Lipscombe v. Rogers

Moncure, P., delivered the opinion of the court. The court is of opinion, that in the decree appealed from in this case, there is nothing inconsistent with anything in the opinion or decree of this court in Alley, &c. v. Rogers, 19 Gratt. 366. This court did not decide in that case the question whether it was necessary to sell the whole of the land conveyed by the deed of trust of the 24th day of May, 1859, not released by the deed of the 28th of August, 1860, in the proceedings mentioned, for the purpose of satisfying the said deed of trust; and it would have been premature, and therefore improper, so to have done; the Circuit court not having decided that question, which indeed it was unnecessary to decide, in the view taken of the case by that court. But, when the decree of this court was entered as the decree of that court, it became necessary for that court to consider and decide the question; and it accordingly decided it on the de [660] cree appealed from. The court is of opinion that there is no error in that decision. But the court is further of opinion, that no decree-for such sale should he made until it is ascertained whether Charles J. Terrell has a prior lien to that of the appellee B. F. Bogers, on a part of the said land, as claimed hy the said Terrell in his petition filed in this case, and what is the amount of that lien; and, therefore, that the said decree, appealed from, was-premature in directing such a sale, and must he reversed on that ground; according to the cases (referred to hy the counsel of the appellee) of Cole’s adm’r v. McRae, 6 Rand. 644; Buchanan v. Clark, &c., 10 Gratt. 165, 182; Jage, &c. v. Bossieux, 15 Id. 84, 103; Smith, &c. v. Flint, &c., 6 Gratt. 40. But the court, inremanding the cause for further proceedings, deems it' unnecessary, if not premature, to give any "directions-for the appointment of a receiver, as is urged hy the counsel of the said appellee Bogers, on the authority of the case above cited from 6 Band. 644; it being perfectly competent for the Circuit court, on consideration of the pleadings and proofs in the cause, and of any other proofs which may he introduced hy any party, to appoint a receiver whenever it shall by that-court he deemed proper to do so. The court is therefore of opinion, that the said decree appealed from is erroneous in the respect and for the reason aforesaid, and doth decree and order that the same he reversed and annulled; and that the appellee B. F. Bogers do pay to the appellants their costshy them expended in the prosecution of their appeal aforesaid here. And it is ordered that the cause he remanded to the said Circuit court for further proceedings to he had therein. Which is ordered to he certified to the said Circuit court. Decree reversed.