Tracey v. Shumate
| Decision Date | 10 November 1883 |
| Citation | 22 W.Va. 474 |
| Parties | TRACEY et al. v. W. H. AND R. A. SHUMATE et al |
| Court | West Virginia Supreme Court |
Submitted Jan. 16, 1883.
1. If a deed of trust is executed by a husband conveying his land and the wife does not join in the conveyance, and the land is sold in the lifetime of the husband, the husband is regarded as dying siezed of the land subject to the deed of trust, and the widow is entitled to have her dower in this land in kind laid off by metes and bounds. (p. 498.)
2. In construing a will to ascertain whether a provision in it is intended by the testator as in lieu of dower and in determining whether it be a jointure, the situation of the testator, when his will was made, and the circumstances then surrounding him may be looked to by the court, just as they may be in determining the true construction of the will in any other case. (p. 499.)
3. When a widow is entitled to have her dower laid off in kind unless she has made a valid arrangement waiving this right it is the duty of the court before decreeing the sale of the land to have her dower laid off in kind; and if this be not done, it is error, for which such decree will be reversed unless it is waived by the parties by subsequent proceedings in the cause and by their failing to take an appeal before a confirmation of the sale made under such decree, which confirmation is sustained by the Appellate Court. (p. 500.)
4. If before the confirmation of such sale the report of the sale is excepted to, because the decree ordering the sale directed the land to be sold subject to the dower instead of first laying it off by metes and bounds, and it clearly appears to the court, that the sale of the land was materially affected by such error, and it brought materially less than it would otherwise have brought, as by showing that one or more bidders, who would but for such failure to lay off the dower have bid upon the land, did not bid or bid materially less than they otherwise would, the court should refuse to confirm such sale; and if it fails to do so, its decree confirming such sale will be reversed on appeal. (p. 501.)
5. A sale under the decree may be set aside before confirmation for gross inadequacy of price; but if it be attempted to establish this by parol evidence only, the proof must be very clear, especially if a great time has elapsed between the sale and its confirmation, and during this time no advanced bid has been made to the court. (p. 516.)
6. The abatement of interest during the war is not based on the fact, that moneys could not be used profitably during the war because of the condition of the country, but solely on the fact that the debtor and creditor resided in countries at war with each other, and the law prohibited the debtor from having any intercourse with his creditor or from paying him the debt. (p: 512.)
7. If a deed of trust be executed by a grantor, who dies, and his land subject to this deed of trust should descend to three heirs, two adults and one an infant, and one of the heirs makes an arrangement with the creditor in the deed of trust without the concurrence of the other two, whereby the land is conveyed by this heir to the creditor with general warranty of title in satisfaction of the debt secured by the deed of trust, the court can not because of their having received the benefit of this arrangement compel either of the other heirs whether adult or infant, to convey said land to the creditor; but if they recover their interest in said land of the creditor, their interest so recovered may be subjected by a court of equity to the payment of an amount equivalent to what they would have been liable for, had they, when such arrangement was made, conveyed their interest in said land with general warranty of title. (p. 502.)
8. A final decree in a chancery cause is as conclusive as a judgment at law; and it is conclusive on the parties and their privies of every fact, which the final decree necessarily affirmed the existence of, whenever the existence of such facts are again put in issue. (p. 509.)
9. And the force of such decree as res adjudicata can not be destroyed or impaired by showing, that it is clearly erroneous and ought not to have been rendered, provided it be a decree on the merits. But by a decree on the merits is not meant the abstract or moral merits. It is sufficient, that when such decree was entered, the status of the suit was such that the parties might have had their suit disposed of on its merits, if they had then presented all their evidence, and the court had properly understood the facts and properly applied the law. Such a decree is thus conclusive till reversed or in some appropriate manner set aside. (p. 510.)
10. A case, in which a court by referring to a record in the same court of another cause thereby made the record referred to a part of the record in the cause, in which such decree was entered. (p. 511.)
GREEN, JUDGE, furnishes the following statement of the case.
At the February rules, 1872, Lockey E. Tracey filed her bill in the circuit court of Mercer alleging, that she was the daughter of Edward H. Tracey, who died August, 1860, leaving a will, a copy of which is filed with the bill. The will is dated August 10, 1860, and by it he gave to his wife Rhoda Tracey a sufficiency to maintain her during her life not mentioning any amount, and to the plaintiff Lockey E. Tracey, and to his daughter Rhoda and his son Edward G. Tracey five hundred and sixteen dollars each, the will stating that he had already paid to his son the amount of this legacy. To his sons Rowland J. Tracey and Addison H. Tracey he gave five dollars each, to the four children of his son, Zolman R. Tracey, fifty dollars each, and to his granddaughter, Minerva Dean, one hundred and fifty dollars. And if there was any remainder, (the will does not say whether of real or personal property or both) he desired it to be equally divided between his children, Edward G. Tracey, Rhoda Tracey and the plaintiff Lockey E. Tracey. He then directed a certain parcel of land known as Maud Hollow to be sold, and whatever it brought over five hundred dollars was to be paid to his son Rowland J. Tracey; and he appointed John Sarvor and Thomas Little as his executors.
The bill alleges, that Edward H. Tracey died possessed of a small personal estate and a valuable tract of land in Mercer county, which, the bill says, contained three thousand acres, on which he on March 24, 1860, executed to one Wm. M. Stafford as trustee a deed of trust to secure to Parkinson Shumate a debt of four thousand one hundred and ninety-seven dollars and seventy-one cents due April 1, 1860. A copy of the deed of trust is filed with the bill, and its contents are correctly stated in the bill, except that the tract of land is said to contain about two thousand acres. The deed of trust also conveyed three houses; and there were no special provisions in it in reference to the sale of the land but it simply provided, that, if default was made in the payment of the debt, the property was to be sold according to law, and five per cent. was fixed as the trustee's commission.
The bill further states, that Parkinson Shumate died in Giles county, Virginia, in July, 1866, leaving a will; that at the time of his death the whole of said debt was due and unpaid, and he bequeathed it to his two sons, William H. Shumate and Rufus A. Shumate; that shortly thereafter, on March 10, 1867, the plaintiff, Lockey E. Tracey, her mother Rhoda Tracey, (who was entitled to dower in said land) and her brother, George E. Tracey, devisees of her father, made a contract with Wm. H. Shumate and Rufus A. Shumate, the owners of said bond of her father, Edward G. Tracey, for four thousand one hundred and ninety-one dollars and seven-one cents with interest from April 1, 1860, by which the said Shumate agreed to take a certain part of said land at the price of four thousand two hundred and twenty-six dollars and eighty cents and give credit for the amount on their said debt secured by said deed of trust; that in pursuance of this contract the plaintiff, Lockey E. Tracey, Edward G. Tracey and her mother, Rhoda Tracey, on August 9, 1867, by a deed with general warranty of title conveyed this parcel of land containing about one thousand five hundred acres to said William H. Shumate and Rufus A. Shumate, which deed was duly admitted to record, and a copy of which is filed with the bill. This deed sets out the boundaries of the land it conveys with general warranty for the consideration of four thousand two hundred and twenty-six dollars and eighty cents; is dated August 9, 1867, and the tract is stated to contain about one thousand five hundred acres, and this deed states that this four thousand two hundred and twenty-six dollars and eighty cents was credited on the bond of Edward H Tracey to Parkinson Shumate for four thousand one hundred and ninety-seven dollars and seventy-one cents payable April 1, 1860, said credit being as of March 10, 1860.
The bill further states, that after giving this credit there was about one thousand seven hundred dollars due on this bond with interest from March 10, 1867. For which balance the said Shumates agreed to give the additional credit of five years as the plaintiff then and now understood the contract, yet in violation of said agreement the trustee, Wm. M. Stafford, on March 9, 1868, sold to the highest bidder for cash the residue of the land conveyed by the deed of trust; and said Wm. A. Shumate and Rufus Shumate became the purchasers for one thousand five hundred and seventy-five dollars; that the possession of this land was still with her mother Rhoda Tracey, who was very old, and who had a dower interest in this land, which had never been assigned to...
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