Pennybacker v. Switzer

75 Va. 671

• Court: Supreme Court of Virginia
• Decided: September 15, 1881
• Status: Published

Opinion

Staples, J.,

delivered the opinion of the court.

Prior to the revised statutes of 1849 and 50 the county courts were clothed with authority to decree the sale of infants’ land upon the application of the guardian, either where it was made to appear that the interest of the infant would be promoted by a sale and the investment of the proceeds, or where it was shown in such suit it would be for the interest of the infant to have the land sold and the proceeds applied to the ancestor’s debts in order that the slaves might be exempt from such liability. (Sup. to E. C., ch. 166, p. 223-4).

The records of the present suit were destroyed by the Federal forces under General Hunter during their invasion of the Valley in the year 1864. There is enough, however, to show that the bill was filed by the guardian in the county court in the year 1847 for the sale of his ward’s real estate under the provision of the statute just alluded to. It does not appear whether the sale under the decree of 1848 was made for the payment of the ancestor’s debts, or upon the ground that the interest of the ward would be promoted by a sale and the investment of the proceeds in some other security. The decree merely recites that the “ court was satisfied from the evidence that the interest of the infant defendants manifestly requires the sale of the land.” It is possible that the bill was framed with both objects, or that it was made to appear in the progress of the suit that a sale of the real estate was necessary for the payment of debts and for the exoneration of the intestate’s slaves. It is in proof that the intestate was indebted at the time Of his death to the amount of two or three thousand dollars, and it is most probable these debts were paid out of the proceeds of the land sales. At all events, the Shenandoah lands were sold under the decree of 1848—the sale was duly confirmed and the title conveyed to the purchaser or purchasers. No question is made or has been raised as to the validity of these sales or as to the title so conveyed. The property involved in the present controversy consists of a house and lot in the town of Harrison-burg. It was sold under a decree in the same suit rendered in the year 1863—was purchased by the appellee at the price of $4,000 in Confederate money, which was paid to a commissioner or receiver of the court and a deed of conveyance duly executed to the purchaser.

The validity of this decree and sale is controverted by the appellant, who was then an infant, upon several grounds. The main one of which is that by the revisal of 1849 and 1850 the jurisdiction of the county courts was taken away in suits by guardians for the sale of infants’ lands, and was thereafter vested exclusively in the circuit courts, and consequently the decree of 1863 was coram nonjudice, and therefore void. The general statutes divesting the jurisdiction of the county courts in this class of cases were, however, subject to an important qualification or proviso, found in the 3d section, chapter 157, Code of 1849, which declares that “the county and corporation courts shall have jurisdiction to hear and determine all cases at law or in chancery which were then pending in these courts except criminal cases.”

It has been argued, however, that this provision has no Just application to the present case, because the sole object, of the suit by the guardian was the sale of the Shenandoah lands, and that object was fully accomplished and the case practically terminated by the decree of 1848, and the proceedings thereunder, and after the repeal of the statute giving the county courts jurisdiction of suits by guar-, dians. It was not competent to make a new case or to obtain relief not contemplated by the original bill. We do not know, however, that a new case was made, nor do we know the nature and extent of the relief prayed for in that bill. It has been destroyed along with the other records, and we have no means of ascertaining its contents. If it was properly framed it set forth all the real and personal estate of .which the intestate died possessed. It may have asked for a sale of the entire realty, and the parties may have become satisfied that a sale of part only was then necessary. But suppose the bill prayed.for the sale of the Shenandoah lands, surely it would have been important to amend and ask for a sale of any other estate of which the decedent died possessed. If a creditor or guardian files a bill praying for the sale of one tract, and it appears in the progress of the cause that a sale of other-land is proper, cannot the bill be. amended accordingly without being obnoxious to the criticism of making anew case ? So far from it, the amendment is directly in the scope of the original bill, and in innumerable instances is essential to the great purpose of effecting complete relief and putting an end to litigation. When the legislature authorized the county courts to hear and determine all pending suits its manifest design was to enable that court-to make such determination as was essential to the purposes of justice and to do whatever might be properly and legitimately done in a pending cause by any court, under the forms and rules of proceeding recognized by the equity courts. If this were not so it is obvious that the court, must often stop half way in its measures of relief, and the-parties turned around to a new suit in the circuit court, to commence precisely where they left off in the county court. Such a course of proceeding could only result in great confusion and useless expense and delay.

It seems to us that the true construction of the statute is that as to pending suits the jurisdiction of the county courts remained precisely as though no change had taken place in the law. This seems to have been the construction then given to it, and it is highly probable that numerous titles all over the State are derived from decrees thus obtained in pending suits.

In what manner the question of the sale of the property in controversy was brought to the attention of the county court in 1863, we have no means of ascertaining. The universal rule which presumes it was rightly done, applies, as-will be hereafter seen, as well to that court as to any other' court. We are as much warranted in making that presumption in face of the decree and sale of 1863, as the decree and sales of 1848. In neither case have we any proof that the necessary steps were taken to warrant the sale of the appellant’s real estate.

It has been said, again, that the cause was retained on the' docket for thirteen years, and the conclusion is sought to be deduced that it was practically an ended case, and incapable of being revived. Every one at all familiar with the history of the old county courts of Virginia is well aware of the long-continued pendency of cases on the-dockets of those courts, without even a motion or order for years, except continuance. Under our statute, such cases so pending for more than seven years may be struck from ''the docket, capable, however, of being reinstated, on motion, within a year. Code of 1849, chap. 174, § 7. But until the order of dismissal is actually entered, the case is considered as still pending in court for all purposes of litigation and relief as any other pending suit.

There is nothing—literally nothing—to show that the suit in which the decree of 1863 was rendered was ever dismissed or stricken from the docket. Certainly neither the counsel nor the court so regarded it. The attorney who obtained that decree was the same who filed the bill and obtained the decree of 1848. He was the uncle of appellant, and is proved to have been a lawyer of ability and learning in his profession. The presiding justice of the court, when the decree was entered, was also an uncle of the appellant, and was the guardian who filed the bill in the case. That the decree was not entered without consideration, is apparent from the fact that the court refused at one time to decree a sale because the case was not then fully prepared, and it was not until the next term the cause was deemed ready for a hearing. It further appears that Mr. John C. Woodson, a lawyer noted for his accuracy, and who was also connected by marriage with the appellant, prepared the deed to the appellee. His statement is, that in so preparing it he had the “ original papers before him, or a copy of the decree of 1863—most likely the papers— and that the facts are correctly recited in the deed.” The facts there stated, so far as they go, corroborate every view here taken.

Much reliance is placed on the fact that Mr. iSTewman, who was guardian in 1847 and 1848, and who filed the bill, had ceased to be guardian in 1863, when the decree was entered; and it is insisted there is nothing to show any revival in the name of the succeeding guardian. Admit that Mr. Hewman had in fact resigned his office, are we to suppose that neither he, as presiding justice, nor Mr. Bryan, the counsel, nor Mr. Woodson, who prepared the deed, paid any attention to the fact, and that they were willing to have a doubtful title palmed upon an innocent purchaser ? We ought to apply the maxim “Omnia prcesumuntur rite esse aeta” to sustain the decrees of a court, rather than by forced presumptions to defeat them.

But let it be conceded that the court proceeded in the name of a former guardian, after he had resigned his office, does that fact invalidate the decree and the title of an' innocent purchaser in a collateral suit ? If it does, then the most solemn adjudication of a court may be rendered void anywhere, at any time, upon the loose statement of witnesses that a party to a cause had died, become convict, or had resigned his office previous to the rendition of the decree or judgment which is assailed. The establishment of such a doctrine would destroy all fath in judicial proceedings; for if no notice of the fact appears upon the record it is impossible that third persons could know of the resignation or removal of the guardian or other fiduciary. The rule is well settled, as it will be hereafter seen, that the judgment of a court of record cannot be collaterally assailed except for errors affecting its jurisdiction.

It has been argued that this does not apply to the present case, because the county courts of Virginia in 1863 were courts of inferior and limited jurisdiction. This position is in conflict with the decisions of this court and of the supreme court of the United States in various cases. It is very true that these courts were courts of inferior jurisdiction, but only inferior in the sense of any other court whose judgments may be reversed on appeal or writ or error. With respect to all powers vested in them, whether exercised according to the course of the common law or by statute, they were courts of general jurisdiction to the same extent as the circuit courts. In both instances the same presumption arises with respect to the conclusiveness of all the proceedings and judgments of the court. Upon this subject, we refer to the case of Harvey v. Tyler, 2 Wall. 328, and Ballard et als. v. Thomas & Ammon, 19 Gratt. 14. In the latter case it was held that an order of the county court laying a levy is an adjudication of the facts necessary to authorize the proceeding, and that adjudication ■cannot be called in question in any collateral proceeding bou ever erroneous it may be. See also Lancaster v. Wilson, 27 Gratt. 629.

In the case of Thompson v. Tolmie, 2 Peters 157, a decree for the sale Of the estate of three orphans was assailed in .a collateral suit as invalid, on various grounds. The supreme court said the counsel for the defendant in error have in the argument considered the proceedings open to the same examination and objection as they would be in an appellate court on a direct proceeding to bring them under review. This is not the light in which we view the question now before us. The general and well settled rule of law is that when the proceedings are collaterally ■drawn in question and it appears upon the face of them that the subject matter was within the jurisdiction of the court, they are voidable only. The errors and irregularities of any court are to be corrected by some direct proceeding" either before the same court to set set them .aside, or in an appellate court.

One of the leading cases on this subject is that of Voorhees v. Bank of United States, 10 Peters 449, in which the validity of a sale under an attachment in a county court was collaterally drawn in question. The errors assigned in the proceedings were numerous and palpable. The counsel in that case argued that as the jurisdiction of the court was statutory and special, the record must show affirmatively the evidence of a compliance with the terms prescribed by law in making the sale. The supreme court said that although the proceeding was statutory it was the judgment of a court of competent jurisdiction, and there is no better settled principle of law than that the act of such .a court shall be presumed to have been rightly done till the contrary appears. Every matter adjudicated becomes a part of the record, which henceforth proves itself without referring to the evidence on which it has been adjudged; and even if there be the most palpable errors in the proceedings, amounting to a total failure to comply with the requirement of the statute, they cannot in another suit affect the validity of the decree or the title unless they be such as show a want of jurisdiction in the court.

In Cornett v. Williams, 20 Wall. 249, Mr. Justice Miller said: <iiThe settled rule of law is, that jurisdiction having attached in the original cause, everything done within the power of that jurisdiction, when collaterally questioned, is to be held conclusive of the right of the parties unless impeached for fraud. Every intendment is made to support the proceedings; it is regarded as if it were regular in all things, and irreversible for error. “ These remarks,” said he, “ apply to the order of sale here in question. The county court had the power to make it, and did make it. It is presumed to have been properly made; and the question of its propriety is not open to examination upon the trial in the circuit court.” See Durrett v. Davis, Guard’n, and als., 24 Gratt. 302. Every case we have cited, whether in this or the supreme court of the United States, is one of statutory jurisdiction conferred upon county or orphans courts, and they leave not a shadow of doubt as to the rule now recognized by the highest courts in this country. They constitute a complete answer to every objection urged by the appellant's counsel, and to every error, real or imaginary, found in the proceedings or the decree of the county court under which the appellant's land was sold. There is no suggestion of fraud, bad faith, or unfair dealing on the part of any one. The character of the parties, the high respectability of the counsel engaged, utterly preclude any such suspicion. The appellee was an innocent purchaser, paying what was then regarded as the value of the property, and there is no doubt the sale was considered as a ■proper and beneficial one. If subsequent events have proved it otherwise, the consequences 'ought not to be visited upon the appellee. The conduct of General Hunter, in his raid upon the Valley of Virginia, is now a matter of history. The records of the courts were destroyed at every step of his disastrous progress, and with them the only documentary proof of innumerable titles under judicial sales; and if this court shall establish the rule that any sale of infants’ lands during the war may be set aside, unless all the proceedings can be shown to be regular, indescribable mischief, loss and confusion will be the result, not only in the Valley, but in many parts of the State.

Before dismissing this part of the case, it is proper to say, the law recognizes no distinction between a decree against an infant and a decree against an adult. And, therefore, it is an infant can impeach a decree only upon the grounds which would invalidate it in the case of another person—such as fraud, collusion, or error. The mere fact of infancy confers in such case no special rights or privileges. And, therefore, it is that the same general presumptions and inferences which apply in favor of decrees against adults, apply in favor of decrees where the rights of the infants are involved. Zirkle v. McCue and al. 26 Gratt. 517.

It only remains to notice the objection that no bond was required of the commissioner or receiver before the purchase money was paid—and no order was made or security given for the investment of the proceeds as required by the statute—the result of all which is the proceeds of sale were squandered and lost to the appellant. Here, again, we are groping in the dark, for literally we have nothing before us to show what orders or decrees were entered with respect to the purchase money, or whether the proper bond was given by the receiver according to the requirements of the statute.

If the rules of law based upon presumptions of the regularity of the proceedings have any force at all, they must apply here as elsewhere. We must, of course, presume, until the contrary is shown, that the court did its duty in requiring an observance of a plain provision of the statute.

But let it be admitted that no sufficient bond was given by the receiver or commssioner, and that no order was made by “the court for the investment of the proceeds of sale; and further, that the purchaser is bound at his peril to see to the proper application of the purchase money for the benefit of the infant; let all this be conceded and the concession would not invalidate the decree of sale or the title of the purchaser.

If the receiver did not give the proper bond, the payment to him was improper, and the property would still be bound in the hands of the appellee for the purchase money upon proceedings had in due time in the original suit. The same is true with respect to the application and investment of the purchase money—matters necessarily occurring after the confirmation of the sale. Whatever rights and remedies the appellant may have had ought to have been asserted in the original suit. As the failure of the county court to secure the purchase money, if such was the case, cannot render the decree of sale void, it cannot be the subject of inquiry and investigation in this proceeding. After what has been said, it is perhaps needless to remark that this is not a bill or petition having for its object the reversal of the decree of 1863 by proper proceedings in that suit, but an original, independent bill, filed in the circuit court by the appellant, asking simply for a partition of the property an controversy. It contains no charge of fraud or collusion against the appellee—it does not even refer to the suit in the county court or to the decree and sale made therein under which the appellee claims title. See Harvey v. Holmes, 20 Gratt. 1. For- the reasons already stated, we think such a bill cannot be sustained and that the decree of the circuit court must be affirmed.

Decree Affirmed.