Richardson v. Seevebs' Adm'r

• Citation: 84 Va. 259,4 S.E. 712
• Parties: Richardson et al. v. Seevebs' Adm'r.
• Decision Date: 05 January 1888
• Court: Supreme Court of Virginia

4 S.E. 712

84 Va. 259

Richardson et al.

v.Seevebs' Adm'r.

Supreme Court of Appeals of Virginia.

January 5, 1888.

1. Bankruptcy—Jukisdiction—Impeachment or Decree.

It appeared affirmatively of record tliat the United States district court sitting in bankruptcy upon the application of one person had no jurisdiction over the lands of another person not surrendered in that court, and against which the bankrupt had no claim. Held, that it was therefore incompetent to make a decree fixing and attaching liens upon the latter; and its judgment to that effect was void and properly so held by the circuit court, when such decree was called in question by a person not a party to the bankruptcy proceedings.

2. Gift—Advancement.

An agreement by a father-in-law with his son-in-law to the effect that a part of certain purchase money should be retained by the latter as follows: "And one other full fourth part thereof, with interest from * * * was to be retained by the said [son-in-law] for the benefit of his wife and children as an advancement by said [father-in-law, "] held to create no trust in the son-in-law, but to bo a gint for his benefit, because of his wife and children.

Appeal from circuit court, Clarke county.

John D. Richardson and others appeal from a decree entered in a suit against the administrator of Henry Seevers.

M. McCormick and S. J. C. Moore, for appellants. A. R. Pendleton, McDonald & Moore, and Holmes Conrad, for appellee.

Lacy, J. This is an appeal from two decrees of the circuit court of Clarke county, rendered, respectively, on the sixteenth day of May, 1884, and the thirteenth day of October, 1885. The suit was brought to enforce a judgment lien in favor of the appellee against the lands of JohnD. Richardson, deceased. An account of liens was ordered, taken, and reported to the court, and among these a lien in favor of the children of John D. Richardson for a large amount, aggregating, principal and interest, $21,321.80, as of June 1, 1883, and it is concerning this lien, reported by the commissioner for the consideration of the court, that this controversy has arisen. The history of this claim on the part of the appellants, the children of John D. Richardson, is as follows: On the second day of May, 1848, the father-in-law of John D. Richardson, deceased, made an agreement with the said John D. Richardson and one T. P. Pendleton, another son-in-law, that the said father-in-law, who was John Richardson, agreed to sell to the said sons-in-law large property owned by him, consisting of 870 acres of land and valuable personal property of large amount, ata valuation to be made by certain named persons, which should be the purchase price of the said property. And then the said T. P. Pendleton and John D. Richardson, sons-in-law of the said John Richardson, were first to pay all the debts of the said John Richardson, including.$6,000 to be paid to the wife of the said John Richardson, with interest from the date of the contract, to-wit, the second day of May, 1848, to be secured on the lands sold; $6,000 to be paid to T. P. Pendleton, with interest from second day of May, 1848; "and it was further agreed that after the payment of all the debts and liabilities of the said John Richardson out of the residue of the consideration as aforesaid, one full fourth part thereof, with interest from the said second day of May, 1848, was to be retained and held by the said Thornton P. Pendleton for the benefit of his wife and children, as an advancement by said John Richardson to them; and one other full fourth part thereof, with interest from the second day of May, 1848, was to be retained by the said John D. Richardson for the benefit of his wife and children, as an advancement by said John Richardson to them;" and the other two-fourths to be paid by the said sons-in-law to the said John Richardson, on request, with interest thereon from the said second day of May, 1848. The said contract has been lost or destroyed, and is not produced in the record; but the foregoing, taken from the will of John Richardson, is admitted on all hands to be correct, its terms being recited in full and reiterated in the will. John Richardson died, and T. P. Pendleton and John D. Richardson divided the land. T. P. Pendleton subsequently filed his petition in bankruptcy in the United States district court for the Western district of Virginia, in which court all of his property was surrendered.

On the sixteenth day of December, 1882, the said court rendered a decree, (In re Pendleton,) by which, after proceeding to ascertain and adjudge the liens resting upon the real estate of T. P. Pendleton, bankrupt, involved in the cause, being about 435 acres (as the said decree recites) of the Fairfield estate, and upon the remaining portion of said Fairfield estate, being about 435 acres, owned by J. D. Richardson, did order and decree that the said liens binding said two tracts of land were as in the order stated therein. In the third class placing a lien and charge in favor of T. P. Pendleton's wife and children, the said wife and children taking share and share alike, upon the said land at the amount of $20,462.26, with interest on $6,867.22, part thereof, from April 30, 1881, until paid. And the court further adjudged that the shares of the Fairfield estate aforesaid are subject to a lien and charge in favor of the children of J. D. Richardson, on like principles, for $20,462.26, with interest on $6,867.22, part thereof, from April 30, 1881, until paid. And that these amounts severally decreed were liens upon the whole John Richardson land of 870 acres, by virtue of the said contract of May 2, 1848, but that in the enforcement of the same the wife and children of T. P. Pendleton should first subject the T. P. Pendleton share, and the children of John D. Richardson should first subject the John D. Richardson share, of the said tract of land. And having taken an account of liens on John D. Richardson's land, authorized and empowered the several parties to whom moneys were to be paid under the order to proceed to enforce their claims against the lands of said John D. Richardson, known as a part of Fairfield, as upon a judgment of that court.

This lien so established having been reported by the commissioner in this cause for the judgment of the circuit court of Clarke county, with the remark that "your commissioner does not feel competent to decide the question of the jurisdiction of that court as affecting the questions now before your honorable court;" and exception being taken, the circuit court of Clarke herein held, by decree in the cause on the sixteenth of December, 1884, "that the decree of December 16, 1882, of the United States district court in Re T. P. Pendleton, Bankrupt, filed as an exhibit in this cause, is not an adjudication which is bind-ing or an estoppel upon the parties to this cause, and is not, therefore, binding to establish any lien in favor of the wife and children of T. P. Pendleton, or the children of J. D. Richardson, on the lands of J. D. Richardson involved in this cause. J3ut the court is further of opinion that under the will of John Richardson, (and his agreeement with T. P. Pendleton and J. D. Richardson,) and under the deed of the executrix of John Richardson, a lien exists, and is now especially in favor of the children, of one-fourth, after the payment of John Richardson's debts, as against the lands only of said.1. D. Richardson, and not as against the share of Fairfield, received by T. P. Pendleton; the court being of opinion that the wife and children of T. P. Pendleton have no lien under the said papers on the share of Fairfield, received and held (and herein involved) by J. D. Richardson; and ordered in this cause an account of the liens upon the lands of J. D. Richardson involved in this cause; an account of the children of J. D. Richardson entitled to a lien upon his lands; the amount of said lien, and particularly whether the same shall bear interest, and from and to what dates; the court, reserving its opinion as to said interest, adjudging the principal of this lien in favor of J. D. Richardson's children, in conformity to the said commissioner's report, to be $t), 867.22 as of May, 1848.

Subsequently the court, upon the coming in of this report, adjudged the interest upon this lien in favor of the children of J. D. Richardson, not to run from May 2, 1848, the date of the contract, but that it should run only from the date of the decrees sequestering the Fairfield tract for the benefit of the lien creditors of said John D. Richardson, to-wit, from the third day of November, 1883; established the liens on the said John D. Richardson's lands, so far as they are set forth in the commissioners report; reserved certain questions, and ordered a further account and report as to them. From these two decrees the appeal is taken here by the children of John D. Richardson, because in the first place, the decree of the United States court is set aside; and, in the second place, because the interest is disallowed them on their claim from May 2, 1848, the date of the contract between their father and their grandfather, and the third day of November, 1883, the date of the decrees sequestering the lands of their said father, J. D. Richardson, to the liens of his creditors. And under rule 9 of this court the appellee, Seevers' administrator, assigns errors, first, that there is no valid lien existing at all upon the lands of J. D. Richardson in favor of his children; that John Richardson gave this to his son-in-law as an advancement on account of his wife and children, and never intended as he never provided that it should be paid by J. D. Richardson to any person, but to be kept by him as his own property.

The first question to be considered is whether the circuit court erred in disregarding and treating as null...