Wright v. Strother

• Decision Date: 16 October 1882
• Citation: 76 Va. 857
• Court: Virginia Supreme Court
• Parties: WRIGHT, & C. v. STROTHER ET ALS. WRIGHT, & C. v. WRIGHT ET ALS.

76 Va. 857

WRIGHT, & C. v. STROTHER ET ALS.

WRIGHT, & C. v. WRIGHT ET ALS.

Supreme Court of Appeals of Virginia.

October 16, 1882

Appeals from decrees of circuit court of Frederick county in a certain cause therein pending under the style of Mitchell v. Wright et als. Its object was to make partition of certain lands among the cotenants thereof, some of whom were purchasers of undivided shares thereof from certain of the original coparceners who had reserved liens for the unpaid purchase money. Partition was made and confirmed by a decree entered 13th June, 1873, which decree, however contemplated and provided for a further decree to give complete relief. Afterwards J. T. Strother and other creditors having liens on the land for the undivided shares thereof sold by them, conceiving that the partition was unequal and unfair as respects them, petitioned for a rehearing of the said decree and for a new partition. Commissioners selected to make the partition were directed to examine the land assigned under the old partition to J. T Wright and to Mrs. B. F. W. Boyce, and ascertain whether or not the assignment was injurious to the rest. They examined and reported that it was, and made a new partition. The circuit court confirmed their report by its decree of 26th May, 1879. From that decree J. T. Wright and Mrs. Boyce appealed to this court. Pending that appeal--to-wit: on the 18th October, 1881--certain parts of said tract which had been purchased by U. L. Boyce were sold under a decree in said cause and purchased by Mrs. B. F. W. Boyce, and the sale was confirmed by the circuit court, overruling the objections of said J. T. Wright and of Mrs. Boyce thereto; and they obtained also an appeal from that decree. Mrs. Boyce, before the hearing, dismissed both of her appeals.

Dandridge & Pendleton, for the appellant.

Barton & Boyd, for the appellees.

OPINION

BURKS, J.

These two causes are so connected that they must of necessity be considered together. Mrs. Boyce having dismissed her appeal in each of the causes, Joseph T. Wright is now the only appellant. His complaint is of the partition confirmed by the decree rendered June 20, 1879, in the cause first above named, and the ground of complaint is not that the land set apart to him is not the full and fair measure of his original interest, as one of the heirs of Joseph Tuley in the " Lucky Hit" and " Tuleyries" farms, but that he is not permitted to retain the land assigned to him by a previous decree, rendered in the second named cause June 13, 1873, which was afterwards amended by the decree of May 26, 1879.

And it is contended by his counsel, first, that the decree of June 13, 1873, is a final decree. If the contention is well founded, it must be conceded, I think, that the decree is conclusive at least on the vendor's holding liens on the undivided interests in the lands sold and conveyed by them respectively to U. L. Boyce. They were all parties to the cause, and if the decree being final was erroneous, their only remedy to correct it was either by bill of review or by appeal. They did not appeal, nor, treating their petition as a bill of review, was it filed within the time prescribed by the statute. But I do not regard the decree as final within the meaning of the rule applicable to bills of review. What that rule is has been so often stated by this court that it is hardly necessary to be restated. I need only refer to the recent cases of Ryan v. McLeod, 32 Gratt. 367, and Rawlings' Ex'or v. Rawlings and others, 75 Va. Rep. 76, where a full discussion of the subject will be found. It is sufficient to say in general terms, that a decree which leaves anything to be done...