Robisson v. Miller

Opinion by

Mb.. Justice McCollum,

The land in dispute is part of a tract or plantation of which John C. Robisson, Sr., who died in 1869, intestate, was at the time of his death seized in fee. On the 4th of February, 1870, on petition of his heirs, proceedings in partition were instituted which, on the 23d of April following, resulted in the confirmation of an inquisition dividing the tract into four purparts. In conformity with an agreement between the heirs, purpart No. 4, being the land for which this action was brought, was awarded to John C. Robisson, Jr., at the valuation of $1,488.49. It was intended by the parties that each taker of a purpart should have immediate possession and enjoyment of the same and be charged with interest on its valuation from August 1,1870. As the estate was then unsettled and the personal property was insufficient to pay its debts, it was not definitely known what sum each heir would be entitled to receive from the aggregate valuation of the several purparts. It was subsequently ascertained that eleven hundred dollars must be deducted from this valuation for debts and expenses, leaving for distribution to heirs four thousand and ninety-six dollars and seventy-eight cents. This balance included interest for three years and three months on the valuation of the purparts. It was agreed upon, and the share of each heir in it was ascertained in November, 1873. Four shares were extinguished and one was reduced to $271.01 by acceptance of purparts, and on the 19th of December, 1873, the heirs who accepted lands at valuations greater than their shares entered into a recognizance for the payment to the other heirs on the 1st of November, 1874, of the sums to which they were respectively entitled. The amount so secured was $1,441.54, and it represented the balance due from the cognizors on the lands taken by them. Of this balance the sum of $1,133.74 was due from John C. Robisson, Jr., on account of his acceptance of purpart No. 4. In accordance with his agreement with the other heirs, he took exclusive possession of this purpart three years and five months before entering into the recognizance aforesaid, and during that time held and used it as his own, and accounted to them for interest on their shares of the valuation or price he was to pay for it. By this agreement and his possession thereunder he acquired an equitable interest in the purpart, a right to have the full legal title to it on paying or securing to the other heirs the valuation money less the share awarded to him, and when he entered into a recognizance for the payment of their shares such title vested in him.

On the 5th of March, 1872, James Witherspoon obtained a judgment against Robisson which from that date became a lien on the latter’s interest in purpart No. 4. A fi. fa. was issued on the judgment on the 11th of April, 1872, and by virtue of it such purpart was levied upon, an inquisition was taken and the land was extended. The creditor having elected to allow the debtor to remain in possession and pay the rental, and the latter being in default, a writ of vend. ex. was issued on which the land was sold by the sheriff on the 11th of August, 1874, for five hundred dollars to J. McDowell Sharpe for the benefit of the cognizees, to whom the net proceeds of the sale, against the objection of the judgment creditor, were awarded. The title acquired by Sharpe at this sale was on the 31st of January, 1890, conveyed to James B. Robisson, who is the plaintiff and appellee in this action.

On the 21st of May, 1875, purpart No. 4 was sold by the sheriff to F. M. Kimball for $426, by virtue of process on a judgment obtained on the recognizance, and on the 10th of September, 1877, Kimball, in consideration of one dollar, conveyed the same to Geo. W. Miller, who is the defendant and appellant in this contention. It should be stated here that Miller was the guardian of the minor children of Fanny Hornish, deceased, who was a daughter of John C. Robisson, Sr., and that as such they were entitled to one seventh of his estate. It should also be stated in this connection that Miller, as guardian, was a party to the agreement between the heirs in relation to the partition and allotment of the lands..

We think it is clear on the facts above recited that, if Sharpe received from the sheriff a deed of purpart No. 4, he acquired the title to it which John C. Robisson, Jr., had at the time of the first sale. The Witherspoon judgment, being a lien on Robisson’s equitable interest in it, attached to the legal title which vested in him when he entered into a recognizance to secure to the heirs the payment of their shares. It is true that the levy was before the recognizance was given, but it was on the whole purpart to which Robisson had a complete title, bound by the lien of the judgment when the sale was made. The lien of the levy was not distinct from or independent of, but it conformed to and followed, the lien of the judgment. It was not necessary therefore to abandon the levjr and make a new one, in order to divest a title to which the lien of the judgment, by operation of law, attached before the sale.

If there had been no agreement between the heirs in relation to the partition and allotment of the lands when the Wither-spoon judgment was entered, the lien of such judgment would have attached to and bound the whole of the purpart subsequently set out in severalty to the defendants therein: Jackson v. Pierce, 10 Johns. 414; Bavington v. Clarke, 2 P. &. W. 115. In the case first cited it was held that “ where a mortgage is given of an undivided part or share in a large tract of land, and on partition the right or share of the mortgagor is allotted in severalty, the mortgage will be considered as attached to the part so assigned as the share of the mortgagor, and will cover his whole interest therein.” In Bavington v. Clarke, supra, it was said by this court that “ a judgment against a tenant in common does not prevent partition. The tenant against whom the judgment is, or any other of the tenants in common, may sue out a writ of partition and proceed to have the share of each set out in severalty. The judgment in such case binds the part set out for the one against whom it is entered, and it binds no more.” It will be seen, therefore, that whether John C. Robisson, Jr., had at the time of the entry of the Witherspoon judgment an undivided one seventh of the purpart, or an equitable interest in the whole of it derived from the agreement of the heirs and his possession in pursuance of it, the result is the same.

We think the learned judge of the court below was clearly right in his conclusion that the sheriff duly acknowledged and delivered to Sharpe a deed of purpart No 4 in consummation of the first sale. The evidence on which he based this conclusion was competent and uncontradicted, and it, with the presumptions arising therefrom, fully justified the language complained of in the third specification. We think also that as it is apparent from the undisputed testimony in the case that Sharpe acquired the title to the purpart in trust for the parties interested in the fund secured by the recognizance, and as the title so held by him is vested in the plaintiff in this action, there is no error in the instruction complained of in the sixth specification.

It is worthy of note that the validity of the sale to Sharpe is not questioned by any heir of John C. Robisson, Sr., anfi that the cognizees are united in sustaining it, — that by the sale the children of Fanny Hornish, deceased, became equitable owners of the land in dispute, and that they paid for it in the award of one third of the net proceeds of the sale to their portion of the sum secured by the recognizance. It is noticeable, too, that although the second sale was upoma judgment on this recognizance, it appears to have been made in the interest and for the benefit of the appellant, and that he relies on it to defeat their title. But we need not make further reference to his attitude towards them, because, in the view we have taken of the case, it is unnecessary to consider the claim that he is estopped from contesting the validity of the first sale, or to discuss the evidence on which such claim is founded.

The specifications of error are overruled and the judgment is affirmed.