Stone v. Tyree.
| Decision Date | 11 February 1888 |
| Citation | 30 W.Va. 687 |
| Parties | Stone v. Tyree. |
| Court | West Virginia Supreme Court |
Where a bill in chancery is riled the lis pendens relates back to the service of the subpoena, and not to the day on which the subpoena was issued. (p. 699.)
If the owner of real estate, whether he has the legal title in him or not, permit such real estate to be sold in his presence by one who claims he has full power and authority to dispose of the same, and does not then assert his claim, but stands by and permits an innocent purchaser to buy such land, he is estopped thereafter from claiming such land of such innocent purchaser on the ground that the person of whom he purchased had no authority to sell such land. (p. 701.)
In such a case a court of equity would compel the owner of the land, or the person having really the authority to convey it, to vest the legal title of such land in such innocent purchaser who bad paid the full price of the land according to the terms of his purchase. (p. 701-2.)
Statement of the case by Green, Judge:
This was a chancery suit brought in the Circuit Court of Fayette county by Jacob W. Stone and Maggie C, his wife, M. F. Brown, and Alice Jones, widow; (M. F. Brown, and the female plaintiffs, being children, legatees, and devisees of Samuel Brown, of Alleghany county, Va., and all the plaintiffs non-residents of the State.) against William M. Tyree, a resident of said Fayette county, in this State, Robert L. Parish, administrator de bonis non with the will annexed of Samuel Brown, and against the widow and five other children, devisees and legatees of said Samuel Brown, and the husbands of the female defendants, and Charles M. Gray, a son of Rachel Brown, another child, legatee and devisee of Samuel Brown, who had died leaving but this child, who had attained his majority. All of the plaintiffs and of the defendants except William M. Tyree were non-residents of this State. As this cause was decided on admissions in the pleadings, and on exhibits filed with them, no depositions or other proofs being taken, I will state the facts proven in the cause, distinguishing in stating them the pleadings and such statements in the bill and answer filed as were proven by the exhibits filed, or were undisputed by the pleadings, from the statements entirely unsustained by any evidence.
The will of Samuel Brown is filed with the bill; the second clause in it is as follows: "It is my will and desire that all my estate, both real and personal, (except my negroes,) be sold by my executors as soon after my death as shall be conducive to the interest of my estate, and in accordance with the law governing decedents' estates." The third clause in this will provided "that the net proceeds of the sale of this property, real and personal, be equally divided among all my children and wife, she to take a child's part." Thompson McCallister and Andrew Dameron were appointed his executors. This will was dated February 27, 1861, but a codicil was added to it April 27, 1861, directing that his real estate should not be sold in less than five years, and making some other provisions for his wife, and providing that if she should elect to take under the law, and not under the will and codicil, then that all the provisions for her in the will and codicil should be null and void. This will and codicil were duly admitted to probate June, 1861, m the County Court of Alleghany county, Va., where the testator lived and died.
At the November term, 1861, of said court the widow renounced the provisions of this will and codicil, and her dower was assigned her. In the meantime the executors of the will had qualified as such at the Jane term of such court, and made sale of the personal property of the testator. These executors died, one in 1870, and the other in 1882, without either of them having sold the real estate of Samuel Brown, the testator; which real estate consisted of the testator's home farm of 572| acres in Alleghany county, Va., a tract of timber land in said county and a tract of land in Fayette county, W. Va., of 376 acres.
At the May term, 1882, of the County Court of Alleghany county, Va., letters of administration de bonis non with the will annexed were granted to Robert L. Parrish on the estate of Samuel Brown, deceased. No one ever qualified as executor of Samuel Brown, or as his administrator with the will annexed, in WestVirginia, where the tract of 376 acres was situated. But on October 1, 1884, this will of Samuel Brown was duly admitted to probate in Fayette county, W. Va., and on the 7th day of October, 1884, Robert L. Parrish was appointed by the County Court of Fayette county administrator de bonis non with the will annexed of Samuel Brown, and duly qualified as such.
In the meantime, after the death of Thompson McCallister, one of the executors, but before the death of the other exe^ cutor, Andrew Dameron, the widow and all the devisees and legatees of Samuel Brown, on March 6, 1884, entered into a written agreement under seal, one of the provisions of which was as follows: "The said Sarah W. Brown, widow as aforesaid, doth hereby further agree that whenever a majority of the parties interested in said estate shall deem it advisable to make sale of said real estate, as provided in testator's will, then the whole estate shall be sold together, including that portion thereof which has heretofore been as- signed to said widow as and for her dower therein, and the said widow is to take in lieu thereof a commutation in cash, or to receive the interest on one third of the aggregate of sales of such realty annually, whichever she may prefer and elect." Of the persons owning the original shares of this estate, seven out of the nine, about June 16, 1883, in pursuance of this agreement, gave Robert L. Parrish, who in the meantime had qualified as administrator de bonis non with the will annexed, in the County Court of Alleghany county, written notice to sell all the lands of which Samuel Brown died seized as soon as practicable. Among the parties so giving this notice were all the plaintiffs in this chancery suit. The notice signed by them was as follows:
In obedience to this request, Robert L. Parrish, after advertising for thirty days by hand-bills extensively circulated and posted, and also in the Richmond Dispatch, Stanton Spectator, Stanton Vindicator, and Alleghany Tribune, exposed all the lands of the testator for sale by public auction, in front of the Mansion House, near Callaghan's, in Alleghany county, W. Va., on August 25, 1883. The lands so advertised and publicly sold were the tracts of land before mentioned, including said tract of land in Fayette county, W. Va. The terms of the sale were one third of the purchase-money in hand, and the residue upon a credit of one and two years, in equal instalments, purchasers to execute bonds with approved personal security bearing interest from date; and the legal title to be retained as further security until all the purchase-money was paid. At this sale the home-farm was purchased by Mrs. Emma V. Brown, a legatee and distributee, wife of William M. Tyree, at the price of $6,500.00. The timbered tract of land in Alleghany county, W. Va., was purchased by one Huddleston, for.$750.00; and the tract of land in Fayette county, W. Va., was purchased by the defendants in this suit, William M. Tyree and others, for $1,128.00; and the terms of sale were complied with by all the purchasers.
The prices obtained were the full and fair value of the several parcels of land when sold, but some of the legatees and devisees of Samuel Brown were dissatisfied with the price obtained for the home-place; but all were perfectly satisfied with the prices obtained for the other two tracts, including the Fayette county, W. Va., tract, purchased by William M. Tyree. Among those dissatisfied with the price obtained for the home-farm were all the plaintiffs in the present suit; and they threatened to bring a suit to set aside the sale of the home-farm to one of the legatees and devisees, Emma V. Brown. Under these circumstances, Robert L. Parrish, administrator de bonis non with the will annexed of Samuel Brown, brought a suit in the Circuit Court of Alleghany county against all the plaintiffs in this suit, as well as all others interested in the estate of Samuel Brown, asking the direction of the court as to the distribution of the cash-payment he had received on the sale of these lands, and for a general settlement of his accounts as administrator de bonis non with the will annexed.
The plaintiffs in the suit before us and one other of the legatees and devisees of Samuel Brown filed an answer and cross bill, in which they admit the facts abov^e stated, but say that when they signed the above notice dated June 16, 1888, requesting the plaintiff to sell the lands of said Samuel Brown at the earliest practicable day, they did so with the understanding that the "home-farm" should be divided into parcels and sold in that way. They say they believe that both the timber-tract of land in Alleghany county, Va., and the tract of land in Fayette county sold for a. sufficient sum, but deny that $6,500.00 was a fair price for the home-farm, and that William M. Brown, who bought the land for his wife, Emma V. Brown, one of the devisees and legatees of Samuel Brown, prevented persons from bidding for it when it was first offered in parts by making known that he wished to buy the whole farm, and if any person bid for a part of it when it was...
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