Walker v. *(Green
| Decision Date | 04 March 1880 |
| Citation | 32 W.Va. 297 |
| Court | West Virginia Supreme Court |
| Parties | Walker v. Ruffner.*(Green, Judge, absent.) |
Judicial Sales Decree.
R., administrator of M., filed a bill in the County Court of Kanawha county in April, 1876, against W. and others to enforce a vendor's lien on a lot of land situated in Charleston, W. Va., then owned and claimed by W. R. acted as solicitor for plaintiff and was appointed special commissioner to make the sale in June, 1876. After being offered on several occasions, and the sale postponed at one time to accommodate W., said lot was sold on the 25th day of November, 1876, for $700 00, which appears to have been all it was worth at the time. B. H, S. and R., as such administrator, became the purchasers. The sale was confirmed without exceptions on the 20 Ji day of December 1876, and the purchasers went into possession and have so continued. After the application of the proceeds of said sale there was left a balance due said administraor, and a decree was rendered against W. for said balance, which was voluntarily paid by W., October, 28, 1881. Since said sale said property has increased in value from several causes, and when this suit was brought, in 1887, was worth about $3000.00. Held: The decree appointing R. a special commissioner to make sale of said lot and the decree confirming the purchase by R. as such administrator, were voidable, and could have been so shown by W. in the suit, which directed the sale, to which he was a party, if he had been so disposed.
2. Statute of Limitations Decree.
After the lapse of nearly ten years a party to a suit will not be heard to impeach a decree rendered therein by original bill under the circumstances shown in this case, unless some valid excuse is shown for this long delay.
Brown $ Jackson and Miller $ Gallaher for appellants.
Knight $ Couch for appellee.
At the May rules in the year 1876, David L. Ruffner, administrator of the estate of Maria McFarland, deceased, filed a bill in chancery in the County Court of Kanawha county against Henry S. Walker', The Charleston Institute, a corporation under the laws of West Virginia, Charles C. Lewis, Benjamin II. Smith and Isaac N. Smith, defendants, in which he alleged in substance, that the said The Charleston Institute being possessed in fee of a parcel of land on the southeast side of Summers street between Virginia and State streets in the city of Charleston Kanawha county, W. Va., laid off said parcel of land into lots and proceeded to sell the same and did sell lot No. 1 of said parcel of land to the appellee, Henry S. Walker, at the price of $1,600.00, of which sum said Walker paid $500.00 at the time of sale and executed four notes, dated the 26th day of April, 1873, the first for $20.00 payable one year after date; the second for $360.00 payable two years after da'e; the third for $360.00 payable three years after date; and the fourth for $360.00 payable four years after date, all payable to the order of the Charleston Institute at the First National Bank of Charleston, and all bearing interest at six per cent, per annum from date until paid; to secure the payment of which the vendor's lien was retained upon said lot No. 1, which lot is described in a certified copy of the deed to said Henry S. Walker, which is filed as Exhibt No. 1 with said bill; that the said The Charleston Institute transferred to said Maria MaeFarland, who wras then in life, the second and third notes for $360.00 each, payable respectively at two and three years after date, in consideration for some stock, she then held in The Charleston Institute, which was surrendered by her and retired and cancelled; that said Maria McFarlancl died in July, 1874, and that the plaintiff, as her duly qualified administrator, holds said two notes, one of which would fall due on the 29th day of April, 1875, and the other on the 29th day of April, 1876; that no part of said notes or either of them had been paid, and he exhibits them with his bill; that said $20.00 note wras assigned by The Charleston Institute to C. C. Lewis and had been fully paid; that the fourth of said notes for $360.00 due four years after its date was assigned by said Institute to Benjamin II. Smith and Isaac N. Smith, and the plaintiff did not know, whether any part of the same was paid or not, and called on B. II. and I. N. Smith to discover how much, if anything, had been paid upon the note held by them; and prayed, that said lot No. 1 might be sold by virtue of the lien reserved as aforesaid in said deed.
C..C' Lewis answered said bill, admitting the payment of said $20.00 note by the defendant Henry S. Walker; and the defendants B. II. and I. N. Smith answered said bill stating, that they were the owners of the fourth purchase-money note given by Henry S. Walker as part of the deferred instalments for said lot No. 1; that said note was for $360.00 dated April 26, 1873, and payable four years after date with interest subject to a credit of $200.00 paid May 15, 1874, and prayed, that it might be decreed to be a lien upon said lot, and that their interest might be protected; and they filed said note with the credit indorsed with their answer.
On the 28th day of June, 1876, a decree was entered in said cause ascertaining the aggregate amount of the notes held by plaintiff, including interest to that date, to be $856,-80, and that the balance due on said foi rth note held by I. N. and B. II. Smith was a lien upon said lot No. 1; and decreeing, that, unless the defendant Henry S. Walker should pay said sum found due the plaintiff with interest within thirty days from the date of said decree, said David L. Ruffner, who was thereby appointed a special commissioner for the purpose, should advertise and sell said lot for cash as to twenty live per cent, of the purchase-money, and as to the residue upon a credit of twelve, eighteen and twenty four months.
It appears from the report of David L. Ruffner, special commissioner, that said Henry S. Walker having failed to pay, as required by said decree, the amount therein ascertained to be due plaintiff, he advertised said property for sale on the 12th day of October, 1876, and after postponing said sale on several occasions he finally on the 27th day of November, 1876, sold said lot to B. II. Smith and to D. L. Ruffner, as administrator of M. McFarland, deceased, jointly in proportion to their respective claims upon the said lot, at the price of $700.00, that being the highest bid for the same. On the 20th day of December, 1876, said sale was confirmed by the court, and the amount so bid on said lot after deducting the costs and commissions was so apportioned as to credit the amount due plaintiff from said defendant Walker with the sum of $495.82, leaving still due plaintiff from said Walker a balance of $382.40, and also to credit the amount due said B. II. Smith with $118.58, leaving still unpaid on said note as of November 27, 1876, the day of the sale, the sum of $91.66; which report remaining unexcepted to was confirmed, and judgment was rendered against said Walker for said balance of $382.40 and interest, and execution was awarded on said judgment; and William A. Quarrier, as special commissoner, was directed to convey said lot or parcel of land to said D. L. Ruffner, administrator as aforesaid, and B. II. Smith jointly in the proportion of 807-1000 to the former and 193-1000 to the latter; which deed was executed by said Quarrier, as special commissioner, dated on the 20th of December, 1876, and acknowledged the 11th day of July, 1881.
On the first Monday in February, 1887, said Henry S. Walker filed a bill in the Circuit Court of Kanawha county against said David L. Ruffner, administrator of Maria McFarland, deceased, The Charleston Institute, a corporation, ' Charles C. Lewis, B. II. Smith, D. C. Gallaher, administrator of I. N. Smith deceased, and the unknown heirs at law of Maria McFarland deceased, the object of which was to vacate, annul and set aside the sale made by said David L. Ruffner, as special commissioner, and to cancel and annul the deed made in pursuance of said sale to said David L. Ruffner, as administrator of the estate of Maria McFarland, deceased, and B. H. Smith.
The plaintiff in said bill sets forth in detail the circumstances in reference to the purchase of said lot by himself from The Charleston Institute, the amount of purchasemoney he was to pay, the amount paid in cash, and the time and manner, in which the residue was to be paid, also the manner, in which the said Maria MacFarland's administrator asserted a vendor's lien against said lot No. 1; that said bill was filed by said D. L. Ruffner, solicitor for D. L. Ruffner, administrator, the two being one and the same person; that by the decree enforcing said alleged lien said D. L. Ruffner was appointed special commissioner on the 28th day of June, 1876, to make sale of said lot, to satisfy the lien ascertained to exist in favor of said D. L. Ruffner, administrator etc.; that said D. L. Ruffner, as such special commissioner, on the 27th day of November, 1876, made sale of said lot under said decree, at which sale said D. L. Ruffner, as administrator as aforesaid, and B. H. Smith became the purchasers of said lot for the price of $700.00 less than one half the amount, which said Walker agreed to pay The Charleston Institute for same; that said lot brought at said sale less than one third of its value; that after applying the proceeds of said sale to the unpaid purchase-money amounting to $855.80 with interest added to June 28, 1876, all the balance of said purchasemoney having been paid by the plaintiff, Walker, there was still a considerable sum due on the purchase-money of said lot, for which a decree was taken against said Walker, which was afterwards paid by said Walker to said D. L. Ruffner,...
To continue reading
Request your trial