Turner v. Barraud

• Decision Date: 14 January 1904
• Citation: 102 Va. 324,46 S.E. 318
• Parties: TURNER et al. v. BARRAUD et al.
• Court: Virginia Supreme Court

46 S.E. 318

102 Va. 324

TURNER et al.

v.BARRAUD et al.

Supreme Court of Appeals of Virginia.

Jan. 14, 1904.

INFANTS—GUARDIAN AD LITEM—APPOINTMENT —DECREE—RECOGNITION BY COURT—JURISDICTION — RECORD — RECITALS — PRESUMPTION—PARTITION—LIFE TENANTS AND REMAINDERMEN.

1. When the record states the evidence or makes an averment with reference to a jurisdictional fact, it will not be presumed that there was other or different evidence respecting the fact, or that the fact was otherwise than as averred.

2. An appointment of a guardian ad litem "to infant defendants" by the clerk of the court has reference to the infant defendants named in the memorandum of suit, and not to those named in the bill.

3. Where one has never been appointed a guardian ad litem for an infant defendant, so far as the record shows, his assuming to act as such in his answer in the suit cannot make him guardian ad litem unless the court afterwards treats him as such.

4. Where the only mention of B., an infant defendant, as shown by the record, is in the bill and in the caption of the answer of a guardian ad litem appointed for other infant defendants, whose interests are adverse to B.'s, the use by the court of the phrase "infant defendants" in its decrees is not a recognition or treatment of B. by the court as a party to the suit.

5. There can be no partition between life tenants and remaindermen.

¶ 5. See Partition, vol. 38, Cent. Dig. § 47.

6. Where the scope of the pleadings in an action did not involve the interests of remaindermen, a decree of sale of the remainder is beyond the jurisdiction of the court, and therefore a nullity.

Appeal from Circuit Court, Norfolk County.

Action by Henry E. Turner and others against P. St. Geo. Barraud and others. From a decree for defendants, plaintiffs appeal. Affirmed.

Heath & Heath and W. W. Old, for appellants.

W. L. Williams, A. C. Braxton, and F. H. Busbee, for appellees.

HARRISON, J. D. C. Barraud, Sr., of the city of Norfolk, died in 1867, leaving a will, by which he gave to his grandson, D. C. Barraud, Jr., a life estate in the Barrous farm in Norfolk, county, with remainder to his lawful issue, if he should die leaving any, and, if he should die without lawful issue, then such remainder to pass, under the residuary clause of the will, to the persons there named. In addition to this specific bequest, the tes tator gave to this grandson an undivided in terest in the estate passing under the residuary clause of bis will.

Upon the death of the testator, the life tenant took possession of the Barrous farm. He rapidly exhausted his interests under the will of his grandfather, and soon had those interests, which were chiefly in lands, including his life estate in the Barrous farm, heavily incumbered by deeds of trust and judgments taken against him.

In 1874, D. C. Barraud, Jr., and others united as plaintiffs in a chancery suit against R. C. Marshall and others to subject his interests in his grandfather's estate to the satisfaction of his debts. The object of this suit is stated in the bill filed as follows: "The object and intent of this bill is to construe the said will, to fix and determine the rights and interests of the various parties interested therein, to protect and provide for the annuities, and to make partition in kind of the said real estate so devised by the said D. C. Barraud, deceased, to and among the parties entitled thereto, according to their respective shares and interests, so that the part or share of your orator, the said D. C. Barraud, therein, may be set apart in kind, if practicable, or so far as practicable, and sold for the benefit of the creditors under the said deeds of trust and the judgment creditors aforesaid." In May, 1875, a decree was entered in this cause directing a sale of the entire fee in the Barrous farm (remainder as well as life estate). November 26, 1878, a consent decree was entered, confirming a private sale of this farm to William H. Turner at the price of $5,300. This decree ascertained the remainder interest in the proceeds of sale to be $1,150.10, and directed the same to be deposited in bank to await the death of the life tenant Three days later, on November 29, 1878, a final decree was entered, confirming an account of disbursements, and striking the case of Barraud, etc., against Marshall, etc., from the docket.

William H. Turner, the purchaser at the sale mentioned, died in 1885, and the present suit was instituted in February, 1901, by his son, Henry L. Turner, in his own right and as next friend of two infant grandchildren of William H. Turner, against P. St. Geo. Barraud and his four brothers and sisters, the children of D. C. Barraud, Jr., seeking a decree quieting their title to a portion of the Barrous farm claimed by them under the will of their ancestor.

This bill reviews the proceedings in the suit of Barraud, etc., against Marshall, etc., and alleges that under those proceedings William H. Turner, the ancestor of complainants, acquired a perfect fee-simple title to the Barrous farm, and that they have, therefore, a fee-simple title to that portion of the same involved in this suit; that the defendants deny their title, and claim that they own the Barrous farm under the will of their grandfather, D. C. Barraud, Sr., subject to the lifeestate therein of their father, D. C. Barraud, Jr., and insist that William H. Turner only acquired title in the suit of Barraud against Marshall to the life estate of their father. Complainants further allege that they desire to sell the land in question, and that the claim of defendants is a cloud upon their title, seriously impairing its value, which a court of equity will remove.

To this bill the five Barraud defendants-three adults, and two infants by their guardian ad litem—file answers. These answers deny the material allegations of the bill, and fully set out the case of the defendants, and exhibit as a part thereof the entire record of the suit of Barraud against Marshall. The defendants deny that the complainants own title to the land in fee, but aver that they only own the life estate therein of their father, D. C. Barraud; that under the pleadings in the suit of Barraud against Marshall the court had no power to sell the remainder in fee, to which they were entitled under the will of their ancestor, the elder Barraud; that the defendant P. St. Geo. Barraud, who alone of the appellees was in esse at the time of the institution of the suit of Barraud against Marshall, was never in any way known to the law made a party to the suit of Barraud against Marshall, and that no one of the five children of D. C. Barraud were ever before the court in that case, and could not, therefore, be bound by the decrees therein. The defendants ask that their answers be treated as cross-bills, and pray that all of the proceedings in Barraud against Marshall, in so far as such proceedings affect their rights as owners of a contingent remainder in fee in and to the tract of land known as "Barrons Farm, " be declared to be void ab initio; that the title held or claimed by the complainants be declared to be a title during the life of D. C. Barraud, and no longer, with remainder in fee to the defendants, or such of them as shall survive their father, D. C. Barraud, who is now living.

This cause was regularly matured upon the original bill and the cross-bills, and, in September, 1902, the circuit court for Norfolk county rendered the decree appealed from, holding, among other things, that P. St. Geo. Barraud was never made a party defendant to the suit of Barraud against Marshall; that no guardian ad litem was appointed for him; that no jurisdiction was ever acquired over him in that suit; and that all the decrees therein, so far as they purport to affect P. St. Geo. Barraud and those claimed to be represented by him, were null and void.

It is apparent that the case now before us involves a collateral attack by the appellees upon the decrees in the suit of Barraud against Marshall in so far as those decrees undertake to bind or affect them. The record in the case of Barraud against Marshall is replete with errors and irregularities, but for such errors and irregularities the proceedings therein cannot be successfully attacked collaterally. It is an established rule, founded in wisdom, and necessary to the repose and well-being of society, that "a superior court of general jurisdiction, proceeding within the general scope of its powers, is presumed to act rightly. All intendments of law in such cases are in favor of its acts. It is presumed to have jurisdiction to give the judgments it renders until the contrary appears. And this presumption embraces jurisdiction not only of the cause or subject-matter of the action in which the judgment is given, but of the parties also. The former will generally appear from the character of the judgment, and will be determined by the law creating the court or prescribing its general powers. The latter should regularly appear by evidence in the record of service of process upon the defendant or his appearance in the action. But when the former exists the latter will be presumed. This is familiar law, and is asserted by all of the adjudged cases." Parker v. McCoy, 10 Grat. 594; Pennybacker v. Switzer, 75 Va. 671; Smith v. Henkel, 81 Va. 524; Lemmon v. Herbert, 92 Va. 653, 24 S. E. 249; Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959. In the last-mentioned case, from which the foregoing statement of the law is taken, Mr. Justice Field further says: "But the presumptions which the law implies in support of the judgments of superior courts of general jurisdiction only arise with respect to jurisdictional facts concerning which the record is silent. Presumptions are only indulged to supply the absence of evidence or averments respecting the facts presumed. They have no place for consideration when the evidence is disclosed or the averment is made. When, therefore, the record states the evidence or...