Heermans v. Montague 1

• Decision Date: 13 March 1895
• Parties: HEERMANS et al. v. MONTAGUE et al.1
• Court: Virginia Supreme Court

20 S.E. 899

HEERMANS et al.

v.MONTAGUE et al.¹

Supreme Court of Appeals of Virginia.

March 13, 1895.²

Deed of Trust—Sale on Default—Equity Practice—Bill of Review—Petition for Rehearing—Unrecorded Deed—Effect as against Creditors.

1. A trustee in a deed of trust was authorized, upon default to pay a sum secured by the deed, to advertise the property for 30 days by posting notices in three public places, and sell the same; but, instead of advertising, the trustee made a deed of bargain and sale to the beneficiary, upon consideration of $100 credited on the debt. Held, that the deed passed no title.

2. Though a bill of review lies only to a final decree, and is not a part of the cause in which the former decree was rendered, while a petition for rehearing lies only to an interlocutory decree, and is a part of the suit, a bill of review filed to an interlocutory decree will be treated as a petition for rehearing; and a petition for rehearing to a final decree will be treated as a bill of review, provided it conform to the requirements of such a bill.

3. A petition for a rehearing must state by whom it is presented, the interest of the petitioner, the material facts upon which the decree to be reviewed was founded, and the relief sought, and it must be filed by leave of court.

4. While leave will always be given any party to answer or deny the allegations of a petition for review, it is not usual to require service of process, for matters requiring such service should be presented by the regular pleadings; and where the parties have been served with process, or are before the court, there is no reason for a further process, and the practice in this respect is the same that prevails as to supplemental bills.

5. A bill of review lies only for error apparent on the face of the decree, or for after-discovered new matter, and all the parties to the original suit must be brought in by regular process.

6. A bill of review can only be filed by a person who was a party or privy to the suit wherein was rendered the decree to be reviewed, and who was aggrieved by the errors as-signed, and is to be benefited by a reversal of the same; and, though a like rule applies to petitions for rehearing, a person not a party to the former suit, whose interest may be affected, may come in by petition to be made a party, and then ask a rehearing of a former decree.

7. Bills of review, and petitions for rehearing that may be treated as bills of review, must be filed by leave of court.

8. A bill to review a decree confirming a sale made by previous order of court, which does not seek to bring in the purchaser at said sale, who was not a formal party to the suit, is defective for want of proper parties.

9. A bill of review filed by persons who were not parties or privies to the suit wherein the decree to be reviewed was rendered is irregular and unauthorized.

10. By section 5, c. 114, Code 1873, a deed, until recorded, is absolutely void as to creditors with or without notice thereof.

Appeal from circuit court, Montgomery county.

Ronald & Heermans and Hoge & Hoge, for appellants.

George G. Junkin, for appellees.

RICHARDSON, J. This is an appeal from a decree of the circuit court of Montgomery, rendered on the 1st day of December, 1888, sustaining the demurrer to the petition of C. H. Heermans, trustee, and E. Round-thaler, seeking to review, reverse, and annul a decree theretofore rendered in the chancery cause of Montague, for, etc., v. J. Glenn Latimer and others, subjecting a certain tract of 245 acres of land, in the county of Montgomery, to the satisfaction of certain lien creditors of J. Glenn Latimer. The suit of Montague, for, etc., v. Latimer et al., in which the decree sought to be reviewed was rendered, was a creditors' suit brought by J. K. Montague, for the benefit of George G. Junkin and others, creditors of J. Glenn Latimer, against said Latimer and Onora, his wife, Robert G. Latimer and Nannie, his wife, and Warren D. Latimer, their infant child, Charles H. Miller and Margaret J., his wife, and Bur-rill Howard and America, his wife. The object of the suit was to enforce the lien of the judgment set forth in the plaintiff's bill against certain real estate sold and conveyed by the judgment debtor, said Latimer. The lands thus sought to be subjected were— First, certain lots or parcels of land conveyed by J. Glenn Latimer to his father, Robert G. Latimer, by deed dated 29th November, 1882; second, a lot of one-half acre conveyed by said Latimer to America Howard, wife of Burrill Howard, by deed dated 8th September, 1878, but not recorded until July 7, 1881, which was after the rendition of the plaintiff's judgment; and, third, a tract of 245 acres, inherited by J. Glenn Latimer from his maternal grandfather, Jesse Hall, which tract of land was conveyed by said Latimer to C. H. Miller, by deed of bargain and sale dated 20th of July, 1875, and on the same day was acknowledged before the clerk of Montgomery county court, in his office, by said J. Glenn Latimer, and was left in said office, but not for recordation, and was not admitted to record as to him until after the commencement of this suit, to wit, on the 28th day of June, 1884, and long after the rendition of plaintiff's judgment, which was recorded on the 29th of November, 1878, and was duly docketed. The bill charged that a certain conveyance from J. Glenn Latimer to Robert G. Latimer, of 29th November, 1882, was not only without consideration, and therefore fraudulent and void, but was made to hinder, delay, and defraud creditors, and that the lands thereby conveyed were liable to the plaintiff's judgment; that as to the one-half acre Howard lot and the 245-acre tract, while they were sold and conveyed prior to the recovery of plaintiff's judgment, the deeds, respectively, were not recorded until long after the rendition and docketing of same; and that, the lien of the judgment having in the meantime attached, the said lands are liable thereto.

It seems that J. Glenn Latimer, Robert G. Latimer, Burrill Howard and wife, and Charles H. Miller, each answered the bill; but the answer of Charles H. Miller only appears in the record here. In his answer he says that the deed from J. Glenn Latimer to him, of 20th July, 1875, conveying the 245-acre tract of land, was properly acknowledged and prepared for recording as to said Latimer, and on the said 20th of July, 1875, "was lodged in the clerk's office of the county court of Montgomery county for record." But this averment is wholly unsustained by proof. So far, indeed, from the deed having been lodged in the clerk's office for recordation, the proof is clear that it was not left for recordation, and was not recorded, for one or both of two sufficient reasons: (1) The tax for recordation was not paid. (2) J. Glenn Latimer was an infant under 21 years of age, when he inherited from his grandfather the 245 acres of land, and his father, Robert G. Latimer, was his guardian; and the heirs of Jesse Hall, other than said J. Glenn Latimer, instead of conveying the land to him, conveyed it to his said father, as his guardian; and, the said father and guardian not having conveyed it to his said son and ward on his attaining his majority, it seems to have been thought necessary that the father and former guardian should join in the conveyance to C. H. Miller. Hence the deed was so prepared, and on its face purports to be, not the deed of J. Glenn Latimer alone, but the deed of Robert G. Latimer, former guardian of J. Glenn Latimer, and J. Glenn Latimer. It was never executed or acknowledged by Robert G. Latimer; and although acknowledged by J. Glenn Latimer, and left in the office, it was not so left for recordation, but as a deed not ready for recordation, and, for one or both of these reasons, was deposited and kept by the clerk in the receptacle for deeds not ready to be recorded, and continued to be so kept until after this suit was brought, when, on the 28th of June, 1884, it was admitted to recordas to J. Glenn Latimer, as appears by the indorsement on the deed.

The cause having been matured, such proceedings were had therein that on the 14th day of May, 1886, when the cause "came on to be heard upon the papers formally read, decrees entered, the answers of the defendants J. Glenn Latimer, Robert G. Latimer, Burrill Howard and wife, and C. H. Miller, " a decree was then entered holding that the lots of land mentioned in the bill as claimed by Robert G. Latimer and America Howard are not subject to the lien of the plaintiff's judgment, and dismissing the bill as to the defendants Robert G. Latimer and wife, Warren D. Latimer, and Burrill Howard and wife. But by the same decree the plaintiff's judgment was declared to be a lien upon the 245-acre tract of land conveyed by the judgment debtor, J. Glenn Latimer, as aforesaid, to Charles H. Miller; and by the same decree an account of liens and their priorities was ordered, and an inquiry was specially directed as to whether the rents and profits of said 245 acres would in five years discharge the liens thereon. The account of liens and their priorities was taken and reported, it being ascertained and reported also that the rents and profits of said land would not in five years pay off the Hens thereon; and on the 30th of November, 1886, a decree was entered in the cause confirming said report, to which there were no exceptions, and directing a sale of the land, unless the said judgment debtor, J. Glenn Latimer, or Charles H. Miller and wife, or some one for them, should pay off said liens within 30 days. Such payment not having been made, John R. Johnson, the commissioner appointed for the purpose, sold the land on the 21st day of March, 1887; George G. Junkin, the beneficial plaintiff, becoming the purchaser, at the price of $125. This sale was reported by the commissioner, the commissioner stating in his report that the land sold at an apparently low figure, because, among...