Hurn v. Keller

• Decision Date: 25 September 1884
• Citation: 79 Va. 415
• Parties: HURN v. KELLER.
• Court: Virginia Supreme Court

79 Va. 415

HURN v. KELLER.

Supreme Court of Appeals of Virginia.

September 25, 1884

Appeal from two decrees of circuit court of Shenandoah county rendered April 4th and September 19th, 1883, in the chancery cause of Joseph Keller against Isaac Hurn's adm'r and heirs. Hurn having died intestate, Keller sued to settle his estate and subject it to pay his claim. Account of all debts was directed, taken, reported, and confirmed, and decree entered, directing Luther Hurn, administrator, and one of the heirs of Isaac Hurn, deceased, and party to the suit, as special commissioner, to sell the real estate. He sold part thereof in 1870.

In 1874, when it was believed by Luther Hurn that it would not be necessary to sell all of the decedent's real estate in order to pay his debts, he procured a conveyance to himself from his co-heirs, of a certain unimproved lot of land in the town of Strasburg, valued at fifty dollars, and erected thereon permanent improvements, which cost $1,500, and enhanced the value of the lot $800. In April, 1882, it appearing that it was necessary to sell all of the decedent's real estate, Allen and Walton, special commissioners, were directed to sell, and they sold for $770 the lot which Luther Hurn had improved. Luther Hurn presented his petition praying for an allowance under Code 1873 chapter 132, for the said improvements. The circuit court, by the decree which is complained of, confirmed the sales which had been made and reported, and refused to allow the said petition to be filed, and Luther Hurn appealed.

W R. Alexander, W. Byrd, for the appellant.

H. C. Allen, for the appellee.

OPINION

LACY J.

In September, 1867, the appellee, Keller, instituted suit against the administrator and the heirs of the said Isaac Hurn, for a settlement of the estate, and for the sale of the real estate in the hands of the heirs, of whom the appellant, Luther Hurn, was one. At the September term, 1868, a decree was rendered for an account of the estate, real and personal, and an account of the debts. At the September term, 1869, the appellant, Luther Hurn, was appointed a special commissioner to make sale of as much of the real estate as was necessary to pay the debts. A part of the real estate was sold by this special commissioner and reported, and other real estate was not sold by the said special commissioner, but remained unsold in the hands of the heirs, and was rented out and a part of the debts paid. In 1882 another account of debts was ordered, and in 1883, upon the report of the master commissioner, it appearing that it would be necessary to sell all of the real estate of the said Isaac Hurn to pay his debts, it was so ordered at the April term of the court of the said year. At this term, appellant, who was one of the heirs of the said Isaac Hurn, moved the court to be allowed to file his petition in the cause, setting forth that he had bought out some of the heirs in a piece of the real estate and built upon it, and asking to be allowed compensation for his expenditures in erecting the said buildings, upon the ground that, while holding the land under a title believed by him to be good, he had erected the improvements. This petition the court rejected, and ordered the piece of land so built upon to be sold. The sale was made and reported to the court at the next September term, 1883. To which report the appellant excepted, again thus setting up his claim for improvements. The court overruled the exceptions and confirmed the report of sale of the said piece of land and disallowed appellant's claim for improvements. Then the appellant applied for and obtained an appeal to this court.

The appellant was a party to the suit instituted by the appellee, Keller, in 1867, both as administrator and as heir. Pending these proceedings to subject this real estate, and before the debts were paid, and after decree for sale of the same--he being directed to sell the said real estate as special commissioner--he erected these improvements. Has he any valid claim for compensation for these improvements so erected by him?

The suit in question to subject the real estate of Isaac Hurn was brought by the appellee, Keller, to subject the same to the satisfaction of his debt. The appellant claims that as this debt was paid the said suit was no notice to him of the debts of other creditors subsequently proved in the cause, and that as he procured a deed from the other heirs of Isaac Hurn his title is not...