Whitten v. Saunders

• Decision Date: 11 August 1881
• Citation: 75 Va. 563
• Court: Virginia Supreme Court
• Parties: WHITTEN, & C. v. SAUNDERS, & C.

75 Va. 563

WHITTEN, & C. v. SAUNDERS, & C.

Supreme Court of Appeals of Virginia.

August 11, 1881

Absent, Moncure, P.

1. A debtor possessed of a large tract of land conveys a part of the same by deed of gift to one of his sons, who thereafter sells it to another person for a valuable consideration. The father debtor, then, by subsequent deeds for value, executed at different times, conveys nearly the whole of his said land to different purchasers. On proceedings to subject said land to the payment of a portion of the purchase money, for which the vendor to the debtor had retained his vendor's lien--HELD: The lands will be held liable in the inverse order of the alienations from the debtor, and this, too although one of the alienees is a purchaser from the son of the debtor, who held under a voluntary conveyance from the debtor.

2. Whilst under our statute a voluntary conveyance, without fraud, is void as to existing creditors, it is void only as to them, and is good as to all others. When, therefore, it is said that a purchaser, with notice, from a voluntary donee stands in the shoes of such donee and can occupy no higher ground than he, all that is meant is, that he holds subject to the claims of the original donor's creditors, to the same extent as the volunteer donee holds. Such a purchaser cannot be affected by subsequent alienations from the original donor, of which he had no notice, and against which he could not provide.

3. Upon asking leave to file a petition for a rehearing, or bill of review, on the ground of newly-discovered matter, the new matter must be so stated in the bill as to enable the court to see, on inspecting it, that if it had been brought forward it would probably have changed the character of the decree and it must be so stated that the defendant can answer it understandingly, and thus present a direct issue to the court. It is not sufficient to say that the party asking the leave expects to prove certain facts. He must state the evidence distinctly on which he relies, and file affidavits of witnesses in support of his averments.

This was a suit in equity in the circuit court of Bedford county brought in July, 1876, by B. S. Saunders, late sheriff of said county, and as such administrator de bonis non with the will annexed of Martha Layne, deceased, against Jesse T. Hopkins, Francis E. Hopkins, Beverly R. Jeter, O. P. Bell, Abraham Haldron, Elisha Whitten, H. H. Chilton, David Gish and R. P. Pace, to subject certain real estate of the defendants to the satisfaction of the complainant's judgment against said Jesse T. Hopkins.

The bill alleges that in the year 1857 Henry Terry, late of said county, sold to said Jesse T. Hopkins a tract of land in said county, containing about 873 acres for $15,000, taking thereafter from said Hopkins five bonds, each for $3,000, and retaining his vendor's lean on the said land as a security for the purchase money; that said Hopkins paid to said Terry in his lifetime the first four of said bonds, and that said Terry assigned the remaining fifth bond for $3,000, payable the 30th of April, 1862, to Martha Layne for value received; that said bond having become lost or misplaced in the hands of said Layne, the said Hopkins executed a duplicate bond to said Terry, on which suit was instituted and judgment obtained, subject to certain credits; that no part of said bond and judgment had been paid except whet appears from the credits aforesaid; that said Terry never, by deed or otherwise, conveyed to said Hopkins any title to said land, or authorized said Hopkins to make conveyances of the same to any person whatever; that the complainant, by virtue of his said assignment, has a vendor's lien upon the whole and every part of said land for the satisfaction of his said judgment, with interest and costs; that said Hopkins, without having first satisfied complainant's said judgment and relieved said land of his lien upon it, and without having any title to the same, has sold and conveyed by deeds of gift and sale the whole of said land in separate parcels to the following persons: To Beverly R. Jeter, by deed of sale, dated 5th January, 1863, one tract of 9 1/2 acres; to Francis E. Hopkins, by deed of gift, dated 19th February, 1863, one tract of 245 1/2 acres; to O. P. Bell, by deed of sale, dated 19th August, 1863, a tract of 234 3/4 acres; to Abraham Haldron, by deed of sale, dated 1st November, 1863, a tract of 72 3/4 acres; and to Elisha Whitten, by deed of sale, dated 10th October, 1864, a tract of 312 3/7 acres; that said Francis E. Hopkins, shortly after receiving this deed from his father, sold the tract conveyed to him to David Gish, and that Gish has since sold the same to R. P. Pace, who has paid the purchase money in part, and is in possession of the land; that O. P. Bell has sold to H. H. Chilton about 100 acres of his purchase, who has paid the purchase money in full, and is in possession.

The bill further alleges that said Jesse T. Hopkins is insolvent and a bankrupt, and has no real estate upon which the complainant's judgment is a lien, beyond his interest in the said Terry tract of land, which is first liable for the satisfaction of said judgment, and charges that the said pretended conveyances from said Jesse T. Hopkins and wife to said B. R. Jeter, Francis E. Hopkins, O. P. Bell, Abraham Haldron and Elisha Whitten, and the conveyance of the said Francis E. Hopkins to said Gish, are fraudulent as to the rights of the complainant, and were made with the full knowledge that the said Jesse T. Hopkins had no legal title to said land, and consequently no right to convey the same to the prejudice of the complainant's said debt. The bill prays that each and all of said conveyances be set aside as fraudulent as to the complanant, and that said tracts of land of the original purchase by the said Jesse T. Hopkins of Henry Terry be subjected to the lien of said judgment, and that the same be paid out of said lands in the order in which they ought in equity to be subjected to the same, and for general relief, & c.

Three amended bills were subsequently filed to supply proper parties and revive the cause against Jesse T. Hopkins' representatives, he having died pending the litigation.

The bill was demurred to and answered by O. P. Bell and Elisha Whitten. Among other defences, their answers set up as a defence that said Jesse T. Hopkins was really the owner of a tract of forty-nine acres of land still held by him in the name of one of his sons.

At September term, 1878, a decree was rendered refering the cause to a commissioner of the court to take the following accounts: 1. Of the real estate of Jesse T. Hopkins, liable to said judgment; 2. An account of the plaintiff's debt, and of the fund attached in the suit of Hopkins v. Jones, applicable to the plaintiff's debt; 3. An account of the order in which the Terry lands were liable to be subjected; 4. An account of the administration on said Jesse T. Hopkins' estate.

The commissioner proceeded to execute the said decree and filed his report, to which report the defendants Whitten and Haldron (the appellants here) excepted. The ground of their exceptions was that their co-defendant, Francis E. Hopkins, was a mere volunteer--the land (254 1/2 acres), given to him by his father Jesse T. Hopkins, being reported to be liable to the plaintiff after the lands of said exceptants, although there was no valuable consideration whatever for the conveyance between him and his father. And as to the said Haldron, because his (Haldron's) deed was for full value, and was recorded November 4, 1863, while Francis E. Hopkins' deed to Gish was not recorded until November 9, 1863, five days afterwards, and after Francis E. and said Gish had full legal notice of the alienation by said Jesse T. Hopkins to said Haldron.

The cause came on to be heard at March term, 1879, upon the commissioner's report aforesaid, with the exceptions and the depositions of witnesses; whereupon, the court, without making any disposition of the demurrer, overruled the said exception, and after applying the balance found in the hands of Jesse T. Hopkins' administrator to the plaintiff's debt, decreed the sale of the forty-nine acres of which said Jesse T. Hopkins died seized, and then went on and made a decree nisi for the sale of the lands sold and conveyed as aforesaid, to said Whitten and Haldron, respectively, before those given to his son, Francis E. Hopkins.

At a special term of the court held in June, 1879, the said Whitten and Haldron, and said R. P. Pace, who was alienee of Gish, asked leave to file their bill of review to set aside the decree aforesaid, on the grounds that they had subsequent to the decrees discovered evidence showing that the debt for which the judgment was obtained had been paid, the staleness of the demand, & c., but the distinct character of the evidence of payment was not set out in the bill...