Peiece v. Geaham

• Decision Date: 16 August 1888
• Citation: 7 S.E. 189,85 Va. 227
• Parties: Peiece et al. v. Geaham et al.
• Court: Virginia Supreme Court

7 S.E. 189

(85 Va. 227)

Peiece et al.

v.Geaham et al.

Supreme Court of Appeals of Virginia.

August 16, 1888.

1. executors and administrators—sales under order op court—jurisdiction.

Code Va. § 2665, making all the real estate of any person who may die intestate, or which, though he die testate, is not charged with the payment of his debts, assets for the payment of debts in the order in which personalty is to be applied, does not authorize an executor, who is granted no powers as to the realty under the will, to maintain a suit against the heirs to have the realty sold to pay debts, nor does it authorize him to bring a bill as next friend to the heirs, joining the widow, to compel the creditors to sell the realty to pay debts. 3. Same—Defect in Jurisdiction—Bill of Review.

While the court had no jurisdiction to maintain such suit, it had jurisdiction of the subject-matter and the parties, and its decree is binding, though erroneous, on them until reversed, and a bill of review will lie to vacate it.

3. Same—Sale of Widow's Interest—Consent Obtained bt Threats.

The widow, having been induced to consent to a sale of her interest in connection with that of the heirs, by threats that the purchasers of the children's land would make her surroundings uncomfortable, is entitled also to have the sale of her interest set aside.

4. Same—Rights of Purchaser—Executor as Purchaser.

The decree ordered a public sale, but the sale was made privately. The decree ordered as much of the land sold as was necessary to pay the debts, which by an account were shown to be $8,000, whereas 135, 000 worth of land was sold. Held, that the purchaser could claim no rights to protection; especially where it appeared that the executor, who had instituted the suit, and managed it all the way through by his own counsel, was in fact the purchaser, though not the nominal bidder.

Richardson, J., dissenting.

Appeal from circuit court, Wythe county.

Blair, Boiling, Henry & Graham, for appellants. Peiree, Walker & Walker, for appellees.

Lacy, J This is an appeal from a decree of the circuit court of Wythe county, rendered on the 21st day of December, 1887. The history of this controversy, as it is set forth in the transcript before us, is briefly stated as follows: On the 6th day of June, 1875, William Peirce, of the county of Wythe, died, leaving the appellant, Emaline Peirce, and their five infant children, the other appellants, surviving him; the oldest child at that time being in his tenth year, and the youngest in his third year. His will was duly probated, by which he gave to" his wife one-third of his property for life. The residue, including the remainder at the death of his wife, he divided equally among his children; and by his will appointed two of his friends, John C. Roper and David P. Graham, his executors; but the latter, who was his relative, alone qualified as executor. The real estate of the said William Peirce consisted of 2, 100 acres by a recent survey, and is very valuable. On the 31st day of January, 1876, seven months after the death of the said William Peirce, Graham, the said executor, instituted a suit in chancery, in which the widow and children were joined as plaintiffs, against William Gibboney and others, creditors of the estate of the said Peirce; the object of this suit being to sell the real estate to pay debts of the estate. An account was ordered in the cause in vacation, on the 4th day of August, 1876, of the transactions of the executor, and of the debts of the estate. The latter appeared to be, principal and interest, $8,406.13. At the next ensuing term of the circuit court of Wythe, the bill was taken for confessed, and the report of the commissioner of the debts, etc., confirmed, and a further account ordered of the debts, and a commissioner appointed to sell, rent, or lease for a term of years the real estate in the bill mentioned. This commissioner was shortly removed, and another appointed at the March term, 1879, to execute former decrees in the cause, to sell the lands, or so much as might be necessary to pay the debts, subject to the widow's dower; $800 to be required in cash, and the residue upon a credit of one, two, and three years' equal installments. This was at the March term, 1879. In October following, anbther bill was filed by the executor against the widow and her infant children, having the same object as the first; and, at the December term following, the bill was taken for confessed as to all the defendants, and a guardian ad litem appointed, who filed a formal answer; and, at another day in the same term, another decree was rendered, by which the two causes were brought on to be heard together, and the same commissioner ordered to execute former decrees. At the March term following, 1880, a decree was rendered in the cause, confirming a sale in the mean time made, and referred to in the decree. A report of this sale, filed in the papers in the cause at sometime, undated and unindorsed, (which is objected to for that cause,) sets forth that this sale was made March, 1880, to "Messrs. Crockett & Co., i. e., to M. B. Tate, John W. Robinson, and James S. Crockett, " for $35,000, $2,000 in cash, and residue on a credit of one, two, and three years, and that in this sale the widow's dower was included by permission. At the March term, 1880, this sale was confirmed, and the widow's dower valued by report of commissioner at $7,824.40. By decree of the March term, 1881, the same commissioner was ordered to collect bonds and pay debts pro rata. At the March term, 1882, the guardian of the children was required to give bond in the penalty of $30,000. At the September term, 1882, the said commissioner was directed to make a deed to the purchasers of this land, to-wit, M. B. Tate, James S. Crockett, John W Robinson, D. P. Graham, R. C. Hoffman, and James Moore, who do business as the New River Iron Company, or such other name as they direct. And at the December term, 1883, it is recited that the said deed had been by the direction of the said persons made to "The Foster Falls Manufacturing Co." At the September term, 1886, a decree was rendered in the cause by which a report of the commissioner was received and confirmed; and, it appearing therein that $22,988.24 had been collected and disbursed, less $112.37, and that the residue of the purchase money had not been collected, but had been secured by a lien retained on the face of the deed made to the said "The Foster Falls Manufacturing Co., " as a lien in favor of the heirs of William Peirce, it was recommended that the said balance remain as it is, —that is, uncollected, —as a safe investment for the infant heirs, and by the decree it was so left; and the $112.37 in hand decreed to be paid over to John W. Robinson, guardian of the infant children of William Peirce, deceased, and the cause stricken from the docket; this decree being rendered, as stated, at the September term, 1886.

At rules, on the first Monday in February, 1887, the said Emaline Peirce, the widow of William Peirce, and the five children, Isaac, William, David, Martha, and James Peirce, the last four being still infants, suing by their mother, the said Emaline Peirce, as their next friend, filed their bill of review in the cause against M. B. Tate, James S. Crockett, John W. Robinson, D. P. Graham, R. C. Hoffman, James Moore, "The Foster Falls Manufacturing Co., " and W. C. Bullett, in which, after setting forth the foregoing, they ask that the several decrees heretofore rendered in the cause, as stated above, may be reviewed, reversed, and annulled, and that the sale of the land already mentioned, to D. P. Graham and others, be set aside and annulled; and, these having effected a sale of this property to the said W. C. Bullett at the price of $150,000, that this sale be enforced as against Bullett for their benefit. The complainants in this bill set forth many errors in the record of the said suits to their prejudice, whereby their inheritance was lost to them, and characterize the proceedings an anomaly! ill chancery pleading and practice. These errors are set forth at great length, under numerous heads. They are sub-tantially as follows: That the suit by the executor, who had no powers granted under the will concerning the land, the same being devised to the wife and children of the testator, could not be maintained to sell the lands of the infants, and because the lands were subjected to pay the debts in advance of the personal assets; that the infants were throughout the proceedings unrepresented by counsel, except so far as their real adversary, the executor, supplied his own counsel; that there was no necessity to sell the lands to pay debts, no debts having been asserted against the estate, and no proof that the rents and profits would not pay the debts in five years if such had been asserted against the estate; that the land was decreed to be sold publicly, and was in fact sold at a sacrifice privately; that the land was advertised as containing 1, 500 acres, when it in fact contained 2, 100 acres, as the records of the county showed; that the decree directed so much land only to be sold as was necessary to pay the debts, whereas $35,000 worth of land was sold to pay a total indebtedness of some $8,000, and that this was a very great sacrifice, as is well known and can be established by proof, the testator havingrefused $75,000 for the land, and an actual sale had been made pendente lite, bringing $150,000 for the land, and this before the purchase money had been paid under the first sale; that the executor, the artificer who wrought all this injury, who was their father's executor, their next friend, who had their mother removed as their guardian, and had his brother-in-law appointed in her stead, —that this multiform friend was in fact and substance the purchaser of their...