Alderson's Heirs v. H. H. Henderson & Co. , 5 W. Va. 182 ( 1872 )

Bericshire, P.

A bill in equity was filed in the circuit-court of Greenbrier county by Henry H. Henderson & Co., against the widow and heirs of Joseph G. Alderson, deceased, and others, to enforce a judgment lien against the real estate of said Alderson. The judgment was obtained in favor of said Henderson & Co. against said Alderson, in March, 1861, in the county court of said county.

It appears that the real estate of said Alderson, at the time of his death, consisted of two houses and lots in the town of Lewisburg, and a small tract of land in the same county. It-further appears that the tract of land was sold by said Alder-son, in his life-time, and conveyed by him and his wife to the-purchaser, Thomas A. Henning, on the 12th day of March, 1863. Also, that Henning, on the 20th of November, 1863,' ¡sold and conveyed the same tract to Cyrus A. Rupert. The deed to Henning appears to bave been acknowledged before Joel McPherson, who certified that he was a notary public for said county, and State of Virginia, on the 12th of March, 1863; and upon such acknowledgment the deed was recorded by him, as clerk of the county court of that county, on the 24th of the same month. But no copy of the deed from Hen-ning to Rupert is found in the record, though it was made an •exhibit of the amended bill filed by the complainant. It appears, however, that the latter took possession of the land after his purchase, and continued in possession up to the time of the hearing of the cause. The said Alderson made his last will and testament, which was duly recorded in the recorder’s office of Greenbrier county, in 1866, whereby he devised and bequeathed all his estate, both real and personal, to his wife, Maria J. Alderson, subject to the-payment of his debts. But it appears she formally renounced the will, within twelve months from the date of its probate, and elected to take such interest in the estate as she was entitled to under the law. It further appears that said Alderson was largely indebted at the time of his decease, and that his entire estate was inadequate to the payment of his debts. Sundry decrees were rendered in the cause, under which the widow’s dower has been assigned to her, and the two houses and lots sold. But the question as to the sale of the tract of land was reserved in the -decrees rendered, and remained undetermined when this appeal was taken.

The only parties now complaining as appellants, are a part of the heirs of Joseph G. Alderson. Very numerous errors in the decrees rendered are assigned, which I will proceed to consider.

The first of the errors assigned is, that the court erred in reinstating the cause after it had been dismissed at the cost of the complainant, at a previous term. The bill and amended bill were dismissed by the court, at its own instance, at the April term, 1868, and reinstated at the next term at the instance and upon the petition of the complainant. At the time of the dismissal, the process had. been duly served on the adult defendants, some of whom had filed their answers; .and the answers of the infant defendants, by their guardian ad litem, had also been filed. But no demurrer to the bill or amended bill had been filed, or objection to them made for the reason that they failed to set forth or state who composed the firm of Henry H. Henderson & Co., that being the reason assigned by the court for dismissing the same. It appears from the petition of the complainant that there never was in fact any company or any one interested in the judgment but himself, though it was confessed in favor of Henry H. Henderson & Co., and the bill simply followed the judgment in this respect. I think there was no sufficient ground for dismissing the bill and amended bill, and that the court did not err in reinstating the cause; which it was clearly authorized to do under the first section of chapter 132 of the act of March, 1868, p. 115.

- It is next claimed that the court erred in assigning the widow’s dower in the real estate in one lot instead of assigning it separately in e§,ch; and also because she was allowed too large an interest in such estate. There is nothing in the record to show that the dower interest assigned to her is excessive ; and it is not perceived that there was any error in assigning her full dower in the whole estate in one of the lots. And, moreover, it could not be an error to the prejudice of the appellants, as we have already seen that the entire estate of the said Joseph G-. Alderson will not be sufficient to discharge the indebtedness of his estate.

It is also assigned as an error, that the court erred in not holding the widow of Joseph G-. Alderson as an executor de son tort. There is not the slightest foundation for this objection, as it is neither charged nor proved that she can in any manner intermeddle with the estate.

It is further claimed that the court erred in not subjecting to sale the tract of land sold and conveyed by Alderson to Henning. The answer to this objection is that the court did not refuse to do so, but reserved that question in the decree complained of, and therefore the cause, as to that question, is still pending in that court.

It is also objected that the court erred in giving the complainant’s judgment priority over the debt due from Joseph G-. and Marcus Alderson, as administrators of John Alderson, deceased. This objection is not valid. The master reports this judgment a lien on the real estate of Joseph Gr. Alder-son, having priority over the debt just referred to, and the statute, Code 1860, eh., 130, § 25, p. 598, does not give such debts priority over a lien created on the estate of a decedent in his life-time.

It is further claimed that the court again erred in not passing on the exceptions to the master commissioner Walker’s report, and also in confirming the same. The decree confirming the report recites that there were no exceptions to it, and that it was accordingly confirmed. This decree must be presumed, in this court, to be correct, as to the facts recited in it, unless it otherwise appears by the record. There is nothing appearing therein which necessarily conflicts with the decree in this respect. It is true it does appear that exceptions to said report, taken by Eliza Patton and some of the other defendants who have not appealed, are found in the record. But they are without date, and there is nothing in the record from which it can be reasonably inferred that they were endorsed or filed before the decree was rendered, and from aught that appears they may l^ave been taken and filed after-wards. And this being the case, it is unnecessary to consider any of the questions founded on such exceptions.

The remaining error insisted on is that the court erred in confirming the sales of the lots purchased respectively by the widow Maria J. Alderson and R. F. Dennis. There is nothing in the proofs showing that these sales, or either of them, were irregular or improper, and consequently no error was committed in confirming them. Upon the whole, I can discover no error in the decrees complained of, sufficient to require their reversal, and they must therefore be affirmed, with costs and damages.

The other judges concurred.

DECREE AFFIRMED.