Simmons v. Lyles
| Citation | 68 Va. 922 |
| Court | Supreme Court of Virginia |
| Decision Date | 07 December 1876 |
| Parties | SIMMONS v. LYLES & als. |
I. A vendor of land, who has retained the title, files a bill against the widow and infant children of the vendee, for a sale of the land to satisfy his debt. The widow answers claiming dower in the land subject to the vendor's lien. Judgment creditors of the vendee may make themselves parties to the cause, and have the land, subject to the vendor's lien and the widow's dower, applied to the payment of their debts.
II. In such case the debt of the vendor is ascertained, and a commissioner is appointed to sell the land. He reports that a friend of the widow and children of the vendee has paid to the vendor his debt, and therefore he did not sell the land. The vendor then ceases to be interested in the case, and it becomes the suit of the creditors of the vendee.
III. In such a case a commissioner is directed to settle the account of the administrator of the vendee, to take an account of the vendee's debts and their priorities, and also of the present value of the widow's dower in the land; and before the commissioner makes report the court decrees a sale of the land. HELD:
1. It was premature to decree a sale of the land before the debts of the vendee and their priorities were ascertained, and a settlement of the administration account was made.
2. It was also error to decree a sale of the land until the widow's dower was assigned to her in kind, or it was ascertained that it could not be so assigned, and a moneyed compensation to her in lieu of her dower had been ascertained.
IV. A widow is entitled, as against creditors of her husband, by lien created since her marriage, to have her dower in his real estate assigned in kind, if it can be done, without regard to its effect upon the interest of his creditors. If from the nature of the property, or of the husband's interest in it, the dower cannot be assigned in kind, the court may sell the whole property, and make to her a moneyed compensation.
V. In this case the vendor having acquiesced in the decree for the payment of the amount ascertained to be due to him, and received the money; upon appeal by the widow and children of the vendee from a subsequent decree for the sale of the land for the payment of creditors, the appeal does not bring up the first decree, so as to entitle him as an appellee to have that first decree reviewed and reversed for error against him.
In July 1868 James Jamieson filed his bill in the circuit court of Danville, alleging in substance that, in 1862, he had sold a lot of land, improved by valuable houses upon it, and situate in the said town of Danville, at public auction, for one-half cash, and the balance by bonds at one and two years retaining the title as security for the payment of the purchase money; that William T. Simmons became the purchaser and paid the half cash, and gave his bonds at one and two years for the residue of the purchase money, each bond being for $2,062.50, with J. M. Walker and H. W. Cole as his sureties; that Simmons was dead, and his estate insolvent that said Walker was his administrator; that the said bonds were due, and had not been paid, except a small sum of $ that Mary A. Simmons was his widow, and she and her infant children were in possession of the said lot of land and houses. And making the said Walker, as administrator and also as surety, the said widow and infant children, and the other surety, Cole, parties defendant to the bill, prayed that unless the whole balance of purchase money, according to the face of the two bonds, with interest, were fully paid off before a day to be given by the court, the said lot of land and houses might be sold, and the proceeds subjected to the payment of the said bonds, and for general relief, & c.
The cause was proceeded in against the said Walker as administrator, & c., as an absent defendant by publication, and the bill taken for confessed as to him and the other surety, Cole. The widow answered the bill sometime prior to the 13th March 1869, and admitted the allegations of the bill to be generally true, but said that one hundred dollars had been paid on said bonds; and she insisted that the purchase money of the house was, by the terms of the contract of sale, payablein confederate money, and ought to be scaled accordingly. She also claimed her dower in the land to be assigned to her before any sale of the property, and to be allowed the value of permanent improvements put upon the land, and submitted her rights to the protection of the court. Richard W. Lyles was her counsel, and signed this answer as such counsel, and he was also appointed guardian ad litem for the infant defendants, and filed their answer to the bill.
The only real question in controversy in this suit was, whether the purchase money was liable to be considered and scaled as confederate money. Accordingly at the March term, 1869, the court ordered an account to be taken of the real amount of purchase money remaining due to the complainant, with any special statements required by any of the parties, & c.
No report having been made in obedience to this order, at the March term 1870 the said Richard W. Lyles filed his petition in the cause, alleging that he was a creditor of the said William T. Simmons, deceased, by two judgments, and by virtue of his judgments had a lien on the land, the subject of the suit; and admitting that his judgment lien was subordinate to the vendor's lien of the complainant, Jamieson, and to the widow's dower, he claimed that the surplus, after satisfying the vendor's lien and the widow's dower, was liable to the payment of his judgments; that another suit was pending in the same court between the said Lyles and one Cheek, Tredway and other defendants, in which said Lyles was seeking to subject other lands of the said Simmons to the payment of his said judgments, and that the two suits ought to be heard together; and praying to be admitted a party to the suit of Jamieson in respect of his interest.
Upon the hearing of this petition, the court, March term 1870, admitted the said Lyles as a defendant in this suit, and displaced him as guardian ad litem for the infants aforesaid, and appointed J. T. Elam guardian ad litem in his stead; and said Lyles having filed his answer in this suit, in which he repeated in substance only the allegations of his petition aforesaid, the court, upon the hearing of the answer, ordered that in addition to the matters required to be reported by the previous order, the commissioner should also ascertain and report in what kind of money the purchase money was payable, and what lands belonging to said W. T. Simmons, the judgments of said Lyles constitute a lien on, if any, and in what order; and what was the actual value of the property at the time of the sale thereof by Jamieson to Simmons; and what is the present value thereof. No order was ever made for hearing this suit with the other suit, and they were not tried together.
At the August term, 1870, the cause was heard upon the report of the commissioner Blackwell and exceptions thereto, made in obedience to the orders of March 1869 and March 1870, and, without deciding any other question in the cause, the court ordered further accounts to be taken, viz: of all the transactions of Walker as administrator of Simmons; and of all the indebtedness of said Simmons at the time of his death, classifying said debts according to their respective priorities, and showing whether said debts were individual debts, or debts due by him as a partner with others, with any other matter required by any of the parties to be specially stated.
At the March term 1871, the court (without waiting for the report ordered at the August term 1870) heard the cause upon the above mentioned report of commissioner Blackwell (filed July 22, 1870), and overruled the exceptions taken thereto, and decided that the purchase money was payable in confederate money, and that the bonds ought to be scaled down to the sum of $106.08, with interest from the 29th of July 1870; and decreed that unless the heirs of said Simmons, or some one for...
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