Stone v. Tyree

5 S.E. 878, 30 W. Va. 687, 1888 W. Va. LEXIS 12

• Court: West Virginia Supreme Court
• Decided: February 11, 1888
• Status: Published

Opinion

GREEN, Judge:

The counsel for the appellants insist that this cause should be decided upon the case as it was when the summons was issued January 15, 1885, and that the rights of no parties to this cause can be changed by the fact that Robert L. Parrish, the administrator de bonis non with the will annexed of Samuel Brown, deceased, who had qualified as such in this State, one week afterwards, on January 22,1885, conveyed the 376 acre tract lying in Fayette county, W. Va., to the defendant William M. Tyree, by a deed which was duly recorded after-wards ; 'that this conveyance was made pendente lite, and therefore can not affect the rights of any of the parties to this suit. This position can not be sustained; for, so far as is shown by this record, this deed of the land, the subject of controversy, was not made pendente lite. The law is thus stated by Judge-Green in Newman v. Chapman, 2 Rand. 93:

“ The necessity of the doctrine of Us pendens is so obvious that there was no occasion to resort to the presumption that the purchaser had notice, or by inquiry might have had notice, of the pendency of the suit, to justify the existence of the rule. In fact, it applied in cases in which there was a physical impossibility that the purchaser could know, with any possible diligence on his part, of the existence of the suit, unless all contracts were made in the.office from which the writ was issued, and on the last moment of the day; for at common law the suit was pending from the first moment of the day on which it was issued and bore teste; and a purchaser on or after that day held the property subject to the execution upon the judgment in that suit, as the defendant would have held it if no alienation had-been made. The court of chancery adopted the rule, in analogy to the common law, but relaxed in some degree the severity of the common law; for no Us pendens existed till the service of of the subpoena, and bill filed, but it existed from the service of the subpoena, although the bill was not filed until long after. So that a purchaser after the service of the subpoena, and before'the bill was filed, would, after the filing of the bill, be deemed to be a lite pendente purchaser, and as such be bound by the proceedings in the suit, although the subpoena gave him no information as to the subject of the suit. A subpoena might be served the very day on which it was sued out, and there is an instance in the English books of a purchaser who purchased on the day the subpoena was served, without actual notice, and who lost his purchase by force of this rule of law.”

The law as thus stated was acted upon by this Court in Harmon v. Byram’s Adm'r, 11 W. Va. 511. The first point in the syllabus of that case is: “A subpoena served is not a sufficient lis pendens-, but when the bill is filed the lis pen-dens relates back to the service of the subpoena.” As the bill in this case was filed at the March rules, 1885, the lis pendens relates back, not to the 15th of January, 1885, the day the summons was issued, but to the day it was served. Now, the appellants, who rely here, as they did in the court below that this deed to William M. Tyree of the tract of land of 376 acres in Fayette county, W. Ya., came within the rule of Us pendens, must show that this summons was served on some party to the suit prior to the making of this deed. The burden of showing this is on the plaintiffs below, (the appellants.) In the record before us they not only fail to do so, but the record goes very far to show that the summons in this case was not served on any of the defendants prior to or on the 22d of January, 1882. The record shows that it never was served on any defendant except William M. Tyree. All the others were non-residents, and were proceeded against by order of publication, and never did in any answer or in any manner appear in this cause.

It is true that the record shows that this summons was served on William M. Tyree, and while the court below knew exactly on what day it was served, yet the plaintiffs in tin's cause (the appellants) in having the copy of the record made out, content themselves with the certificate of the clerk that the summons was issued on January 15,1885, and that it, was duly executed on William M. Tyree, the only home-defendant; but there is no statement as to when it was served, though the return of the summons that it was served on William M. Tyree, which was what the clerk based this certificate on, showed the day it was served; yet the clerk fails to certify on what day it was served, — the plaintiffs’ counsel, who had this record copied, doubtless regarding it as unimportant to state the day, as it was subsequent to January 22d, 1885, and unless he could claim that the suit, so far as this rule of lis penclens was concerned, related back to the issuing of the summons, the exact date of its service he regarded as immaterial. That he can not claim the lis pendens as relating back to the issuing of the summons, but only to the time of the service of the summons, we have shown. The failure oí' the plaintiffs, when it was so easy for them to have the record so made as to show when the summons was served on William M. Tyree, as well as the failure to allege in the bill that this deed was executed after the summons was served on William M. Tyree, is, it seems to me, strong evidence that it was served after January 22d, 1885. And I further suppose that this was so, because, agthe defendant was in Alleghany county, Va., a week after the writ was issued, as shown by this deed being there and then executed to him, it is highly improbable that this summons had then been served. The wording of the decree of the court below shows that the court regarded the making of this deed as making good the public sale of this land to Willian M. Tyree; and the inference from this is that this deed was not made after the service of the summons on him in this cause.

But I regard it as really unimportant in this particular casefwhether it was or not, because this public sale to William M. Tyree of this tract of land in West Virginia was made under such peculiar circumstances as rendered it valid and binding on the appellants; and this sale should have been enforced specially by a court of equity, even if the law should be, as claimed by the appellants’ counsel: that an administrator de bonis non with the will annexed can not make a sale of real estate without having first qualified in the State, though the will of the testator authorized a sale by his executors of all his real estate wherever situated. I propose to show that the facts in this case render this public sale valid, even though when it was made, Bobert L. Parrish, .the administrator, etc., could not, if the facts had been different, make a valid sale of the West Virginia lands.

It is recognized as law that if the owner of real estate, whether he has the legal title in him or not, permits such real estate to be sold in his presence by another who claims to be the owner of the land, or by one who claims that he has full authority and power to dispose of the same, it is the duty of the true owner of the land to assert his claim then ; and if he stands by and permits an innocent purchaser to buy such land from such person claiming to have full power to dispose of it,.he will be estopped thereafter from setting up any claim to such land, because of a want of full power and authority on the part of the person selling it. to make good title thereto, as against such innocent purchaser, by his acquiescence at the time in the legality of such sale made in his presence.

Whenever in this or in any other manner such owner of land misleads another by his conduct or words into the belief that a third person owns certain land, or possesses full power and authority to sell it, and he knows that such conduct or words would naturally have this effect, whether he intended then to defraud such purchaser or not, he will not only be estopped from claiming against such 'innocent purchaser'this land'because iii fact the person so selling- it a§ his own, or as having full power and authority to sell it, either did not own it, or had no authority to'sell it, such as he claimed, but the courts of equity go further, and would, under such circumstances, compel him to convey such land to such innocent purchaser; otherwise such owner of the land would be permitted by claiming it to commit a fraud on such innocent purchaser, whose title or right does not depend' upon the authority or title to sell of the person of whom he purchased, but is derived from the acts of the real owner, precluding him from disputing what he had in eifect asserted,- — the right of such third person to sell this land. This he would not be allowed to do to the prejudice of the innocent purchaser whom he had so misled. See Jowers v. Phelps, 33 Ark. 468; Powers v. Harris, 68 Ala. 409; Lippmins v. McCanie, 30 La. Ann. 1251; Pence v. Arbuckle, 22 Minn. 417; Chapman v. Pingee, 67 Me. 198; Eldridge v. Walker, 80 Ill. 270; Favill v. Roberts, 50 N. Y. 222.

This last case, while laying down the law of estoppel in pais no stronger than other cases, is yet so pertinent to the case before ps that I will state the facts of the case, as stated in Jowers v. Phelps, 33 Ark. 468. “Estoppels in pais depend upon facts which are rarely in any two cases precisely the same. The principle upon which they are applied is clear and well defined. A party who by his acts, declarations, or admissions, or by failure to act or .speak when he should do so, either designedly or with willful disregard of the rights of others, induces or misleads another to conduct or dealings which he could not have entered upon but for this misleading influence, will not be allowed afterwards to come in and assert his right to the detriment of the person misled. This would be a fraud. But it is difficult to define special acts or conducts which in all cases would amount to an estoppel. Generally it is said that if the owner of property, with a full knowledge of the facts, stands by and-permits it to be sold to an innocent purchaser without, asserting his claim, he will be estopped. Although this will not embrace all species of estoppel in pais, which may be as diverse as the nature of human transactions, it is, so far as it' sroes. about as safe and correct a rule as can be formulated. The leading idea is that a person shall not do or omit to do anything with regard to his rights which, if taken advantage of by him, would work a fraud upon another; but in this, as in all other cases involving fraud, the exact limits and boundaries of fraudulent conduct are left undefined, to be applied by the chancellor to the facts before him. There are no cases which seem to require the equitable owner of property to be active in seeking one about to take the legal title, for the purpose of advising him against it. He must see to it at his peril that some mode which courts of equity recognize as sufficient notice of his equity be given to all the world, or that such particular notice be brought home to the purchaser as should put him upon it until inquiries be made, upon which there would devolve upon him the further duty of full, frank and explicit explanation. Men are not required to be clamorous in asserting their rights, or to be active in seeking;others about to deal concerning them in order to prevent anticipated mischief. To stand by and see a sale to an innocent purchaser would be, however, a breach of moral duty, unless the owner meant to abide by it.”

This defines more accurately than I have seen else-, where an estoppel in pais when applied to the sale of real estate.

The case of Favill v. Roberts, 50 N. Y. 222, corresponds more nearly in its facts to the case before us than any other I have seen. The syllabus is : “When a will gives to the executor no authority to sell the testator’s real estate, or to control it, but with the knowledge oí' the heirs he applies to the court, and obtains an order authorizing him to sell, and with the consent and request of the heirs he does negotiate a sale, receives the purchase-money, and conveys by deed, the heirs also informing the purchaser that the executor is the authorized agent to make the sale, the purchaser has a right without further inquiry to rely on the truth of such assurance, and the heirs are estopped from disputing them or thereafter asserting title to the land conveyed upon the ground of want of authority in the executor. And when the purchaser has paid the contract price, entered into possession, and made valuable improvements with the knowledge of the heirs, he can maintain an action against them to compel them to execute a conveyance to him, so as to give him a valid title.”

The court says, page 226: “The purchaser was under no obligation as to them to examine the will, the order, or the papers upon which it was founded. There was nothing to excite suspicion. The plaintiff was the purchaser and parted with his money in good faith. If the appellants knew that the order was invalid, they were guilty of a gross fraud, which would be successful unless they are estopped from disputing the assurances given by them upon which the plaintiff acted in making the purchase and parting with his money. Under these circumstances they are estopped. Storrs v. Barker, 6 Johns. Ch. 166; Higginbotham v. Burnet, 5 Johns. Ch. 184. But suppose, what is more probable, that they were ignorant of the invalidity of the order of the court and really believed it conferred power on Lewis to sell and convey their interest in the land; this will not aid the appellants. We have already seen the plaintiff had the right to assume that they were acquainted, with their own title, and with the extent of the authority of Lewis to dispose of their interest in the land, and to act upon such assumption. See Storrs v. Barker, 6 Johns. Ch. 166. The counsel for the appellants insist that a party is not estopped by his assurances as to the law. But the assurances of the appellants were not confined to this; their correctness depended much more upon facts than upon legal conclusions. To determine whether Lewis was authorized by the order to make sale, a knowledge of the contents of the will was necessary, and of the proceeding procuring the order. Of these the plaintiff was ignorant, but the appellants were presumed to know. These might have been such as to make the order valid; and the plaintiff had a right to act upon the assurances of the appellants to that effect, and having so acted, paid his money, entered into possession, made valuable improvements with their knowledge, equity will estop them from asserting title to the land upon the ground of want of authority in Lewis to make the sale. But this is an action of the plaintiff to compel them to execute a conveyance to the plaintiff, so as to give him a valid title of record. The proof of the facts estopping the appellants depends upon the testimony of witnesses which may be lost by their death. Under such circumstances, an action in equity will be sustained to remove the clouds and perfect and quiet the title. Wood v. Seely, 32 N. Y. 105.”

The facts in this case which estopped the appellants from objecting to the sale of the 376 acres of land by Parrish, on the ground that he had not qualified as administrator d. b. n. c. t. a. in West Virginia, are as follows : They and all the other devisees and legatees of Samuel Brown had, on March 6,1874, together with the widow of' Samuel Brown, entered into an agreement, given in full in the statement of this case, that whenever a majority of the parties interested in the estate of Samuel Brown (and they were, by his will, being his children, all equally interested, except the widow, with whom they compromised by this agreement) should deem it advisable to make sale of all his real estate as provided by his will, (which was by a sale by his executors,) the whole of it should be sold, including the dower-interest of his widow, she being entitled to a commutation for her dower out of the proceeds of the sale. Parties owning seven out of nine of these equal interests, together with the widow, had on or about June 16,1883, requested in writing Kobert L. Parrish, who had qualified as the administrator de bonis non of Samuel Brown in Virginia, to sell at the earliest practicable period all the lands belonging to the estate of Samuel Brown, deceased.

It is of course to be presumed that they then knew that neither he nor any one else had qualified as the personal representative of Samuel Brown, deceased, in West Virginia. This presumption arises, not simply because every one is presumed to know what relates to the title to his own land, — as was done in the New York case, — but from the fact that it would seem impossible that they should be ignorant of the qualification of any pne in West Virginia to administer on their father’s estate, as he owned nothing in this State but this single tract of land of 376 acres in Payette county, and no one could qualify there as his representative with any other view or purpose than to sell this land, which really belonged to them, the children of the testator; and their previous evident agreement with reference to the sale of his real estate shows that they were attending to and looking after the sale of this real estate. Knowing all the facts, they gave this written direction to the administrator de bonis non in Virginia to sell these lands at the earliest practicable period. This direction was signed by all the plaintiffs in This chancery suit, as well as by nearly all the other children of Samuel Brown, as well as his widow. The plaintiff's signed these written directions.

June 16, 1883, Robert L. Parrish, administrator with the will annexed of Samuel Brown, deceased, in accordance with this request advertised all the lands of Samuel Brown, deceased, extensively by hand-bills and in various newspapers, to be sold at public auction at Callaghan’s Station on the Chesapeake & Ohio Railroad. This advertisement was signed by him as administrator de ionis non with the will annexed of Samuel Brown, deceased, but it did not state where he had qualified, — whether in Virginia or West Virginia, or whether in both of these States. The lands advertised consisted of the “home-place” and one other tract of land in Alleghany county, Va., and this tract of 376 acres in Payette county, W. Va. The widow, the plaintiffs in this suit, and at least two others of her children, devisees and legatees as appears from the bill in this cause, and the proceedings in the chancery suit in the Circuit Court of Alle-ghany, referred to in the bill, were present at this sale.

Though most of the family were personally present at this public sale and taking a deep interest in it, all of them, including the plaintiffs, saw this tract of-land of 376 acres lying-in Payette county, W. Va., sold by their direction, at public auction to William M. Tyree, a resident of Payette county, W. Va., for $1,128.00, its fair market value then; and saw Tyree comply with the terms of the sale, at once paying-down to Parrish, one-third of the purchase-money, and executing his bonds to Parrish, payable in one and two years, with interest from date, and giving good personal security for these deferred payments, and none of them intimated that he had not full authority to sell this tract of land, and while some of the parties interested, including the plaintiffs in this suit, protested against the home-place being sold at $6,500.00, the highest bid for it, and threatened to bring a suit to have this sale of the home-place set aside, claiming that it was worth $8,000.00, yet, no protest or dissent to this 376 acres being cried down to Tyree at the price he bid for it, was made, either by the plaintiffs in this suit, or any one else, nor was any sort of objection made to this sale to Tyree by the plaintiffs or any one else, till about 13 months after this sale when two of the plaintiffs in this suit filed an exception to a commissioner’s report in the chancery suit in the Circuit Court of Alleghany county, Va., because this land lay in West Virginia, and the will of Samuel Brown had never been admitted to probate in that State, and, no one having qualified as administrator in West Virginia, no one had authority to sell this tract of land. Though these very parties and the other plaintiffs in this chancery suit now before' us had some seven months before filed a cross-bill and answer in this suit in the Circuit Court of Alleghany county, Va., in which they sought to set aside the sale of the home-place in Alleghany county, Va., as sold at an inadequate price, they made no sort of complaint of this sale of the Fayette county land. But they state that at this public sale of this land, at which they were present, “they believe that this Fayette county land had sold for a sufficient sum,” and made no statement that Parrish was not fully authorized to sell the same at this sale.

Now the plaintiffs in this chancery suit now before us must be estopped from ever claiming title to this tract of land in Fayette county so sold by Robert L. Parrish, administrator with the will annexed of Samuel Brown, deceased, at a public auction at their request, and in their presence, of which sale they made no complaint for more than a year. If ever there was a case where parties should on the princi-jjles we have stated be estopped from now denying the authority of the administrator, to sell the land, surely this is a proper case. They knew, doubtless, as a matter of fact, that R. L. Parrish had never qualified as the personal representative of their father, Samuel Brown, deceased, in the State of West Virginia, and they would be by the law presumed to know this. The purchaser, William M. Tyree, makes no inquiry upon the subject, being lulled to sleep by their conduct. He had a right to assume, under these circumstances, that the authority of R. L. Parrish, was unquestionable as it was unquestioned to sell their Payette county, W. Va., land either by his having qualified in West Virginia as the personal representative of Samuel Brown, or by a proper power of attorney executed to him by the devisees and legatees of Samuel Brown, or in some other manner. He was publicly proclaimed as having this authority by the extensive advertisement of the sale of this land by him as administrator de bonis non of Samuel Brown; and Tyree was further assured of it by this sale in £his capacity being made in the presence of most of the family, and especially of the plaintiffs in this suit, without the slightest intimation that there was any defect in this authority to make this sale in the capacity -and manner in which it was made. He paid his money and complied with the terms of the sale, and it would be a fraud on him to permit the plaintiffs in this suit to be allowed to set it aside because it was unauthorized. If they had. any such objection to this sale, they were bound to make it on the day of sale, and before an innocent purchaser of this land had made the cash-payment, and given security for the deferred payments.

When R. L. Parrish subsequently had the will of Samuel Brown admitted to probate in Fayette county, W. Va., and qualified as the administrator de bonis non of Samuel Brown, he properly approved this sale; and, had he violated his faith, and accepted a higher price for this land, offered by another more than a year after the sale to William M. Tyree, as the appellants’ counsel claims he ought to have done, the court would have enjoined him from so doing, and compelled him to convey this land to William M. Tyree whenever all the purchase-money due was paid by him.

Counsel, both for the appellants and appellees, have discussed the following questions at great length: “First. Could Parrish, by virtue of his appointment and qualification in Virginia, sell and convey lands in West Virginia? Secondly. Could the court of Virginia, by confirming such a sale of West Virginia lands, render such sale valid, and by its commissioners pass title to such West Virginia lands ?” Many authorities were referred to by both sides on these questions. I have not examined the authorities because, according to the views above expressed, it is entirely unnecessary to decide the questions in this cause.

While the decree of the Circuit Court of May 28, 1886, might well be criticised, yet there is nothing in it prejudicial to the appellants, but it is prejudicial to the appellees, obviously, in this: that.while it dismissed the bill of the plaintiffs, it does not decree that they should paj^ to the defendant, William M. Tyree, his costs in the Circuit Court of Fay-ette county expended, as it should have done. In this respect it must be amended, and then affirmed, and the appel-lees must recover of the appellants their costs in this Court expended and $30 damages.

Amended. Affirmed.