Wissler v. Craig's Adm'r

• Decision Date: 08 January 1885
• Citation: 80 Va. 22
• Parties: WISSLER v. CRAIG'S ADM'R.
• Court: Virginia Supreme Court

80 Va. 22

WISSLER v. CRAIG'S ADM'R.

Supreme Court of Appeals of Virginia.

January 8, 1885

Appeal from a decree of the circuit court of Shenandoah county rendered April 14th, 1884, in the chancery cause of Walton Craig, anministrator d. b. n. c. t. a. of Peter Craig deceased, complainant, against Jonathan Foltz's administrator and others, defendants. Argued at Staunton, but decided at Richmond.

By deed, duly recorded in 1856, said Foltz conveyed to R. M Conn, trustee, 573 acres of land in said county, to secure to Peter Craig a debt of $2,938. In 1859 Conn, the trustee, sold 362 acres thereof, and applied the proceeds to the debt leaving unpaid about $2,317 as of July 24th, 1863, when Foltz paid that sum, in Confederate currency, to Philip Helsley, who, Peter Craig being then dead, had been appointed curator pending a contest about his will. But the curator did not cause the trustee to execute a release of the trust-deed. In 1867 Foltz sued the curator and the trustee in chancery for the release. In 1871 the circuit court held the payment valid, but did not direct the execution of a release. The will having been established, Helsley had qualified as Peter Craig's executor; but having been removed, in 1872, Walton Craig qualified as administrator de bonis non with the will annexed of said Peter Craig, and in 1878 instituted a suit against Helsley for a devastavit in receiving, as such curator, said currency. To the bill Helsley demurred, and appealed to this court from the decree overruling his demurrer, which decree was affirmed (see Helsley and als. v. Craig's adm'r and als., 33 Gratt. 716), and Helsley required to answer the bill. The suit rested. In 1880 Helsley and the trustee, Conn, petitioned for a rehearing of the interlocutory decree of 1871, but it was refused. From the decree of refusal they appealed to this court, which reversed the decree, and held that the receipt of the Confederate currency was a devastavit and that Foltz was entitled to neither a release nor a credit therefor. See Helsley and als. v. Foltz, 76 Va. 671.

In August, 1863 after paying the Confederate currency to the curator on the balance of the trust-debt, Foltz sold and conveyed eighty-four acres of the said 572 acres to one Philip Heltzell, who was cognizant of the trust-deed and of the payment in said currency. After Heltzell's decease, under a decree in a suit by his creditors against his heirs, those eighty-four acres were sold; the sale was confirmed, and the deed was made to the appellant, Jacob Wissler, who had paid the purchase-money. The bill for the sale and the conveyance of the land to Wissler both described it as " the land Heltzell had purchased of Foltz." Other parcels of the trust-land had been sold and conveyed by Foltz in his lifetime to different persons.

In 1883 Walton Craig, as such administrator, instituted this suit to obtain the aid of said circuit court in ascertaining what amount was still due to his testator's estate, and in enforcing said trust-deed. Wissler answered the bill, setting up his purchase, the improvements he had made, his claim to be allowed therefor, and that Craig's representative had been guilty of such laches in collecting the said debt as debarred him from subjecting the land held by the respondent. But the circuit court disallowed the claim for improvement, held there had been no laches, and decreed that Craig's administrator recover of Foltz's administrator, out of funds in his hands to be administered, $4,726.50, with interest on $1,988.89 from October 12th, 1883, till paid and costs; and in default of payment in thirty days, that the balance of the 572 acres be sold in the inverse order of the several alienations of the different parcels thereof. From that decree an appeal and supersedeas was allowed Jacob Wissler.

Henry C. Allen, for the appellant.

John E. Roller, for the appellee.

OPINION

RICHARDSON, J.

The case is this: By deed, dated 21st of March, 1856, and duly recorded, Jonathan Foltz conveyed to R. M. Conn, trustee, a tract of 573 acres of land in Shenandoah county, in trust to secure Peter Craig the payment of $2,938.

In 1859 the trustee sold 362 acres of said tract, and applied the proceeds to the trust-debt, leaving a balance unpaid. Craig, the beneficiary in said deed, died in 1862. A contest arose about Craig's will, during which Philip Helsley, curator of Craig's estate, on the 24th of July, 1863, received of Foltz $2,317, the supposed balance of the trust-debt, which sum was received in Confederate States treasury notes. Then there arose a controversy as to the conditions on which the Confederate notes had been received, and Conn, the trustee, refused to execute a release of the trust-deed. So, in 1867, Foltz instituted a chancery suit in the circuit court of Shenandoah county against Conn, trustee, and said Helsley, who had become the executor of Peter Craig, deceased, to compel the execution of such release. That suit was heard in September, 1871, when the circuit court held the payment to be valid, and ordered an account of the residue, if any, remaining unpaid on the trust-debt; but did not order the release of the trust-deed. Nothing further was done in this suit or under the trust-deed for several years. In 1872 Helsley ceased to be executor, and Walton Craig qualified as administrator d. b. n. with the will annexed of Peter Craig, deceased, and in 1878 instituted a chancery suit in said circuit court against Helsley, curator, & c., charging him with a devastavit in receiving the Confederate money in discharge of the trust-debt. Helsley demurred to the bill, the circuit court overruled the demurrer, and Helsley appealed to this court, which, in 1880, affirmed the decree, and remanded the cause for further proceedings. See Helsley v. Craig's administrator, 33 Gratt. 716. During the year 1880 Helsley and Conn petitioned the circuit court to rehear and reverse the decree of September, 1871, in the cause of Foltz v. Helsley, curator, and Conn, trustee, but the court refused to rehear. From this decree of refusal they obtained, in May, 1880, an appeal to this court, which reversed said decree of September, 1871, and adjudged that the receipt of the Confederate money, in discharge of the trust-debt, was a devastavit by said curator, in which the trust-debtor participated; and that the latter was entitled neither to a release of the trust-deed nor to a credit for the amount so paid. See Helsley v. Foltz, 76 Va. 671.

After paying the Confederate money to the curator, Foltz, in August, 1863, conveyed eighty-three acres of the land embraced in the trust-deed to Philip Heltzell, who was cognizant of the trust-deed, of the payment in Confederate money, of the controversy about the conditions of the payment, and of the trustee's refusal to make the release, for the record shows he was examined as a witness to the payment in the suit of Foltz v. Helsley and Conn.

Philip Heltzell having died, a chancery suit was brought in 1876 in said court by Samuel Myers and other creditors of Heltzell, against his administrators and heirs, to subject the said eighty-three acres of land to the payment of his debts; and the same having been sold, under a decree in that cause, Jacob Wissler, the appellant here, became the purchaser, and the sale was confirmed to him, the purchase-money paid, and the land conveyed to the purchaser. In this suit the bill and the deed to Wissler both described the land as that Heltzell purchased of Foltz. By deed, dated February 1st, 1864, Foltz conveyed sixty acres of the land embraced in said trust-deed to B. P. Newman, who, in 1879, conveyed it to B. F. Coffman, by whom it was conveyed to the said Wissler, who, in turn, conveyed it to Charles L. Pierson. And by deed of February 6th, 1873, Foltz conveyed nine and a half acres of said trust-land to B. F. Coffman, who, in May, 1881, conveyed it to the said Jacob Wissler. So that the latter thus become the purchaser of three parcels of the land embraced in the trust-deed, the sale of which was directed by the decree of 14th April, 1884, entered by the circuit court in the case of Walton Craig, adm'r, & c., against Jonathan Foltz's adm'r and heirs, Philip Heltzell's adm'r and heirs, B. P. Newman, B. F. Coffman, Jacob Wissler, and R. M. Conn, trustee.

In his bill the complainant set out a full history of the facts aforesaid; recited that in December, 1882, after the reversal of the decree of September, 1871, the circuit court, in the case of Craig's adm'r, & c., against Helsley curator, and Conn, declared that it would not be proper to decide that suit until the Foltz lands had been sold, and it had been ascertained whether or not there would be a loss of any part of the debt due Craig's estate from Foltz; and he averred that in performing the duty of collecting the balance due on that debt he found so many difficulties in the way that he felt compelled to invoke the aid of a court of...