Arnold v. Casner

SNYder, Judge: The facts of this case are of themselves very potent evidence that the appellants have no substantial ground of complaint. If any errors have been committed they were merely formal and the appellants, by their utter indifference and gross negligence, to say nothing of their acts of positive approval, had precluded themselves from any right to complain long before the decrees appealed from were entered. To entitle parties in their situation to prevail they must present something more cogent than formal irregularities and fanciful objections. They must show that substantial rights have been denied them or that legal principles have been violated and injustice thereby clone them. Has such been the case in this cause ?. It is objected that this is not a formal creditors’ suit to settle and subject the estate of a decedent- to the payment ot debts, but that it is technically a bill to enforce a judgment456 lion against a living woman; and that, therefore, the court had no jurisdiction over the creditors of the estate of Moses E. "Ward or power to sell the lands descended from him to his heir. It is not necessary that a creditors’ suit should be such in its inception. A bill filed by a single creditor against the personal representative and heir of a decedent may be converted into a creditors’ suit by the subsequent conduct of the cause. In this respect such a suit is governed by the same rules and principles that apply to a bill filed by a judgment-creditor to subject the real estate of a living debtor to the payment of his judgment. In either case the more formal and better practice is for the plaintiff to file his bill on behalf of himself-and other creditors of his class, but this is not absolutely required. If the cause is referred tó a commissioner for an account of the debts entitled to be provided for in the suit it. from that time becomes a creditors’ suit. The usual course is to publish a notice convening the creditors and thereby informally' making them parties. And such informal parties have the same control and right to file and have their claims adjudicated in the cause as if they had been formally by name or as a class made parties, and upon filing their claims before the commissioner they become bound by the proceedings in the cause as fully as the most formal parties — Story’s Eq. PI. § 100; 1 Story’s Eq. Jur. § 347; Hendrick v. Robinson, 2 Johns. Ch. 296; Marling v. Robrecht, 13 W. Va. 440; Neely v. Jones, 16 Id. 625; Jackson v. Hull, 21 Id. ■ The authority for such a suit is not derived from the statute, but exists independent of it. The material change made by our statute — Code ch. 86 § 7 — was to confer upon the personal representative of a decedent the right to file a creditors’ bill to subject real estate where the personal estate of his decedent is insufficient to pay the debts, a right which the personal representative did not have before the statute. Whether, therefore, the bill is filed by a lien-creditor against a living debtor, or by a creditor to subject to its debts the estate of a decedent, the proceeding is much the same, and the allegations of the bill very similar. The difference is more in the descriptive character of the parties than in the substance of the suit. In the one case the debts are made — 457 — charges by statute and in the other they are positive liens. The bill in this suit is by judgment-creditors against their debtor and other lien-creditors of the same debtor, and also against the personal representative and heir at law of a deceased person. And the real estate sought to be sold, is subject not only to the lien of the plaintiffs judgment but. is also liable for the payment of the debts of the decedent. The latter debts having precedence over that of the plaintiffs, it was necessary that the creditors holding those debts should become either formal or informal parties to the suit. They were not all made formal parties — -some of them were — and the others were convened by publication as prescribed by law, an account of their debts was ordered, they appeared and filed their debts before a commissioner who reported them and the report was confirmed by the court. By this proceeding all those who filed their claims became parties to the cause as effectually as if they had been made such by the plaintiffs’ bill, and the court had as complete jurisdiction to bind them by its orders and decrees as any other party to the cause. But it is further objected that some of the small debts decreed to be paid from the real estate are judgments against the administrator, and that .such claims are not evidence against the heir. It is unquestionably true that judgments against an administrator are not as such binding upon the real estate which descended to the heir. But in this cause all the debts, including those now claimed to be merely judgments against the administrator, were reported by the commissioner and allowed by him as liens against the real estate sought to be sold and said report was confirmed by the court in Juue, 1874, without exception or objection to said debts or any claim that they were not valid liens as reported. By said report the appellants and all other parties were concluded; because, it is the settled law of this State, that the parts of a commissioner’s report not excepted to are admitted to be correct not only as regards the principles, but also as to the evidence upon which they are founded. McCarty v. Chalfant, 14 W. Va. 531; Ward v. Ward, 21 Id. 262. It is further objected that the lands decreed to be sold included land which never belonged to the decedent, Moses F. — 458 — Ward. All these lands were legally or equitably liable'for the debts of said Ward. The lands conveyed to the appellant, Ellen D. Casner, by Thomas, were acquired in exchange for lands of which said War’d died seized and in pursuance of a verbal agreement made by him in his lifetime. And, moreover, the commissioner reported that the debts were all liens upon the whole of the lands decreed to be sold and this report was confirmed without objection or exception to that part of it, and the appellants were thereby concluded from leaking any objection to that part of the report except by bill of review or petition for a re-hearing filed in proper time, which was never done. The .objection that no account of the personal assets was taken was waived by the parties chiefly interested — the appellants. During the taking of the account by the commissioner they notified the commissioner that a saleof the lands had been made to pay off the debts and for a price more than sufficient for that purpose, and in consequence thereof, and to save costs, no such account was desired. The exception to the first report on this ground was not only waived by this arrangement but no exception was taken to the second report for the want of such account. The exceptions to the first report do not attach to the second or recommitted report which was not excepted to upon that ground — Kee v. Kee, 2 Gratt. 116. The appellant, Ellen D. Casner, having during her widowhood, in June 1871, assumed to pay off the Creel debts— both those due from her individually and from the estate of her late husband — equity had jurisdiction to enforce those debts against her and also against the lands owned 'by her, whether acquired by purchase or descent from her late-husband. And the petition filed by Creel’s administrators was sufficient to authorize the court in this suit to decree the payment of said debts out of said lands. To have real estate rented rather than sold under the law prior to the act of March 26, 1882, was a privilege and not an. absolute right accorded to the debtor; and, therefore, to entitle him to the benefit of this privilege he must exercise reasonable diligence in claiming it in the court below, and where he has not done so, and shows no sufficient reason why — 459 — he has not done so, ho cannot be permitted at the last moment to avail himself of such privilege and have the cause sent back to a commissioner or otherwise delayed — Hill v. Morehead, 20 W. Va. 429. In this cause four different references had been made and four reports made by a commissioner. During the time these reports were being made no account of the rents and profits was asked for by any one or suggestion offered that the rents and profits of the land would pay the debts in a reasonable time. The first intimation on the subject was made in the petition of Connell on the day the decree for a sale of the lands was entered. This was clearly too late. It is further objected that the court erred in excluding the petition of the appellant, Connell. By this petition he asked to be made a party for the purpose of re-litigating the rights of parties already settled by the decrees of the court. He was a pendente lite purchaser. He consummated his purchase by a conveyance of the lands to him July 30, 1874, and his petition was not tendered until July 15, 1881, seven ypars after his purchase. This suit was brought in 1872. Two reports of the debts had been made, the second of which had been confirmed in June, 1874, before the lands were con-yeyed to Connell. The report thus confirmed reported the debts now disputed as constituting liens on these lands. It is evident not only that Connell had notice of these debts and that they had been declared to be liens on the lands conveyed to him before such conveyance, but it is equally apparent that he purchased subject to said debts with the understanding that he was to apply so much of the purchase-money as ■ might be required to pay off said debts; because soon after his purchase he commenced paying off the debts so reported and thereafter continued to do so until he had paid from eighteen thousand dollars to twenty thousand dollars on said debts. He even paid the commissioner’s fee for making the report. He paid all said debts except the balance still due on the Creel debts and the other unpaid small debts as shown by the statement preceding this opinion. He made no objection to any of said debts, nor did he ask to be made a party to this suit, but continued to pay off the same without complaint from him or the appellants, Casner and wife, until J uly, 1881, — 460 — nearly seven years after bis purchase and more than a year after the fourth and final report of the commissioner had been completed and filed in the cause; then, he for the first time tendered his petition and asked to be made a party to the suit and to be permitted to re-open and re-litigate questions which had been finally settled as to. all the parties to. the cause and actively acquiesced in by him for nearly seven years. It was only after all other means of delay had become hopeless and a sale of his lauds was about to be ordered, that he was driven to the expedient of asking to be made a party in order to gain, if possible, further delay. To allow such a practice to prevail in a court of equity would be a reproach to equity jurisprudence. Therefore, without considering under what circumstances it may be proper to allow a 'pendent elite purchaser to be made a party to a cause, it is certain that in this case the circuit court did not err in refusing the petition of the appellant, Connell. Story’s Eq. PI. §§ 156, 351; Harman v. Byram, 11 W. Va. 511; Goddin v. Vaughan, 14 Gratt. 102; Price v. Thrash, 30 Id. 515. It is claimed, however, that the lands purchased by Con-nell were exempted from liability for the debts of the estate and the heir of Moses F. Ward, under the provisions of section 5 of chapter 86 of the Code. The provisions of this section are, that “the estate shall not be liable, if the conveyance was bona fide, and at the tbiie of such conveyance no suit shall have been commenced for the administration of said assets, nor any report have been filed as aforesaid of the debts and demands of those entitled.” Now, whatever may be said of the character of this suit in its inception, it had been converted into a suit for the administration of the assets of the estate of said Ward, and a.report of the debts and demands of those entitled had been filed and confirmed in which said debts were reported to be liens on said lands, before the conveyance to Connell. And further, Connell had actual notice of said debts at the time of the conveyance to him and he was not, therefore, such a bona fide purchaser as would entitle him to the protection of said statute — Easley v. Barksdate, 75 Va. 274. The only remaining.objection which I deem it material to notice, is, that the decree of sale is claimed to be fatally de — 461 — fective on its face, because it orders tlie distribution of the cash payment by tlie commissioners before tbe confirmation of tbe sale by tbe court. The decree does not in terms, direct tbe commissioners to, disburse tbe casb payment before tbe confirmation of tbe sale, but from tbe language used it may be implied that such was the intention, although the implication is equally admissible that the disbursement should be made after tbe confirmation. It merely directs the manner of the distribution of tbe casb payment without fixing the time of tbe distribution. A judicial sale is tbe act of the court and not of tbe commissioner who offers tbe property and receives tbe bids. Tbe sale is not complete until a report of the bidding has been made and confirmed by tbe court. And, therefore, it would be irregular, though not sufficient ground, perhaps, to reverse tbe decree, for the court, by its decree'ordering the sale, to direct tbe disbursement of the cash payment before tbe confirmation of tbe sale — Anderson v. Davies, 6 Munf. 486. Tbe proper rule in such sales is, to direct in tbe decree ordering tbe sale that tbe casb payment shall be retained by tbe commissioners making the sale, or be paid into bank to tbe credit, or tbe suit, subject to the future order of tbe court. Tbe purchase-money being thus under the control of the court, will, upon tbe confirmation of the report or upon setting aside tbe sale, be disposed of in tbe way that shall then seem proper — 2 Nob. (old) Pr. 388. Therefore, upon the law and tbe facts, for the reasons aforesaid, I am of opinion that the decrees complained of should be affirmed with costs to tbe appellees, B. W. Creel’s administrators, and thirty dollars damages. The Other Judges CoNcurred. Decrees Aeeirmed.