Poindexter v. Burwell

• Decision Date: 08 October 1886
• Citation: 82 Va. 507
• Parties: POINDEXTER v. BURWELL AND ALS.
• Court: Virginia Supreme Court

82 Va. 507

POINDEXTER v. BURWELL AND ALS.

Supreme Court of Appeals of Virginia.

October 8, 1886

Argued at Richmond. Decided at Staunton.

Appeal from decree of the chancery court of the city of Richmond pronounced May 14, 1884, in the cause of W. P. Burwell against Charles Poindexter and others. The original bill was filed in July, 1880, against Charles Poindexter as trustee and in his own right, as the only defendant. An amended bill filed in August, 1882, made additional defendants of George Alfred, William M., John E., and Thomas Poindexter, the devisees under the will of their father, James H. Poindexter deceased. The will of said James H. Poindexter was admitted to probate in June, 1867, in the county court of Henrico county. By it the testator devised to his said six sons considerable real estate in and near Richmond, Va., and 620 acres in Navarro, and 1,920 acres in Johnson county, Texas. By deed dated June 3, 1873, duly recorded, Alfred Poindexter and wife conveyed all his interest under said will to J. A. Richardson, as trustee, to secure a negotiable note for $1,750.

By deed dated March 7, 1874, the said devisees conveyed all their several interests under said will to Charles Poindexter. This deed recites that the real estate devised to them under said will remained undivided; that they desired that it should be divided, so that each devisee might hold his share in severalty, and that deeds of trust had been given by some of the devisees incumbering their individual interests in the estate; and that it conveys all of said devisees' interests in said real estate to said Charles, in trust that he shall, in the manner deemed best by him, sell all or any of the property so conveyed to him, or raise money thereon by mortgage or otherwise, with full power to convey the property, and that out of the proceeds of such sales, " after first paying off the liens or incumbrances of all kinds upon the property hereby intended to be conveyed," he shall provide an annuity of $500 for their mother, Mrs. Sarah A. Poindexter, and divide the residue among the parties according to their several interests under the said will & c.

Default having been made as to the payment of said negotiable note, the trustee, Richardson, in pursuance of the deed of trust executed to him by Alfred Poindexter and wife, sold the entire interest of said Alfred under said will, and by deed dated October 15, 1874, conveyed the same to Charles Poindexter, as trustee, for the said devisees under the will of James H. Poindexter, deceased, including Charles himself, but excluding Alfred.

On the 14th day of December, 1874, a judgment was obtained by said William P. Burwell against Alfred Poindexter in the circuit court of the city of Richmond for $378.40, with interest thereon at six per cent. per annum from January 1, 1871, till paid, and $14.07 costs; and to enforce the same on the real estate of the judgment debtor in said city and vicinity, he filed his bill in chancery in the court below against said Charles Poindexter as trustee as aforesaid.

However, on the 13th of July, 1877, an agreement under seal was made between said Burwell and said Charles Poindexter, " acting as trustee under the deed of trust of March 7, 1874, for the devisees of James H. Poindexter, deceased," whereby said Burwell assigned said judgment to said Charles Poindexter for the benefit of himself and of the other devisees, except Alfred, and agreed to dismiss said chancery suit, " in consideration that said Charles Poindexter, as trustee as aforesaid, doth covenant and agree with the said Wm. P. Burwell that out of the proceeds of the sale of the lands in Johnson and Navarro counties, Texas, of which James H. Poindexter died seized and possessed, he will, as he receives it, pay one-sixth part to the said Burwell, after payment of whatever costs and expenses may be necessary to make the said lands salable, including the taxes, which the said Charles Poindexter, trustee, will proceed to pay as soon as possible; and that said payment of one-sixth part, to be made as aforesaid, shall be continued out of the proceeds of said lands until the amount of the judgment of the said Burwell against said Alfred Poindexter, as above described, including interest and costs, shall be fully paid."

Now, the bill and amended bill aforesaid were filed by Burwell for the enforcement of this agreement. The averments are that Charles Poindexter had the power under the trust deed of March 14, 1874, to bind by said agreement, not only his own interest, but the interests of all the other devisees in said Texas lands, and that he did bind the same; that nevertheless he had paid complainant nothing on said debt; that the Texas lands might have been sold at fair prices long ago and the debt paid, but that the trustee declined to sell when he had opportunity for doing so; that though no time is specified for the sale, yet such sale should have been made in a reasonable time which has elapsed already; that the trustee had no right to refuse a fair price for the land and hold it indefinitely unless he paid the complainant's claim; and that by his conduct aforesaid, said Charles Poindexter had made himself liable to complainant for his said debt. The prayer is that said Charles be required to pay the amount secured by the agreement aforesaid, with interest and costs, or, if not personally responsible therefor, that he be either required to sell the said Texas lands at once, or to convey to complainant enough of same to satisfy his debt, and for general relief.

Three of the defendants, to wit: James Poindexter and wife, and William M. Poindexter, were proceeded against as non-residents of this State by order of publication. Three of them, to wit: the appellants here, John E. and Thomas Poindexter, and the trustee, Charles Poindexter, filed their demurrers and answers to the bill and amended bill. George H. Poindexter did not appear. The answer of Charles admits the assignment of the judgment, the dismission of the chancery suit, and the execution of the agreement; contends that that agreement only accomplished the putting of Burwell in the place of Alfred Poindexter as to the proceeds of the Texas lands, whatever that place was, and denies that it made either himself or his interest in the Texas lands liable for said judgment.

The joint answer of Thomas and John E. Poindexter denies that Alfred owned any interest in the lands devised by their father, at the date of said judgment or since, his interest therein having passed to Charles, as trustee, under the sale thereof made by Trustee Richardson, as aforesaid; denies that Charles, as such trustee, or otherwise, had the power to bind either of these respondents or any of the said devisees, except himself, by the agreement to pay Burwell the amount of said judgment, either out of the Texas lands or otherwise; and denies also that the chancery court had jurisdiction of this case, because the lands proposed to be sold are situated in the State of Texas, and one of the owners thereof is a non-resident of Virginia.

The cause coming on for hearing May 14, 1884, the said chancery court, by its decree then entered, held that the complainant's claim was a proper charge under the agreement of July 13, 1877, between him and Charles Poindexter, as trustee, upon one-sixth of the proceeds of the sale of the lands in the counties of Johnson and Navarro, in the State of Texas, of which James H. Poindexter died seized and possessed; but without deciding at that time whether the one-sixth interest so charged is to be considered as the share of Alfred Poindexter in the lands conveyed to Charles Poindexter, trustee, or the interest of said Charles therein. And being further of opinion that the plaintiff had then a right to demand a sale of said lands, or of so much thereof as will pay his claim, interest and costs, and that said Charles Poindexter, trustee, in whom the...