Strayer v. Long

• Decision Date: 31 December 1887
• Citation: 3 S.E. 372,83 Va. 715
• Parties: Strayer and Wife v. Long.
• Court: Virginia Supreme Court

3 S.E. 372

83 Va. 715

Strayer and Wife

v.Long.

Supreme Court of Appeals of Virginia.

Dec. 31, 1887

1. Creditors' Bill—Accounting—Notice to Minors.

In a creditors' bill to set aside a deed of settlement executed to a trustee by the debtor for the benefit of his wife, and her children, who are minors, it is erroneous to proceed to the taking of the accounts where the notice was served on such minors by publication; the guardian ad litem not being named therein, nor otherwise served with notice.

2. Same—Sale—Order oF Property Taken.

Before a sale of the defendant's real property, in a creditors' bill, may be decreed, the rents and profits of lands in the hands of a receiver must be accounted for, and applied on the debts; and any amount realized on an execution sale of defendant's personal property, under one of the judgments of which satisfaction is sought in the bill, must first be credited on such judgment.

3. Same.

The action of the supreme court of appeals in prescribing, on appeal, the order in which the property sought to be reached in a creditors' bill shall be sold in case a sale shall be decreed, is binding upon, and must be observed by, the circuit court, in subsequently decreeing such sale, notwithstanding that it may be of opinion that the lands to be sold are inadequate to satisfy the demands ascertained to exist against them, and that a just regard for the interest of all parties forbids further delay in the sale.

4. Judicial Sales—Possession under Decree—Reversal.

Where the commissioners of the court assumed to sell certain lands under a de cree in a creditors' bill after an appeal had been allowed, and such sale was not con firmed, and the decree was subsequently annulled, the purchasers at such sale, who went into possession thereunder, cannot be treated as receivers, and allowed the commissions of the sale, or the expenses of, or compensation for, the management of the lands.

5. Tkusts—Death of Trustee—Appointment of Substitute.

Under Code Va. c. 174, § 8, providing that, in a suit in equity in which it appears that a trustee has died, if'his personal representatives and other persons interested are parties, the court may appoint a trustee in place of him who died, it is the duty of the court, in a creditors' bill filed to set aside a deed of settlement executed to a trustee by the debtor for the benefit of his wife and children, in case of the death of such trustee, to appoint a suitable person to act as trustee under the deed, although section 9 provides that the personal representatives of a sole or surviving trustee shall execute so much of the trust as shall remain unexecuted at the death of such trustee.

6. Interest—Agreement with Creditor.

Where defendant legally contracted to pay, upon a certain debt, interest at the rate of 10 per cent, per annum, he will be held to such rate, although his property is taken from him at the instance of the creditor, in a creditors' bill, and placed in the hands of a receiver.

W. W. Crump and Henry C. Allen, for appellants. M. L. Walton and Holmes Conrad, for appellee.

Lacy, J. This is an appeal from a decree of the circuit court of Shenandoah county, rendered at the September term, 1885. In February, 1879, the appellee, Long, and others, judgment lien creditors of Joseph B. Strayer, filed their bill in behalf of themselves, and all other lien creditors of said Strayer who should come in and contribute their share of the costs of the suit against said Strayer and his wife, seeking to subject the real estate of the said Strayer to their liens, and to set aside a conveyance made by him to a trustee, of a part of his real estate for the benefit of his said wife and her children. And the said circuit court having rendered two decrees, one on the eleventh day of January, 1881, and the other on the sixth day of April of the same year, by which the said Strayer and wife considered themselves aggrieved, an appeal was taken to this court, and at the September term, 1883, of this court both of said decrees were reversed, and a decree rendered here on the seventeenth day of October, 1883, which was ordered to be and was certified down to the said circuit court of Shenandoah county. The reasons for this decree were stated in writing by Judge Hinton, and filed and preserved with the records of this court, and no further notice will be taken of the said decrees here.

The cause coming on further to be considered in the said circuit court of Shenandoah county, the said decree of this court of October 17, 1883, having been recorded in the said court in this cause, a reference was had to a commissioner, accounts taken and reported, with the depositions taken in the cause, and the said report of the commissioner having been excepted to by the defendants in that court, the appellants here, the said circuit court of Shenandoah county, on the fourth day of September, 1885, rendered its decree, overruling the exceptions of the defendants—except the fourth, which was substantially sustained—and decreeing the sale of all the lands of the said Strayer. Whereupon the appellants applied for and obtained an appeal from one of the judges of this court.

The first assignment of error here, now, is that the decree of this court, rendered October 17, 1883, prescribing the order of time in which the several tracts of land should be sold, has been disregarded. It was decreed in this court as follows: "The court is of opinion that, if the said deed of settlement shall hereafter be held to be invalid, the land thereby conveyed, and known as the ' Strickler Farm, ' must, to the extent of said Joseph B. Strayer's interest therein, be subjected to the liens of the judgment creditors, before any of the other lands of the defendants can be sold for that purpose." The circuit court of Shenandoah county in the decree complained of decreed the sale of all the lands of the defendant, in the decree directing the said "Strickler Farm" to be sold, after directing the sale of all the others, thus reversing exactly the order of sale as prescribed by this court in its decree of October 17, 1883. It will not be denied that the circuit court of Shenandoah is boundby the decree of this court, and must obey it, whether the same meet with its approval or not, and entirely without reference to the question whether the reasoning of this court is satisfactory to that court or altogether otherwise; and we reverse the decree of that court for that cause alone, without again entering upon any argument concerning it. That court being of opinion that it is "now manifest from the papers in this cause that, in the most favorable aspect in which the interest of Joseph B. Strayer and his wife can be regarded, his lands will, in any event, prove far inadequate to satisfy the undisputed lien debts ascertained now to rest upon them; and that a just regard for the interests of all parties forbids further delay in the sale of the lands, " etc., —can form no justification for the decree which was rendered in direct opposition to the final judgment of this court on that very question; and, the same being in contravention of the opinion of this court, the said court was incompetent to have such an opinion judicially, or to enter such decree. But notwithstanding the fact that the cause will be for...