Mcgee v. Johnson

• Decision Date: 19 July 1888
• Parties: McGee et al. v. Johnson et al.
• Court: Virginia Supreme Court

7 S.E. 374

(85 Va. 161)

McGee et al.

v.Johnson et al.

Supreme Court of Appeals of Virginia.

July 19, 1888.

Judicial Sales—Setting Aside—Lis Pendens—Estoppel.

A sale of land to satisfy judgments was confirmed, half the purchase money paid, and a writ of possession awarded. Two sons of the former owner, 15 months after the sale, filed a bill, claiming portions of the land under oral contracts with their father, accompanied by full payment and possession, and conveyances made during the proceedings under which the sale was made. The only direct testimony proving the sale was complainants' own, which was materially contradicted by written evidence. They pretended to have paid a portion of the money to the assignee in bankruptcy of their father, but neither the assignee nor the father's testimony was taken. One of the sons was a defendant to the suits in which the sale was had, and present at the sale, but never set up any claim to the land, and the father admitted ownership in his answer. Both complainants were in the vicinity pending these proceedings, and must have known of tbem. Held, that this evidence would not sustain the bill.

Appeal from circuit court, Carroll county.

Creditors' bills to subject the land of William W. McGee to certain judgment liens, and a petition in the nature of a cross-bill by William W. McGee, John Q. McGee, and T. J. McGee, attacking a sale made in the causes to James B. Johnson. The pleadings and evidence are fully stated in the opinion. From a decree dismissing the petition the complainants therein appeal.

Mr. Walker, for appellants. Mr. Crockett, for appellees.

Hinton, J. This is an appeal from a decree of the circuit court of Carroll county, rendered at April term, 1885, in the cause of J. B. Johnson v. McGee et al., and the causes heard therewith. The material facts of the case are as follows: In July, 1881, one Frank A. Humes instituted a suit in equity, in the circuit court of said county, to enforce the lien of a judgment against William W. McGee, G. Hale, and John Q. McGee, one of the appellants. The bill averred that William W. McGee was the owner of three tracts of land, containing, respectively, 40, 157, and 290 acres, and that John Q. McGee, one of the appellants, and G. Hale owned no real estate. Process was duly served on all of the defendants, and William W. McGee appeared and answered, admitting that he owned all of the real estate mentioned in the bill. In March, 1882, James B. Johnson instituted suit in the same court against the same William W. McGee and John Q. McGee to enforce the lien of his judgment against the lands of the former. This bill also averred that William W. McGee owned all the lands, as stated in the suit of Humes v. McGee et al., just mentioned, and that John Q. McGee owned no real estate. Process was served on all the defendants to this bill, and William W. McGee again appeared and answered, but did not intimate that he did not own all of these three tracts of land. In each of these suits decrees were rendered by thecourt directing a commissioner to rent out the lands. In July, 1882, Thomas Steel, a judgment creditor, instituted his suit in equity against William W. McGee to enforce the lien of his judgment. His bill sets out the lands owned by William W. McGee substantially as stated in the before-mentioned causes. The commissioner having reported that he was unable to rent out the lands for an amount sufficient to pay the judgments in these causes, the court, at its October term, 1882, heard the causes together, and rendered a decree for the sale of the lands. In February, 1883, Johnson filed an amended and supplemental bill, in which, after setting out the various proceedings that had been had in these causes, he stated that he had since learned the fact that the lands of William W. McGee had been sold under proceedings in bankruptcy, and that William W. McGee, the bankrupt, had purchased them; that the lands were afterwards resold for the payment of a balance of purchase money, and were again purchased by the said McGee; and that his assignee in bankruptcy claimed that there was still a balance of the purchase money upon the resale due him. But to this bill John Q. McGee is not made a defendant. Under this bill an account of liens and of the real estate of William W. McGee was taken, and the commissioner reported William W. McGee as the owner of all of these three tracts of land. At the taking of this account, William W McGee was present, but never suggested that these lands did not belong to him. At April term, 1883, this account was confirmed, and a decree was rendered for the sale of said lands. The sale, after due advertisement of the time and place thereof, was made on the 18th June, 1883, when the complainant J. B. Johnson became the purchaser at the price of $550. He complied with the terms of sale by paying to the commissioners the $118.35 required in cash, and executing his three bonds, with security, for the deferred payments. On the I8th day of June, 1884, the purchaser paid off the first of these bonds to the receivers in the causes, who paid off the judgment of Thomas Steel in full, and paid the residue to Hartwell Alderman, assignee in bankruptcy of said William W. McGee. At this sale John Q. McGee, one of the appellants, was present, but made no objection, and it was subsequently confirmed by the court. Whereupon the said John Q. McGee, T. J. McGee, and William W. McGee filed a petition, which they asked might be treated as a cross-bill, and to this petition all the before-mentioned judgment creditors and all other creditors of William W. McGee are asked to be made defendants. In this petition John Q. McGee and T. J. McGee averred that the said William W. McGee sold and conveyed to the said.lohn Q. McGee, on the 1st day of March, 1878, a tract of 93 acres, a parcel of the land sold by the commissioners, as above stated; and that the deed therefor was duly recorded in the clerk's office of Carroll county on the 3d of October, 1882; and the "petitioner T. J. McGee states that on the 14th of November, 1882, said W. W. McGee conveyed to nim a tract of thirty acres of said land, the deed for which was recorded in the said clerk's office on the day it bears date. They aver further, however, that they became...