Opinion
09-18-1871
DIXON & als. v. MCCUE'S adm'x & als.
Fultz, for the appellants. A. H. H. Stuart, for the appellees.
In November 1860, M was appointed a commissioner to sell infants land, on a credit of six, twelve, eighteen and twenty-four months. M reports, that after three trials he had failed to sell, and suggests that it be rented out for the present; and in June 1861, there is an order that M be authorized to rent out the land for such time, and on such terms as he might think judicious; and he rents it out for that and the next year. In March 1863, M reports that he in that month sold the land on the terms of the decree, to S and D; and the report is confirmed; and he is directed to collect the purchase money as it falls due, and pay it to the receiver of the court, if the parties entitled decline to receive it. M, without giving bond as required by the statute, but which was not directed by the decree, collects the first three payments as they fall due, and pays the money into a bank which has been appointed receiver of the court. The last payment was not made by S and D, one of them being in the army, and the other a prisoner. After the war they propose to pay the last payment; and the parties entitled object to the sale, and also to the payments made; which were in Confederate currency. HELD:
1. The decree of November 1860, for the sale of the land, continued in force, notwithstanding the order of June 1861, for renting it, and the commissioner had authority to sell in March 1863.
2. The sale having been made more than six months after the decree for a sale, and having been confirmed, the sale cannot be set aside, as to the purchasers.
3. When the sale was confirmed in March 1863, the court must have understood and intended that the sale was for Confederate currency, and the purchase money was to be paid in such currency.
4. The payments made to M, and his payments to the receiver of the court, were valid payments; though M had not given the bond required by the statute; and the purchasers and M are not liable for this part of the purchase money.
5. S and D were, under the circumstances, excused for the non-payment of their fourth bonds as they fell due; and upon their paying these bonds are entitled to have the land conveyed to them.
This is the sequel of the case of Dixon v. McCue & als., reported in 14 Grattan 540. When the cause went back to the Circuit court, Wm. A. Burket filed his petition, stating that he had purchased the interests of John J. Dixon and Christopher C. Dixon, two of the children of John Dixon, deceased, in the land, and asking that his portion of it might be set off to him: and he exhibited their deeds; Mrs. Dixon elected to take her dower; and thereupon, on the 5th of November 1858, commissioners were appointed to lay off Mrs. Dixon's dower; and also if it was practicable, without injury to the parties in interest, to lay off the remainder into nine shares; and if this could not be done, to lay off for Burket his two-ninths in a body, and the other owners their seven-ninths together.
The commissioners reported that they had allotted to the widow, for her dower, fifty-one acres and a fraction, including the buildings: That the remainder of the land could not be divided into nine parts, without injury to all of them; and they divided it into two parts; giving to Burket his two-ninths in a body.
On the 28th of November 1860, the cause came on again to be heard, when the court confirmed the report; and Thomas W. McCue, the executor, was appointed a commissioner to sell, at public auction, the land allotted to the seven children, upon a credit of six, twelve, eighteen and twenty-four months; taking from the purchaser bonds, with personal security, and retaining the title. And the commissioner was directed, in making the sale, to offer separately that part of the land covered by the widow's dower.
McCue having reported to the court, that after three efforts he had been unable to sell the land, and suggesting that, for the present, it be rented out, on the 3d of June 1861, the court made an order authorizing him to rent out the land, on such terms and for such time and crops as he might think judicious. And in pursuance of this order McCue rented it out for the balance of the year 1861 and for 1862.
In March 1863, McCue reported to the court that he had, on the 16th of that month, sold at public auction, the land covered by Mrs. Dixon's dower, on the terms of the decree of the 28th November 1860, for $43 per acre, making in the whole $1,792.04; and the tract allotted to the children, at $40 per acre; making in the aggregate $5,304.50; and he considered the land well sold. He returned with his report the bonds of Charles B. Steigel, the purchaser of the first tract, each for $448.01; and those of J. P. Dixon for the second tract, each for $1,326.121/2.
On the 9th of June 1863, the cause came on again to be heard, when the court confirmed the report, and directed a commissioner to take an account for the final settlement of the executorial transactions of McCue, and the distribution of any balance of the estate in his hands, among those entitled, and also for the distribution of the real estate among those entitled. And McCue was authorized to receive the purchase money of the land as it fell due, and pay the same, as also the amount in his hands as executor, to the receiver of the court; unless the parties entitled to the personalty or realty will consent to receive and account for the same.
On the 6th of November 1866, Thomas W. McCue, having died, the suit was revived in the name of Elizabeth McCue, his administratrix; and the court made a decree, directing her to report the proceedings of her intestate, under the decree of the 9th of June 1863. And it being suggested that the purchasers of the land sold by McCue, who claim to have discharged the first three payments, and are now willing to pay the last payments, without prejudice to the rights and claims of the parties who intend to question the validity of the payments of the three first bonds of said purchasers, it was decreed that John N. Hendren, who was appointed a receiver for the purpose, do proceed to collect the last bonds of said purchasers, and that he distribute the same among the parties legally entitled thereto. And on the 7th of December following, rules were made upon Charles B. Steigel and J. P. Dixon to show how much money they had paid on account of their respective purchases of the land aforesaid.
Mrs. McCue filed her answer to the rule. She states that McCue, under the authority of the decree of June term 1863, proceeded to collect from Steigel and Dixon the three first instalments of the purchase money; and being unable to pay them over to the parties entitled thereto, he paid them to the receiver, as directed by the said decree. And she filed the receipts of the receiver. She says further, that Commissioner Hendren settled the executorial account of her intestate, showing a balance due from him to his testator's widow and children of $151.30; that her intestate sought to make payments to the parties entitled, of the balances due to them respectively; but they refused to receive the same; and he thereupon paid the amount to the receiver of the court. She says the bonds of the purchasers for the fourth instalment fell due in March 1865, and were not paid, as the obligors were in the Confederate army, and one or both of them were prisoners of war. These bonds have been lost or mislaid. The receipts filed by Mrs. McCue with her answer, show that the amount due on the executorial account was paid by McCue to the receiver July 8th, 1863; and the payments made for the land were received by him and paid to the receiver within a few days after they respectively fell due.
Steigel and J. P. Dixon filed their answer to the rule. They say they gave their bonds to McCue with good security, and as these bonds for the first three payments fell due they were paid; and they exhibit the bonds. And they say that when the bonds for the fourth payments fell due, Steigel was in the army at Petersburg, and Dixon was a prisoner of war at camp Chase in Ohio. And they ask that titles may be made to them for their purchases. Dixon further insisted that as one of the heirs of his father, he was entitled to one-fifth of the proceeds of the land sold, two of the children having died, and he was entitled to have that one-fifth set off against his bond still unpaid.
Mrs. Dixon and two of the children filed a special replication to the foregoing answers. They insist that the sale of the land was most improper and injurious; that it had been postponed from time to time, in consequence of the worthless condition of the currency, and when McCue persisted in making the sale, that it was still more rapidly declining. That the price obtained was not more than its value in good money at the time. If the sale was made for Confederate currency, the price was grossly inadequate, and should be set aside; and if not so made, the purchase money should not have been received in that currency; and the purchasers should be required to discharge the purchase money in good money. That McCue as commissioner, not having given the bond required by the statute, Code of Va. ch. 178, §1, the payments alleged to have been made to him by Steigel and J. P. Dixon, were made without any authority on the part of McCue to receive the same; and do not discharge them as purchasers of the land.
On the 12th of January 1867, the cause came on to be heard upon the rule, when the court held, 1st, that the court having directed the sale of the land in June 1860, and the sale having been made in March 1863, and confirmed by the court in June 1863, the title of the purchasers should not be affected, even if the last named decree were reversed in an appellate tribunal; and therefore the Circuit court had no authority to set it aside; 2d, that although it did not appear that McCue, as commissioner, gave the bond as required by law, yet the decree of June 1863 not having required him to give bond, or named the penalty for such bond; and the money having in fact been promptly paid to the receiver, there had been a literal compliance with the requirements of the decree by the commissioner; and the failure of the court to require the bond had caused no damage to any party; and therefore that the receipts of the receiver must stand as acquittances of the commissioner, as well as of the purchasers. And it was, therefore, decreed that the rules be discharged, but without costs. And Hendren, the commissioner, appointed by the decree of November 1866, was directed to convey to Steigel the land purchased by him, upon his payment of his last bond with interest. And disallowing J. P. Dixon's claim to set off his portion of the money paid to McCue, against his last bond, the same commissioner was directed to convey to him the land he purchased upon his payment of his last bond, with interest.
In March 1867, Mrs. Dixon and two of the children, by leave of the court, filed their cross-bill in the cause. They allege that Charles S. Dixon, one of the plaintiffs, arrived at the age of twenty-one years on the 5th of January 1864, and that another, Sarah M. Dixon, came of age on the 23d of May 1865; and that they were non-residents of the State, and had no knowledge of what was going on, and had no opportunity to except to the action of McCue, and to object to the confirmation of the sale of the land made by him. And they rely upon the same grounds of objection to what had been done, stated in their special replication.
There were demurrers and answers to this bill, by McCue's adm'x and Steigel and John P. Dixon. They denied that the plaintiffs had no knowledge of what was going on in the cause; and insisted that they were parties in the cause, and represented by able counsel; and that everything had been done regularly and in good faith.
On the 21st of November 1867, the cause came on to be heard, when the court dismissed the cross-bill, and affirmed the decree of the 13th of January 1867. And thereupon Rachel Dixon, the widow, Charles Dixon and Sarah M. Dixon obtained an appeal to the District court of appeals at Charlottesville; from whence the cause was transferred to this court.
Fultz, for the appellants.
A. H. H. Stuart, for the appellees.
OPINION
STAPLES, J.
The court is of opinion, that although no bond was given by Thomas W. McCue, the commissioner, before he proceeded to collect the purchase money for the land, yet, inasmuch as he was authorized by the decree of the 9th of June 1863, to collect said money as it fell due, and to pay it to the receiver of the court, in the event of the refusal of the parties to receive it, and the money having been paid by the purchasers, Charles B. Steigel and J. P. Dixon, and deposited by said commissioner in bank acting as receiver, to the credit of the cause, in consequence of such refusal of the parties interested, and said fund having been lost without the default of said commissioner; the purchasers cannot be in any manner prejudiced by his failure to execute the bond required by law.
It does not appear that said Steigel and Dixon were guilty of any fraud, imposition, or other unfair conduct. They purchased at a sale publicly and fairly made; they complied with all its terms, by the prompt payment of the three first instalments of the purchase money: when the fourth and last instalment became due, one of them was in the army, and the other a prisoner in the Federal lines. The appellants have sustained no loss or damage by the failure of said purchasers to comply with this part of their contract. On the contrary, such failure manifestly enured to their benefit; as under the decree of the Circuit court, they are entitled to receive the nominal amount of the last instalment in United States currency.
It is unnecessary to consider the other objections urged to the various decrees and proceedings in the cause. Even if well founded, they cannot operate to the prejudice of the purchasers, inasmuch as the sale was made more than six months after the date of the decree, and was duly confirmed; and the said purchasers are, therefore, fully protected by the provisions of the 8th section of chapter 178, Code of 1860, which declare, that if a sale of property be made under a decree or order of a court, after six months from the date thereof, and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby; but there may be a restitution of the proceeds of sale to those entitled.
The court is further of opinion, that no liability attaches to the estate of the said Thomas W. McCue, by reason of anything done by him in the execution of the trusts confided to him. Under the decree of 1860 he was authorized to sell the land in controversy; and under that of 1861, to rent it out on such terms and for such time as he might deem most advantageous to the estate. Upon the termination of said renting it was not necessary for him to apply again to the court for authority to sell. The decree of 1860 was still in effect; and the authority to execute it unrevoked. Such was the construction given to that decree by the Circuit court when it confirmed the sale. Upon well settled principles, when commissioners are appointed to make sales of property, they are subject to the supervision and control of the court, and their acts, when sanctioned, become the acts of the court. It is unreasonable to suppose the presiding judge was not apprized that the sale was made for Confederate currency; and in authorizing the commissioner to collect the purchase money, he must have intended the collection to be made in the currency then exclusively in circulation. If the parties deemed the sale injudicious, it was easy to apply to the court to set aside or modify the decree of 1860, or to arrest the action of the commissioner.
It is true that some of them were infants; but it appears from the statement of the judge who rendered the decree now appealed from, that they were represented by efficient counsel, who prepared the decree confirming the sale, and authorizing the collection of the purchase money. No objection was ever made to any of the proceedings; and now, after the loss of the fund by the disastrous termination of the war, it is sought to make the commissioner responsible for an act approved by the court, and never disapproved, so far as this record discloses, by the parties or their counsel. A rule of this sort, adopted by this court, would produce incalculable mischief throughout the State, and tend to the utter ruin of a vast number of innocent officers acting under the sanction and by the authority of the courts, during the protracted struggle in which the country was engaged. Every consideration of sound policy and justice requires that such officers should not be held responsible for acts bona fide performed, under the direct approval and sanction of the court appointing them.
The court is therefore of opinion that there is no error in the decree of the 12th January 1867, nor in the decree of the 22d November 1867, dismissing the cross-bill of the appellants, and that the same should be affirmed.
DECREE AFFIRMED.