Hull's Adm'r v. Heirs

• Court: Supreme Court of West Virginia
• Writing for the Court: Brannon
• Citation: 13 S.E. 49,35 W.Va. 155
• Parties: Hull's Adm'r v. Hull's Heirs. Dudley et al. v. Same.
• Decision Date: 21 March 1891

13 S.E. 49
35 W.Va. 155

Hull's Adm'r
v.
Hull's Heirs.
Dudley et al.
v.
Same.

Supreme Court of Appeals of West Virginia.

March 21, 1891.

Judicial Sale — Rights op Purchaser—Sale of Land to Pay Decedent's Debts — Decree— Limitations—Covenant of Warranty.

1. A purchaser of land under a void decree, whose money has been applied upon liens on the land valid against the owner of the land, will be entitled to charge such money upon such land by substitution to the right of the creditor, upon disaffirmance of the sale.

2. Such purchaser may maintain a bill to enforce such right, and as incident to his relief make his bill a creditors' bill.

3. A decree which simply confirms a commissioner's report of debts, and directs a sale of lands therefor in default of payment, though that report specifies the debts and priorities, is erroneous, because the decree does not itself adjudicate and declare what debts are to be paid, and fix their order and priority as to the lands to be sold therefor.

4. A record of a suit by an administrator and widow of a decedent, brought in Virginia against his heirs, to sell lands there to pay debts and satisfy the widow's dower, wherein debts are decreed against the decedent's estate and subjecting its assets, is not evidence, in a suit in this state against such heirs to subject lands of such decedent to pay such debts, to establish such debts or their amounts.

5. A decree in such suit will not save such debts from the statute of limitations for the purposes of a suit prosecuted in this state against lands here.

6. Where a bond is given for purchase money for land, and secured by a lien in the deed of conveyance, the mere giving of a new bond or note, In place of the original, does not release the lien, but the lien is good for the new bond or note.

7. The statute of limitation does not apply to a lien for purchase money reserved in a conveyance of land.

8. A deed conveys the "entire interest" of the grantor in land, and contains a covenant of general warranty. This warranty is limited and restricted to the interest conveyed, and does not warrant the land.

9. A covenant of warranty applies to the estate conveyed, and cannot enlarge that estate.

(Syllabus by tiie Court.)

Appeal from circuit court, Pocahontas county.

R. S. Turk, for appellant.

R. S. Fairish, for appellees.

Brannon, J. This case, if we may call it the same case, is now the second time before this court. The report of the former decision of this court will be found in 26 W. Va. 1, where will be found a full statement of the facts up to the date of the former appeal. A chancery suit had been brought in the circuit court of Pocahontas county by Sheffy, administrator under a Virginia appointment of F. H. Hull, deceased, and Elizabeth Hull, his widow, to sell lands of said decedent lying in Pocahontas county to pay debts of his estate, some of them alleged to exist as purchase-money liens on said land, and to satisfy the dower claim of said widow out of the proceeds of sale in lieu of dower in kind, and a decree of sale was rendered, and said lands sold, and their sales confirmed; and then one of the heirs, after becoming of age, filed a petition showing cause against the decrees, and asking their reversal, and the restoration of his share in the lands sold under the decree; and, such relief having been denied him, he appealed to this court, which rendered a decision holding that tho plaintiffs in the suit could not maintain such a bill to sell said lands, and that the infant heirs of Hull were not parties before the court, and therefore the decrees and sales were void, and remanding the cause to the circuit court, " with instructions to put all parties in statu quo, by requiring all persons who have received any of the purchase money of said lands to refund the same, with interest, and by refunding to the purchasers any money which they may have paid on their purchases, with interest from the time when it was paid, and allowing them compensation for all permanent improvements put upon the land bought, and by requiring them to pay for the rents and profits of said lands from June 9, 1869, and by doing all other things necessary and proper to put all persons in statu quo, and, if necessary, to modify or change the above suggestions as to the mode of so doing in any way which, under the actual circumstances of the case, may be found necessary; and the court shall otherwise proceed with this cause according to the principles laid down in this opinion, and further according to principles governing courts of equity. " When the cause went back to the circuit court, E. P. Hull, F. H. Hull, and Lillie E. Huff, heirs of F. H..Hull, moved the court to put them in possession of the lands of their father which had been sold under the void decree, but the court refused to do this. We think this should have been promptly done. This court had held that there was really no suit, and that the decree of sale was void; and having directed, as the chief, 1 may say the sole, object of remanding the cause, that

[13 S.E. 50]

the parties should be put in statu quo, manifestly a restoration of possession to these heirs of the lands improperly sold from them under the void decree was a step to said heirs—the most important step—in the line of action indicated by this court to put the parties in statu quo. The decree was the only right by which the purchasers had obtained, or could ask to retain, possession, and, that having fallen, what right had they to retain possession? If it be said that the money of these purchases had gone to pay liens against the land, and the purchasers would be entitled to substitution, and ought to be allowed to retain possession in order that they might from the rents and profits reimburse themselves, these answers present themselves: (1) N© decree had yet been made declaring them entitled to substitution; (2) the 3uit having been held to be one not properly brought to sell the lands or convene the liens, it could not, in its then state, be made the vehicle of enforcing the right of substitution, as it had no locus standi in curia, save only to restore the parties to the status quo, the only function which, by fair construction of the former opinion of this court, this court designed said cause thereafter to perform; and (3) at that time the suit of Dudley and others v. Hull and others, below more particularly referred to, had not been brought. Should said heirs hereafter ask such possession, it should be given them.

The court made a reference, at the same time this motion for a writ of possession was made, (1) to ascertain all lands of Hull; (2) all liens thereon; (3) all debts due from his estate; (4) to settle the accounts of his administrator; (5) to ascertain the persons to whom purchase money from such land sales was paid, and on what account, calculating interest from date of payment; (6) to make an account of rents and profits of each tract sold under the decree from date of confirmation of sale; (7) an account of permanent improvements, showing by whom made. Now, some of these heads of reference were pertinent to the purpose for which the cause was remanded to the circuit court, and necessary to the execution of the mandate of this court; but so far as the reference directed the lands of which Hull died seised to be ascertained, and the liens and all the estate debts thereon and the settlement of the personal estate, with the view of converting the suit into a creditors' bill, the court was making the suit perform an office which it could not be made to perform consistently with the decision of this court; and had the suit gone on alone, and been treated as a creditors'...