 1898.

Action by Infant—Res Judicata—Decree—Impeachment by Infant—Parties—Demurrer. 1. An infant may sue by his next friend to set aside a decree affecting his rights, notwithstanding Code, § 3424, allows an infant, within six months after becoming of age, to show cause against a decree or order in certain cases.

2. A decree in a former suit is res judicata in a second suit between the same parties or their privies on a different cause of action, where it appears that the issue presented in the second suit was involved and fully determined in the former suit.

3. An infant is as much bound by a decree against him as an adult, and is not permitted to impeach such decree except for fraud, collusion, or error.

4. Under the doctrine of virtual representation, a person included in a class to whom property had been devised in remainder, but not in esse at the time a decree was rendered charging the entire fee with a lien, is bound by such decree.

5. A bill in equity to set aside a decree, which does not make parties defendant all persons whose rights would or might be affected by setting aside said decree, is demurrable.

6. The sustaining of a demurrer filed by one defendant to a complaint, on the ground of res judicata, dismisses the action as to the other defendants, where the defense was not personal to him.

Appeal from circuit court, Brunswick county.

Bill in equity by James W. Harrison and others, infant children of Sallie E. Harrison, who sue by James H. Harrison as next friend, against Sallie E. Harrison and Robert Turnbull, individually and as executor of M. R. Wallton, deceased. Prom a decree dismissing the bill on demurrer, complainants appeal. Affirmed.

E. P. Buford and Pollard & Sauds, for appellants.

Geo. Mason, for appellees.

BUCHANAN, J. This suit was brought by the appellants, the children of Sallie E. Harrison, against their mother and Robert Turn-bull, in his own right and as executor of M. R. Wallton, deceased, for the purpose, as stated by the appellants in their petition for appeal, of charging the executor with the devastavit of the estate of his testatrix, occasioned by his misconduct in the case of Harrison and wife against Wallton's executor and others.

The suit of Harrison and wife was instituted by the father and mother of the appellants against the appellee Turnbull, as executor of Mrs. Wallton, and three of the appellants, all that were then in being, to ascertain the indebtedness of Mrs. Wallton's estate, and to make sale of so much of the real estate left by her as might be necessary to pay the debts.

A history of the proceedings in that case, and the misconduct of the executor relied on to show that he was guilty of a devastavit, are set out in the bill in this case, and with it are filed copies of portions of the record in that case, viz. the bill and its exhibits, the answer of the guardian ad litem, the decree of the court directing one of its commissioners to take an account of the debts of the estate and their priorities, and to report what portion of the real estate could be sold to pay off the debts, extracts from that commissioner's report, the decree confirming it, and directing sale of the land, the report of sale made by the commissionerto sell, the decree to sell enough of the personal estate to pay the residue of the debts remaining unpaid after exhausting the proceeds of the sale of the land upon certain conditions, the report of the commissioner showing the payment of the debts of the estate and the completion of his duties as commissioner, and the final decree approving that report, and striking the case from the docket.

The appellee Turnbull, in his own right and as executor, demurred to the bill, and upon a hearing of the case upon the demurrer the court dismissed the bill without prejudice to the rights of the appellants, under section 3424 of the Code.

From that decree this appeal was taken.

If, as the appellants contend, the court sustained the demurrer to their bill because they could not bring suit to assert their rights until they became of age, it erred. Section 3424 of the Code, allowing an infant, within six months after he becomes of age, to show cause against a decree or order in certain cases, does not prevent him from asserting his rights while an infant, by a next friend, as soon as he sees fit to do s6. Richmond v. Tayleur, 1 P. Wms. 733-737; 1 Daniell, Ch. P1. & Prac. 173 (side page); Judge Carr in Tennent's Heirs v. Pattons, 6 Leigh, at page 208.

The grounds relied on here by the appellee to sustain his demurrer are that the bill and exhibits in this case show that all matters about which complaint is now made were adjudicated and finally settled in the case of Harrison and wife against Wallton's executor, etc., and that, these matters being res Judicata, they cannot be inquired into, and made the subject of litigation in a collateral proceeding, as is attempted in this case.

The injuries complained of, and for which the appellants seek compensation, resulted from, as is alleged, the gross negligence and misconduct of the executor in allowing the claims of Mrs. Harrison to be established as a debt against the estate of her mother, when in fact there was nothing due her; and from injuries arising from the subjection of the real estate primarily to the payment of that and other debts due from the estate, instead of first subjecting the personal estate to their payment The bill and exhibits in this case show that both the validity and amount of Mrs. Harrison's debt and the propriety of subjecting the assets of the estate to the payment of the debts in the manner in which they were subjected were necessarily adjudicated and settled in that case.

There can be no recovery in this case against the executor without showing that the debt asserted by and adjudged to be due to Mrs. Harrison in that case was not due her, in whole or In part, or without showing that the manner in which the real estate was decreed to be and was subjected In that case was erroneous. The proceed ings in that case not only bar a second suit between the same parties or their privies upon the same claim or demand, but they also bar a suit between the same parties or their privies upon a different cause of action if It appears that the issue presented in the latter suit was involved and determined in the former suit Shumate v. Supervisors, 84 Va. 574, 5 S. E. 570; Bigelow v. Winsor, 1 Gray, 209; 1 Freem. Judgm. §§ 253-258. See, also, Miller v. Wills (decided at the November term, 1897, of this court) 28 S. E. 337; Miles v. Caldwell, 2 Wall. 35; Cromwell v. Sac. Co., 94 U. S. 351; Vanfleet, Coll. Attack, § 17.

Such a judgment or decree is conclusive upon the parties to It until reversed upon appeal, or until set aside or annulled by some proceeding instituted for that purpose.

And it is well settled with us that an infant, as a general rule, is as much bound by a decree against him as a person of full age. The law recognizes no distinction between a decree against an infant and a decree against an adult. And therefore it is that an infant can impeach only upon the grounds which would invalidate it in the case of another person, such as fraud, collusion, or error. Zirkle v. McCue, 26 Grat. 517, 528; Pennybacker v. Switzer, 75 Va., at...