Balch v. Zentmeyer

Archer, J., delivered the opinion of this court. Various objections have been taken to the order of the court below, in favour of the appellee, some of which have reference to his right, in any form of proceedings to the fund; and some having reference to the form which he has chosen to adopt. We propose, first, to inquire into the right of Zentmeyer to the fund in controversy. A bill was filed by one of the devisees of Daniel Gaver, to obtain a sale of a portion of his real estate. The court of Frederick county decreed the sale, and the proceeds of sale, as reported by the trustee, remained in his hands, subject to the order of the court. John Gaver was entitled, by the devise of Daniel Gaver, to one-sixth of the land sold; and Daniel Palmer, who is one of the defendants in the cause, claims the proceeds arising from the sale of the one-sixth of the land devised to John Gaver; his pretensions are placed upon a conveyance from John Gaver to Jacob Hay, Sr., and from Jacob Hay to him. [279] John Richter filed his petition after the sale, claiming a portion of the proceeds of John Gaver*s part, upon the ground of an alleged lien he had obtained on John GavePs part of the land, in virtue of an alleged agreement, entered into between John Gaver, Jacob Hay and himself, at the time of the conveyance from John Gaver to Jacob Hay. The claims of Daniel Palmer and John Richter, remained undecided by the court, when at February term 1838, Jacob Zentmeyer filed his petition, claiming the entire fund, upon the ground that he became the purchaser of the land devised by Daniel Gaver to John Gaver, under a fi.fa. issued by him, on a judgment obtained against Jacob Hay, Sr., subsequent to the- deed from John Gaver to him. The decision of the court below was in favour of Zentmeyer, to the whole of the fund which proceeded from the sale of the of the land devised to John Gaver. It appears from the evidence in the cause, that on the 22nd of April 1822, John Gaver by his deed duly executed, acknowledged and recorded, conveyed to Jacob Hay all that part or parcel of land, which was the right of John Gaver, in and to all that undivided part of a tract of land called The Land of Promise, which was devised by Daniel Gaver to Susannah, (then the wife of Jacob Hay) as a life estate, and to which John Gaver was entitled to an undivided interest, and the deed proceeds to set out the metes and bounds of the land, an undivided sixth of which was thereby conveyed. On the 29th October 1822, Jacob Zentmeyer recovered a judgment in Frederick county, against Jacob Hay, and issued a fi.fa.thereon, returnable to the following March term of that court. The sheriff under th of. fa., levied on the following property, to wit, “all the right, title, interest and estate of said Jacob “Hay, of, in, and to, all that tract or parcel of land, on which-“the said Jacob Hay lately resided, and heretofore devised to “Susannah Hay, wife of the said Jacob Hay, by Daniel Gaver,, “deceased, by last will and testament, dated on or about the “12th day of April 1798, with the buildings, &c.” — and to' the March term, 1823, the sheriff returned, made, to amount of $39.65, and nulla bona for residue. [280] On the 20th of August 1832, the sheriff who had made the sale, executed a deed to Zentmeyer (reciting the fi. fa., levy and sale to Zentmeyer,) conveying to him as the purchaser the land thus levied upon and sold, which deed is in the usual form. It is undoubtedly true, that Zentmeyer must show himself entitled to the land, before he can establish his claim to its proceeds; and it is objected, that he has shown no title. This . objection is rested on three grounds. 1. That the schedule of the sheriff is void upon its face for uncertainty. 2. That the levy if correct, was not on Jacob Gaver’s interest, but on the interest of Susannah, the wife of Jacob Hay, acquired by him by his marriage, and that consequently there was no sale of John Gaver’s interest. 3. That Palmer was entitled to priority, being a subsequent purchaser without notice. 1. There is no uncertainty in the description itself, and the schedule, and deed, would not be void for uncertainty in consequence of any thing apparent on their face. If there be land on which Jacob Hay resided, and which was devised to Susannah Hay by Daniel Gaver, and to which John Gaver had an entire or undivided interest, and which was by John Gaver conveyed to Jacob Hay, undoubtedly the title of Jacob Hay would pass under such a sale to Zentmeyer. All the title of Hay in the land answering the description would pass, whether his title was derived by deed from John Gaver, or in part in virtue of his marriage with Susannah. The description is definite, and clearly capable of ascertainment. 2. The above remarks might furnish a sufficient answer to the second objection to Zentmeyer’s title; but we will advert to this objection more particularly. The will of Daniel Gaver proved in 1798, having reference to this question, is in the following words: “Item — I give and devise unto Susannah BecJcenbaugh, who lives with my son John, and who had by him seven children, hereinafter named, all that part of my tract of land called The [281] Land of Promise, which lays on the south east side of Middle Creek, which part I suppose, contains 400 acres; this said part I devise to her for the term of twelve years from this time, as she now possesses it; at the expiration of that time, I direct the said 400 acres to he divided into three parts, one of the said parts I devise to the said Susannah Beckenbaugh during her life. The other two parts, I direct my executors to rent out on the best terms by my exeuctors, and the rents arising from the lands, to he put out on interest immediately they can be received. These devises to the said Susannah Beckenbaugh, I make to her, to enable her to raise, maintain and educate the seven children my son John had by her.” Then after devising sundry lands to his wife, he directs that when his grand son Henry comes of age, all his lands shall be equally divided among his seven grand-children.” The sale to Zentmeyer, was of all the right oí Hay to the lands devised to Susannah by Daniel Gaver. The land devised to her, was first the whole Land of Promise for twelve years; and after the expiration of the twelve years, the one-third thereof, to her for life; and after her death, the one-third thus devised to her, passed under the will in undivided rights to his grandchildren, of whom John Gaver was one. The twelve years above referred to, had expired in 1810, and at the date of the levy and sale, Susannah Hay was in possession of her life estate under the devise, and Jacob Hay had a right to one-sixth of the reversion, after the death of his wife, in virtue of the deed of John Gaver to him, dated 18th of April 1822. There would seem, from the statement of the case, to be no difficulty in ascertaining what passed under the sale. The right of Jacob Hay to the land devised to his wife Susannah, passed, whatever was the nature or character of that right. If he possessed, in virtue of his marriage any right, that passed; and if he acquired right under the deed from John Gaver, as he did, they likewise passed. For the reference in the schedule to the lands devised to Susannah is not intended to indicate the estate which was seized, (that is, that it. was her life estate which was seized,) but was intended as a description of the land taken, and [282] it will therefore pass any interest, which he had either in the-life estate or in the reversion. For the third objection, there is as little pretence. Palmer could not be considered as a purchaser without notice. The return of the sheriff, connected with the levy, made long before his deed from Hay, indicated that there had been a sale of the land by the sheriff to some one. That this was known to Palmer, and that he further knew that Zentmeyer was the purchaser, is abundantly apparent from his inquiry made of the sheriff, whether he had ever executed a deed to Zentmeyer, not aware that the sale passed the title, when properly evidenced, and not the sheriff’s deed, he rejoiced at the omission of the sheriff to make the deed, and supposed, as we may infer, from his subsequently taking a deed from the sheriff, that he could overrule the claim of Zentmeyer. The- claim of Richter to a portion of this fund, is unsupport® . ed by any evidence as against Zentmeyer. There are various objections urged to the form of the proceedings- adopted by the appellee to obtain his claim. We have given to them all, a very careful examination; and will proceed to state the conclusions to which we have arrived. It is supposed, that instead of a petition, the appellee should have filed a bill of review. This objection is founded upon-the idea, that a decree of the court had passed, recognizing Palmer’s right to the lands. But we do not perceive that the decree has- any such result. It directs a sale for the purpose of distribution among the parties who shall appear on the final hearing to be entitled; but determines nothing in favour of Palmer, and leaves open the question whether the conveyances to Palmer, passed to him such a title in the lands, as would entitle him to a distributive share. Again it is said, that the decretal order of 15th of November 1838, was erroneous, because the petition on which it was founded, made no person defendant; prayed no relief against any one, nor was any copy thereof or order nisi served on any one, prior to the order above referred to. As the fund was in court, and as some of the persons claiming, the fund were par283 ties to the suit originally, and as the other claimants were in court, it was unnecessary to pray a subpoena. The object of the service of a copy and order nisi, is to give notice to the opposite side, that he may appear and contest the claim. It appears in this case that those opposed to the claim of Zentrneyer, did immediately after his petition, appear and contest the same, so that no surprise has been occasioned, or injury effected, by the failure to give notice, &c. And we therefore think they cannot object to the proceedings. As the petitioner prayed that the fund should be paid to him, which was then in court for distribution, to the person or persons entitled thereto, it was equally unnecessary to have prayed relief against any one. He sought the fund, and not a decree for relief against any one of the parties. We have noticed the prominent objections and exceptions which have been taken to the orders appealed from. There are others of minor importance, and as this opinion has already been ■extended further perhaps than was necessary, we shall content ourselves by saying, that after having given them all an attentive consideration, we cannot perceive that any of them can be sustained. The orders appealed from are affirmed with costs. In making this affirmance however, we desire to be considered as expressing no opinion on the right of the trustee in his own name to prosecute this appeal in behalf of parties present in court, and litigating their claim by their solicitor. decree affirmed.