Wheeler v. Thomas , 116 Va. 259 ( 1914 )

Whittle, J.,

(after making the foregoing statement) delivered the opinion of the court.

The decree of the Circuit Court of Fauquier county is made the subject of attack on one record in two separates appeals. The record, for that purpose, was divided, part of it was brought up by the appellants in the first appeal and the rest of it by the appellants in the second appeal (the positions of the parties being transposed in the two appeals).

Ample provision is made by statute to have so much of the record as is necessary to fairly present the whole case to the appellate court brought up, and the right of the appellee to assign cross-error is safeguarded by Rule YIII of the rules adopted by this court. That is the usual and orderly method of procedure, and the practice pursued in this case is disapproved.

The assignment of error by appellants in record No. 761 (Thomas v. Wheeler) is to that part of the decree under review which declares, that “the court after mature consideration is of the opinion and doth so decide that none of the allegations of fraud contained in said bill are sustaied, but that the entire good faith of the defendants is established. ”

The history of this controversy given in outline in the statement of the case renders a further review of the evidence unnecessary. It is sufficient to say that the whole of it has received at our hands careful consideration, and that we fully concur in the conclusion reached by the learned circuit court on that branch of the case.

The principal assignment of error made by appellants in record No. 703 (Wheeler v. Thomas.) is to the conclusion of the circuit court that the proceedings in the suit of “Mary E. Buckley by her next friend, Alm'a Thomas, against Alma Thomas and O. L. Thomas, and the decrees in the said cause involving the sale of the real estate in the bill and proceedings mentioned were null and void in so far as the same involved the sale of the life estate of the insane plaintiff, Mary E. Bnckley, because the said court was . without jurisdiction to sell her said interest in said suit and the deed made pursuant to the decree in said cause is null and void. ’ ’

The suit was brought under chapter 117 of the Code, which provides for the sale of lands of persons under disability. So much of section 2616 of that chapter as is pertinent to the case in judgment provides, that if the committee of any insane person thinks that the interest of such person will be promoted by the sale of his estate, or estate in which he is interested with others, whether there be or be not limited thereon any other estate, vested or contingent, and whether the committee of the insane person, or any of the persons interested, reside in this State or not, may for the purpose of obtaining such sale, file a bill in equity in the circuit court of the county in which the estate proposed to be sold, or some part thereof, may be, stating plainly all the estate, real and personal, belonging to such insane person, and all the facts.calculated to show the propriety of the sale. The bill shall be verified by the oath of the plaintiff, and the insane person shall be made defendant and all those who would be his heirs or distributees if he were dead.

Section 2618, so far as applicable, declares that to every insane defendant there shall be appointed a guardian ad litem, who shall answer the bill on oath in proper person; and section 2619 prescribes that no deposition shall be read in the suit against any insane party, unless it be taken in the presence of the guardian ad litem or upon interrogations agreed on by him.

In the instant case practically every requirement of the statute was disregarded. (1) The suit was not brought by the committee of Mrs. Buckley, but by her next friend; (2) The bill does not state plainly all the estate, real and personal, belonging to the insane person, nor does it state all the facts calculated to show the propriety of the sale; (3) The insane person was not made defendant; (4) No guardian ad litem was appointed for the insane person, and, of course, no answer was filed by a guardian ad litem; and (5) the case was heard on ex parte affidavits.

The latest case ifi which this court has had occasion to construe the foregoing statute is Coleman v. Va. Stave Co., 112 Va. 61, 70 S. E. 545. There the court was dealing with the sale of timber on the land of infants, and it was held that a court of equity had no authority under its general jurisdiction as guardian of infants to sell their real estate whenever it was to the advantage of the infants to do so, whether for reinvestment or for their maintenance and education. That “When a new jurisdiction is created by statute, and the mode of acquiring and exercising that jurisdiction by the court upon which it is conferred is prescribed by statute, a substantial compliance therewith, at least, is essential, otherwise the proceeding will be a nullity. ’ ’ It was further held, that “A failure to aver what property the infant owned besides that sought to be sold, and to produce any proof of the propriety of the sale, is not a substantial compliance with' the provisions of that chapter, and a sale based thereon is a nullity. Ex parte affidavits are. not admissible as evidence of the propriety of the sale in such a case.”

That case received careful consideration and we have no disposition to relax the rules of procedure there insisted on in suits for the sale of lands of persons under disability. The departure from the requirements of the statute were far less flagrant in that case than in this, and the decision there is conclusive against the validity of the decree of the Circuit Court of Prince William county confirming the sale of Mrs. Buckley’s life estate' in the land in controversy.

But we are told that the suit could he maintained under section 2436-b. If that contention be correct, as to which we express no opinion, the section in terms provides that the procedure shall conform to sections 2433, 2434 and 2435, and the requirements of those sections were wholly ignored.

The case of Jackson v. Counts, 106 Va. 7, 54 S. E. 870, and other authorities are cited for the proposition that an insane person may sue by next friend. That is unquestionably true in cases arising under the general jurisdiction of courts of equity. For example, the ease of Jackson v. Counts (like the present case) was a suit to set aside a deed on the ground of fraud. But the general rule has no application where the statute which gives the jurisdiction prescribes the procedure. In such case the statutory procedure must be followed and substantially complied with. Coleman v. Va. Stave Co., supra; Link v. Saunders, 114 Va. 285, 76 S. E. 327.

The remaining assignment of error denies the correctness of the holding of the circuit court in the decree appealed from, “that the question of the validity and invalidity of the said proceedings and the decrees and the deed executed in pursuance thereof is not res adjudicata, under the two judgments of the Circuit Court of Prince. William county in the two ejectment suits recently therein pending under the style of Mary E. Buckley, by etc. v. W. M. Ellison, and the Same v. Pattie, and doth so adjudge, order and decree.”

It will be recalled from the statement of facts that Ellison and Pattie each bought from Wheeler a parcel of the-Buckley land and paid the purchase money and received his deed and was put in possession. Mrs. Buckley, by her next friend, instituted actions of ejectment against these parties to recover her life estate, the defendants plead not guilty, and at the trial neither party desiring a jury and submitting all disputed questions of law and fact to the court, and the court having heard the evidence and ■agreed statement of facts found for the defendant in each case, and final judgments were entered accordingly. To neither of these judgments was a writ of error sought or obtained, and they stand unreversed, and unassailed save collaterally in the present case.

In these actions the judgments were rendered by a court 'of competent jurisdiction, having cognizance both of the parties' and the subject matter. When these requisites concur, the judgment of such a tribunal fairly rendered upon the merits, however erroneous it may be, is conclusive on the parties and their privies until reversed or set aside in a direct proceeding for that purpose, and is not amenable to collateral attack. Chrisman v. Harman, 29 Gratt. (70 Va.) 494. 26 Am. Rep. 387; Diamond &c. Co. v. Rariq, 93 Va. 595, 25 S. E. 894; Miller v. Wills, 95 Va. 337, 28 S. E. 337; Tate v. Bank, 96 Va. 765, 32 S. E. 476; Dillard v. Dillard, 97 Va. 434, 34 S. E. 60; Richmond v. Sitterding, 101 Va. 354, 43 S. E. 562, 65 L. R. A. 445, 99 Am. St. Rep. 879; Martin v. Columbian Paper Co., 101 Va. 699, 44 S. E. 918.

For these reasons the decree of the circuit court must be reversed so as to conform to the views of this court with respect to the conclusive effect to be given to the judgments in the action of ejectment, and in all other respects it will be affirmed. And the case will be remanded to the circuit court for further proceedings to be had therein not in conflict with the views expressed in this opinion.

Reversed in part.