Mosby & Wife v. Withers' Ex'ors

EauxtleROY, J., delivered the opinion of the court. The first of the decrees which are complained of — that of November 21, 1873 — -was an interlocutory order of the court overruling sundry pleas offered by Ellen A. Withers and J. J. Mosby to a bill of complaint filed against them in this cause by Lewis P. Nelson and John II. Nixej’, executors of the will of James "Withers, deceased, as not. being sustained by the evidence, and giving to the plaintiffs in said bill leave to amend their bill by the insertion of the names of certain parties who were devisees and beneficiaries under the will of their testator, James Withers, deceased. The purport of the said rejected pleas was the alleged pen-dency of another suit between the same parties, in the same court, for the same subject matter with this suit; but the court, upon the suggestion of parties, consolidated the causes and proceeded in them as one cause. In this there is no error. The decree of 8th June, 1877, was an order in the cause, that .unless the said E. Adelaine Withers, or some one for her, shall, within sixty days from the rising of the court, pay over certain sums, or portions of the purchase money, for the tract of land which she had purchased under a decree of the said circuit court, as indicated in said decree; then, for her said default, the land, or so much thereof as should be necessary, should be resold. This vras a proper order in the cause, and simply enforced compliance with the terms of sale made under the decree of the court, by a re-sale in default of payment by the purchaser, E. Adelaine Withers, and her surety, J. J. Mosby. Mrs. E. A. Withers, the purchaser aforesaid, did make default in compliance with the terms, of her purchase, and the land was re-sold under the decree of the comí, and wrns purchased by [85] Mrs. Mosbj, the wife of J. J. Mosby. She failing to comply with the terms of her purchase, when the payments became clue, a rule was awarded by the court against her to show cause why the land should not be re-sold. She showed no sufficient cause, in the judgment of the court, and for her default the decree of June 9th, 1882, was entered, ordering a re-sale. This is the last of the decrees complained of. The ground of error assigned against the last decree is that the court should not have decreed a re-sale until Mrs. Mosby’s interest in the Grigsby estate and' in the amount due from George Eicldin’s estate (which she had assigned or lodged with the commissioners of the court as collaterals to her purchase-money bonds) should be realized, and applied to the discharge of her purchase-money bonds for the tract of land sold by the court, and bought by her as aforesaid. In other words or effect, that the court erred in resorting to the primary subject — the land sold under its decree by its commissioners, without first and finally running down and realizing or exhausting these col-laterals to the purchase-money obligations of the purchaser. The real and only question presented in this record is, whether a chancery court, under whose decree land is sold upon terms, and a reservation of lien upon it, can enforce the terms of sale when default is made in payment of the purchase-money ? But, in this case, the trustee of Mrs. Mosby’s interest reported to the court before the decree for re-sale, which is complained of, was pronounced, that he had made proper effort to collect from the Grigsby estate, but without success; and the Eicklin assets were locked up in chancery suits, then pending, with doubtful issue, and without definite prospect of realizing the fund. We find no error in the decrees of the circuit court of Cul-peper complained of, and tliejT must be affirmed. DECREES AEEIRMED.