Hull v. Heirs

• Decision Date: 25 April 1885
• Citation: 26 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: Hull v. Hull's Heirs, &c. Deciied (*Snydek, Judge, Absent.)

26 W.Va. 1

Hull

v. Hull's Heirs, &c. Deciied(*Snydek, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted January 6, 1885.

April 25, 1885.

1. In no suit brought against infants to sell their real estate can a de-

cree be entered by a court, unless a guardian ad litem has been appointed for them, and he has filed for them an answer, (p. 23.;

2. If a decree be in such a suit entered by the court, ordering a sale

of the lands of infants, before a guardian ad litem is appointed for them, and before he files an answer for them, and under such decree the lands of infants be sold, and the sale be confirmed by the court, any one of these infants may within six months, after he attains the age of twenty-one, appear in the suit, whether it be ended or not, and have these decrees reviewed and reversed, and on such a reversal of such decrees for this error the title of the purchaser of the land falls, and the parties must by proper proceedings by the court be put in statu quo. (p. 28.)

3. A widow entitled to dower in the real estate of her deceased hus-

band is neither a joint-tenant, tenant in common nor copar- cener with the heirs at law within the meaning of the statute concerning partition (Code, ch. 79), so as to authorize a court of equity to sell the legal estate of the heirs descended to them, and to have her dower assigned to her out of the proceeds, and the residue divided among the heirs and those having vendor's liens on the lands, if any one heir refuses to give his assent thereto, or if any one heir be an infant defendant, the widow being the plaintiff in the suit. (p. 19.)

4. A widow can not bring a suit in chancery to have all the lands of her husband sold, and out of the proceeds of such sale to have the value of her dower paid, and the residue paid to the creditors of her husband, and if any surplus remains, to have it divided among her children the sole heirs of her husband. Such general creditors' bill she can not bring; and no suit, which she brings, can by petition or in any other manner be converted into a creditors' bill. (p. 23.)

Green, Judge, furnishes the following statement of the

case:

In 1868 Elizabeth M. Hull, widow of Felix H. Hull, and Hugh W. Sheffey, administrator of Felix H. Hull, filed their bill in the circuit court of Pocahontas county, West Virginia, setting out that Felix H. Hull died intestate in Highland county, Virginia, in the fall of 1861, leaving as surviving heirs a widow Elizabeth M. Hull and three infant children Edger P, Hull, Felix H. Hull and Lillie Hull. Letters of administration were granted by the county court of Highland county Virginia, to Hugh W. Sheftey. He proceeded to administer the personal estate and found the same insufficient to pay the intestate's debts. He then, the bill states, instituted a suit in the circuit court of Highland county Virginia to compel the creditors to prove their debts, and after exhausting the personal assets to obtain a decree for the sale of the intestate's lands after assignment of dower to the widow. But the State of West Virginia having been formed out of the State of Virginia, the circuit court of Highland county, which remained in Virginia, could not decree the sale of the intestate's land, lying in Pocahontas county, which was within the bounds of West Virginia, and thus a necessity arose for the institution of this suit to obtain a decree from the circuit court of Pocahontas county in aid of the administration ot the estate of the intestate in Highland county, Virginia. Thereupon on September 26, 1867, in said suit the circuit court of Highland county made a decree upon the petition of Hugh W. Shefiey, the administrator of Felix W. Hull, with the concurrence and approval of the widow, Elizabeth M. Hull, certifying to N". Harrison the judge of the circuit court of Pocahontas county the following facts:

" That the estate of Felix H. Hull is in due course of administration in this court; that the reports of a master commissioner showing the amount of the personal assets in the hands of the administrator to be administered, and the amount of the indebtedness of the estate are before this court, and that the indebtedness of the said estate is very largely in excess of the personal assets, and that the sale of certain lands belonging to the estate of said Felix II. Hull, and situate in the county of Pocahontas in West Virginia will be necessary in aid of the assets within the jurisdiction of this court to discharge the debts of the estate of said Felix II. Hall, deceased; that this Court respectfully requests the circuit court of Pocahontas county in the State of West Virginia, to decree a sale of the lands belonging to the estate of said Felix II. Hull, deceased, lying in said county for the purpose aforesaid, and that the Hon. Hugh W. Shefiey and James Bumgardner, Jr., Esq. are authorized to act in that behalf as commissioners of this Court."

The bill then states that all the lands in Pocahontas county referred to in this decree, as seized by Felix H. Hull at the time of his death, were as follows: First: Four tracts of land containing in all 3, 280 acres of land, which on October 13, 1853, Andrew G. Mathews agreed to convey to Felix II. Hull, now deceased, for $2,000.00 in cash and $8,000, 00 to be paid in four annual payments of $2,000.00 each, to be paid on October 1 in each successive year for tour years, on the payment of which a general warranty deed was to be made of three of these tracts of land, and a special warranty deed for the fourth containing 260 acres. A copy of this agreement was filed with the bill. This agreement was not recorded. Second: A tract of land of 1, 180 acres conveyed by Ann M. Mathews and Mary Ann Mathews to Felix II. Hull in his lifetime on January 1, 1855, by deed recorded. The grantors were the widow and only child of Samuel L. Mathews, who died intestate, and who by a contract made July 4, 1854, had agreed to convey this land to Felix II. Hull, now deceased. This deed was a general warranty deed and the consideration was $5,313.00. A vendor's lien Avas reserved on the face of this deed to secure the unpaid purchase-money, all of which, the

bill says, was paid except $-, the bill failing to state the

amount unpaid. This deed was recorded, and a copy of it was filed with the bill. Third: The lands conveyed by Joseph McClung and Mary J. McClung to Felix II. McClung in his lifetime by deed, dated September 20, 1855. The land so conveyed is thus described in the deed, a copy of which is filed with the bill:" The entire interest of the grantors in the lands formerly owned by Jacob W. Mathews known as the home tract, which embraces several tracts, together with their interest in the lands formerly belonging to said Mathews in said county, excepting several small tracts previously sold to John W. Warrick." The consideration was $833.33 J to be paid in cash October 1, 1855, four days after the making of this deed, and $2,500.00 to be paid at a future day, time not named in the deed, and bearing interest from October 1, 1855, and the balance of the purchase-money, $1,666.66f, to be paid on October 1 next succeeding the death of the widow of Jacob W. Mathews. This deed was a general warranty deed and retained a vendor's lien for the unpaid purchase-money. The whole purchase-money was $5,000.00. The bill states that there was conveyed by this deed an interest in thirteen different parcels of land, mentioning their size and the interest in each conveyed, which varied from one half to one fourth of these different tracts of land. The bill alleges, that all of the purchase-money for their interest in these different tracts of land has been paid except $1,000.00 with interest from September, 1858, which is coming to Kyle Bright, the personal representative of Joseph McClung, deceased. Fourth. A parcel of land of 200 acres conveyed to Felix H. Hull by Uriah Horner and wife by deed dated May 22, 1856. This deed was recorded, and a copy of it was filed with the bill. It was a general warranty deed and all the purchase-money had been paid when the deed was made. Elizabeth M. Hull, one-of the plaintiffs and the widow of Felix H. Hull, the bill alleges, owned an undivided moiety of these thirteen tracts of land, an interest in which was conveyed by Joseph McClung and wife to her husband; and she states in the bill, that she is willing her moiety of these lands should be sold with the rest of the lands of Felix II. Hull, deceased, the court securing her interest therein. She owned the moiety of these lands as the heir of Jacob W. Mathews deceased.

There was also filed with the bill a copy of another decree in said suit brought by Hugh W. Shefiey, one of the plaintiffs in this suit, as administrator of Felix H. Hull in the circuit court of Highland county Virginia. The portions of the decree, which have any bearing on this case, are as follows:

" And it appearing from the statements in the petition of Hugh W. Shefiey, administrator, that lands of very considerable value belonging to the estate of said Felix II. Hull, deceased, and situated in the county of Pocahontas, in the State of West Virginia, and subject to liens, one for about $2,000.00 held by James II. Renick, of Greenbrier, West Virginia, and another of about $1,000.00 (the exact amount not known) in the hands of William H. MeClintic, of Pocahontas county, West Virginia, and that the holders of said liens threaten to attach said lands or set them up to sale to enforce their liens, and that said lands are in danger of being sacrificed by such action, and that the said owners of said liens propose, upon receiving one half of the amount of their said liens, to suspend all proceedings against said lands and to await the convenience of the estate for the payment of the remainder, in consideration whereof, it is adjudged, ordered and decreed that Hugh W. Sheftey, administrator of Felix II. Hull, deceased, be and he is hereby authorized to...