Peck v. Chambers

• Decision Date: 11 December 1897
• Citation: 28 S.E. 706,44 W.Va. 270
• Parties: PECK v. CHAMBERS.
• Court: West Virginia Supreme Court

28 S.E. 706

44 W.Va. 270

PECK

v.CHAMBERS.

Supreme Court of Appeals of West Virginia.

Dec. 11, 1897.

Process—Return of Service —Conclusiveness —Judicial Sale—Rights of Purchaser.

1. Where the original process to commence a suit is returned not executed, it may be served by any credible person, and the return of such person, verified by his affidavit, shall be evidence of the manner and time of service; but a person, in order to be competent to serve and return such process, must be a credible person.

2. Such return made by a private person is not conclusive, and may be shown to be false by direct attack, and the facts therein stated may be controverted by evidence.

3. A purchaser at a judicial sale is not protected by section 8, c. 132, Code, when the record of the suit shows that necessary parties interested in the property sold were not before the court when said sale was ordered and confirmed.

(Syllabus by the Court.)

Appeal from circuit court, Logan county; Doolittle, Judge.

Suit by J. A. Peck against A. C. Chambers. L. D. Chambers, and R. N. French to set aside a deed. Decree for plaintiff. From a refusal to set aside the decree, French appeals. Reversed.

Samuel L. Williams, for appellant.

Vinson & Thompson, for appellees.

ENGLISH, P. On the 5th day of October, 1885, L. D. Chambers, as commissioner of school lands for Logan county, offered for sale at public auction, in pursuance of a decree of the circuit court of Logan county, three tracts of waste and unappropriated lands on Rum creek, in said county, one containing 661 acres, one of 1, 216 2/3 acres, and the other 440 acres, at which sale one A. C. Chambers became the purchaser thereof at $100, $85, and $125, respectively, which sales were reported by said commissioner to said circuit court, and confirmed at the October term, 1886. One-third of the purchase money was paid in cash, and for the residue three notes were executed by said purchaser, with J. A. Peck and L. D. Chambers, Jr., as sureties. The money with which to make the cash payment was furnished by said Peck to A. C. Chambers, who, in consideration of said sum and $55 to be paid by said Peck on the purchase monaid Peck. On November 27, 1886, and befoey, sold one undivided half of said lands to sre said deferred installments were paid, said A. C. Chambers conveyed by deed to R. N. French all of his interest in said three tracts for a certain sum in cash and the assumption by French of theunpaid, purchase money. J. A. Peck paid said sum of $55 on the purchase money, and, as security for said Chambers, paid the residue of the purchase money. At September rules, 1887, said Peck filed his bill in equity against A. C Chambers, L. D. Chambers, commissioner of school lands, and R. N. French, alleging these facts, and claiming that the sale from A. C. Chambers to R. N. French was void, and also claiming a lien on the Interest so conveyed to said French for the sum of money he was caused to pay for said A. C. Chambers as his surety, and praying that said deed to R. N. French be declared void and set aside, and that the interest in said tracts of land might be sold to reimburse the sum he paid thereon as surety, etc. The summons to answer said bill was served by the sheriff of Logan county on A. C. Chambers and L. D. Chambers, commissioner, etc., and there was a return of service of said summons on petitioner, purporting to have been made and verified by a private person, and not by an officer. Neither of said defendants appeared to said bill, and the cause was heard on the bill taken for confessed, and a decree was rendered on the 4th of October, 1887, granting the relief prayed for, vacating the sale and deed to said French for the one-half of said land, and giving the plaintiff a lien thereon for $173, decreeing a sale of said interest, and requiring L. D. Chambers to convey said land to A. C. Chambers and J. A. Peck. Pursuant to this decree said half interest was sold by a special commissioner, and purchased by said Peck for $413.44, which sale was confirmed by a decree entered on the 2d day of April, 1888. On July 20, 1891, said defendants filed in open court their Joint and several notice of motion, with proof of service, to vacate and set aside the decree aforesaid rendered on the bill taken for confessed, for certain errors therein pointed out; and on July 29, 1891, said decree was set aside, vacated, and annulled, and the cause reinstated on the docket for further proceedings. On August 1, 1891, said French filed his answer and cross bill, in which, after denying some of the allegations of the bill, he alleged that his purchase of one-half interest in said three tracts was for a valuable consideration, and in good faith, and denied that the plaintiff had any Hen by reason of having paid a part of the purchase money to the state on account of his suretyship for the purchaser. He also denied that the summons to answer the bill of the plaintiff had been served upon him by the private person who made a return of service thereof, and verified the same, or by any other person, and averred that he had no notice or knowledge whatever of the institution and pendency of said suit till long after the decree and sale, and as soon as he learned of such suit he promptly engaged counsel to take the necessary legal steps to place him in statu quo. Depositions were taken tending to show that said summons was never served upon French, and that he was a nonresident of the state at the time said person stated in his return he had served it upon said French, and that he had no notice or knowledge of the pendency of said suit; and also that said French's purchase of one-half of said land was for a valuable consideration, and in good faith. The cause was heard, and the court decreed that the return of service of the summons on French, made and verified by a private person, under the statute, was conclusive on said French, and could not be impeached or denied, and refused to set aside the sale of the one-half of said interest to the plaintiff, Peck, by said special commissioner under the decree, holding that such sale was protected under section 8, c. 132, Code, notwithstanding the plaintiff himself was the purchaser. The foregoing statement of facts is, in substance, taken from the petition of the appellant, and is adopted for the reason that it is thought to be concise, fair, and accurate in its details; and from said last-named decree French obtained this appeal.

The first error assigned and relied upon by the appellant is that "the cour...