VANMETER'S ex'ors v. VANMETERS.
44 Va. 148, 3 Gratt. 148 (1846)

Supreme Court of Appeals of Virginia.

VANMETER'S ex'ors

v.

VANMETERS.

July Term, 1846.

*1 (Absent Brooke, J.)
1. In a mortgage deed, the only description of the lands conveyed, is, all the lands of the grantor in the county of H. HELD. The deed is valid to pass all the lands of the grantor in the county of H.
2. A mortgage deed purports to secure all debts due from the grantor to the grantee, and to indemnify the grantee for all his suretyships for the grantor, without specifying either the debts or the suretyships. HELD. The deed is valid to secure all debts and suretyships existing at the time of the execution of the deed.
3. V. executes a deed by which he conveys to A. and I. his lands, on the consideration that they shall pay his debts, and pay him $500 a year for his life. A. and I. do not execute the deed, but they accept it, and take possession and hold the lands. HELD.
1. They are personally liable for the debts of V.
2. The land so conveyed to them, whilst held by A. and I. will be subjected by a Court of Equity to pay the debts of V.
3. Quaere. If such of these lands as lie out of the State of Virginia, may be decreed to be sold by the Courts of this Commonwealth.
4. A decree which disposes of the whole subject, gives all the relief that is contemplated, and leaves nothing to be done, is a final decree.
5. A final decree having been made in a cause, the plaintiffs afterwards bring another suit in another Court, against the same defendants, to have satisfaction of the decree. It is not competent for the defendants to file a cross bill in the second suit depending in one Court, to review the decree of another Court.
6. If a decree directs the sale of real estate under circumstances which injure the sale, the parties injured should except to the report of the commissioner, and apply to the Court to set aside the sale. A bill of review after a final decree is not the proper remedy.
By deed bearing date the 23d of April 1810, Joseph Vanmeter conveyed to David Vanmeter five several tracts of land lying in the county of Hardy, in trust to secure to Jacob Vanmeter several large sums of money, and also to indemnify him as his surety; and on the 1st of March 1824, Joseph Vanmeter executed another deed in the nature of a mortgage, to Jacob Vanmeter, by which he subjected all his lands in the county of Hardy, without any other description of them, to secure to Jacob Vanmeter the debts which the said Joseph then owed him, without specifying them; and to indemnify the said Jacob as his surety generally.
On the 25th of February 1825, Joseph Vanmeter executed a deed to Abraham Inskeep, by which he conveyed a tract of land called Claypoles in the county of Hampshire, in the first place, to indemnify Jacob Vanmeter and Isaac Vanmeter the elder, as his endorsers at the Bank of the Valley at Romney, and then to secure the debts due to Jacob Vanmeter.
On the 15th of March 1825, Joseph and Jacob Vanmeter had a settlement; and on that day Joseph Vanmeter executed to Jacob Vanmeter his bond for the sum of 14,992 dollars 81 cents, the balance then ascertained to be due to Jacob for moneys lent to or paid as the surety of the said Joseph. And thereafter, Joseph Vanmeter becoming farther indebted to Jacob Vanmeter, executed to him one bond, dated the 26th of September 1826, for 812 dollars, another bond dated the 14th of August 1827, for 588 dollars 81 cents, and still another bond dated the 1st of December 1827, for 1387 dollars 31 cents. In this last bond Abraham and Isaac Vanmeter, the sons of Joseph, joined as his sureties.
*2 On the 17th of October 1827, and previous to the execution of the bond last above mentioned, Joseph Vanmeter executed a deed to Abraham and Isaac Vanmeter his sons, by which, in consideration of one dollar, and that they had bound themselves to pay all debts due and owing by said Joseph, and had bound themselves to pay him 500 dollars per annum during his life, he conveyed to them in fee simple, all the lands he was possessed of in the State of Virginia, or any of the United States, except one tract in the county of Monongalia. This deed was not executed by Abraham and Isaac Vanmeter, but they took possession of and held the lands thereby conveyed to them.
In 1829, Jacob Vanmeter filed his bill in the late Chancery Court at Winchester against Joseph, Abraham and Isaac Vanmeter, in which, after setting out the indebtedness of Joseph Vanmeter to him, and the conveyances of the 23d of April 1810, the 1st of March 1824, and the 17th of October 1827, he prayed that he might have a decree for the payment of the said several sums of money, and in default of payment thereof at a short day, that the lands mentioned in the two first deeds might be sold for the payment thereof; and for general relief.
The defendants Abraham and Isaac Vanmeter answered, admitting the execution of the deed of the 17th of October 1827, on the consideration therein stated. And the Court having directed one of its commissioners to settle the accounts between the parties, he, on the 16th of April 1830, made a report which ascertained the amount due from Joseph Vanmeter to Jacob Vanmeter to be 24,831 dollars 12 cents, with interest on 19,683 dollars 73 cents from that date until paid.
Jacob Vanmeter having died, the suit was revived in the name of Abraham and Garret Vanmeter his executors; and the cause came on to be heard on the 19th of April 1830, when the Court confirmed the report, and decreed that the defendants Joseph, Abraham and Isaac Vanmeter should pay to the plaintiffs the sum of 24,831 dollars 12 cents, with interest on 19,683 dollars 73 cents, a part thereof, from the 15th day of April 1830, till paid, and their costs. And if they should fail to pay the same on or before 1st day of the next October, the marshal was directed to proceed to sell the lands conveyed by the deeds of the 23d of April 1810, and the 1st of March 1824.
The money not having been paid by the time appointed, the marshal proceeded to sell the land which consisted of twelve tracts in the county of Hardy; and by his report it appeared that they sold for the sum of 12,465 dollars.
The cause came on again to be heard on the 6th of June 1831, when the Court by its decree confirmed the marshal's report, and directed the marshal to collect the amount of the bonds for the purchase money as it fell due, and pay it over to the plaintiffs; or if the executors should require it, to deliver the bonds to them for collection.
*3 In 1832 the executors of Jacob Vanmeter filed their bill in the Superior Court of Hampshire county, against Joseph Vanmeter, and his sons Abraham and Isaac Vanmeter, and Abraham Inskeep, in which they state the proceedings in the former suit, and that a large balance is still due them on the decree in that case. They charge that under the deed of the 17th of October 1827, Abraham and Isaac Vanmeter had taken possession of the lands in Hardy, and held the same until they were sold by the marshal; that they had also taken possession of the tract of land called Claypoles in the county of Hampshire, and held the same until 1831, when it was sold by Inskeep under the trust deed to him; and that they had rendered no account for the rents and profits of the land, but had applied them to their own use. That by this deed Abraham and Isaac Vanmeter acquired title to a large quantity of valuable land in the States of Ohio and Kentucky, which were liable for the debt due from Joseph Vanmeter to the plaintiffs. That said Abraham and Isaac had also received from their father in 1827, a considerable quantity of personal property for which they paid no valuable consideration, and which they had appropriated to their own use. That Inskeep had sold the land called Claypoles to Michael Miller for 7500 dollars, payable in instalments of 2500 dollars, at one, two and three years, which was much more than sufficient to discharge the debts which Jacob Vanmeter and Isaac Vanmeter the elder had been compelled to pay as endorsers of Joseph Vanmeter at the Valley Bank at Romney. They therefore prayed that Abraham and Isaac Vanmeter be compelled to state what lands they received from their father by the deed of 17th of October 1827, when they obtained possession thereof, and how long they held them. That the said Joseph, Abraham and Isaac Vanmeter might be decreed to pay to the plaintiffs the balance due them by virtue of the decree of the 19th of April 1830. That the lands in Ohio and Kentucky, and all other lands conveyed by the said Joseph Vanmeter to his sons Abraham and Isaac by the deed of the 17th of October 1827, and which were not sold under the last aforesaid decree and the deed to Inskeep, might be decreed to be sold, and the proceeds applied to the payment of the plaintiffs: and for general relief.
The defendants Abraham and Isaac Vanmeter answered the bill, and gave a statement of the lands received by them from their father, under the deed of 17th of October 1827. Some of these lands lay in Ohio, one tract in Illinois, one in Kentucky, two in the county of Preston, and one in the county of Hampshire. They admitted they had received some personal property from their father; but the defendant Abraham alleged, that at the time he received it his father was largely indebted to him; that he had subsequently paid off an execution for upwards of 700 dollars that had been levied on this property; and that it, or so much of it as was necessary for the purpose, had been sold to reimburse him.
*4 These defendants having filed their answer, they, in October 1832, by leave of the Court, filed a cross bill and bill of review against the plaintiffs and others. In their bill, after stating the proceedings in the cause in the Chancery Court at Winchester, they state as errors apparent on the face of that decree, 1st. That there was a personal decree against themselves for the whole sum reported by the commissioner to be due from Joseph Vanmeter to Jacob Vanmeter, although, as they insisted, there was nothing in any part of the proceedings on which the decree in that cause was founded, to shew any personal liability on their part except for the amount of the bond of 1387 dollars 31 cents. 2d. That the deed of the 23d of April 1810, conveyed by general and vague description five tracts of land in the county of Hardy, as security for the debts specified therein. And by the deed of the 1st of March 1824, there is conveyed by a sweeping clause, to Jacob Vanmeter all Joseph Vanmeter's real and landed estate in the county of Hardy, without any other description whatever; and the purpose of this deed is recited to be to render all his said real property in the county of Hardy liable for all the debts which the said Joseph Vanmeter owed at that time to Jacob Vanmeter, and also to indemnify the said Jacob for all his suretyships and liabilities for the said Joseph, as security or endorser in any case. That the marshal, by his advertisement, gave no other or further description of the lands to be sold than was contained in the deeds and decree. They therefore insisted there was manifest and gross error in the decree which ordered the said lands to be sold without a previous reference, or some other equivalent proceeding, to ascertain by proper and intelligible description, of what the mortgaged subjects consisted.
They stated farther, that although it did not appear on the face of the decrees which they sought to review, they had sustained further and serious mischief from the manner in which the sale of the lands had been conducted by the marshal. They therefore pray that the decrees of the 19th of April 1830, and of the 6th day of June 1831, for the errors stated, may be reviewed, and reversed, and for general relief.
The executors of Jacob Vanmeter answered the cross bill, and insisted that Abraham and Isaac Vanmeter, having accepted the deed of the 17th of October 1827, they were personally liable to pay the balance due to them as executors of Jacob Vanmeter, under the decree of the 19th of April 1830. They denied that there was any unfairness in the mode of conducting the sale by the marshal; and they insisted that as there were no steps taken to obtain a resale of the property, and the report of the marshal was regularly approved and confirmed by the Court, without complaint, that it was then too late to make objections to that sale, for any of the grounds stated in the cross bill and bill of review, but the objections should have been urged in the Court of Chancery at Winchester, where the cause was pending, before the decree confirming the marshal's report was made.
*5 On the 12th of October 1832, and before the cross cause was ready to be heard, the Court made a decree in the first cause, directing a commissioner to ascertain and state the balance due to the executors of Jacob Vanmeter on the decree of the 19th of April 1830, after deducting the amount raised by the sale of the lands by the marshal; and also to ascertain and state the amount of the fund in the hands of Inskeep applicable to the payment of the plaintiff's claim. Also, to state the amount of the rents and profits received by Abraham and Isaac Vanmeter out of the lands conveyed to them by Joseph Vanmeter, by the deed of the 17th of October 1827. And also, to report what tracts of land were conveyed to them by said deed, beside such as had been sold under the decree of the 19th of April 1830.
In July 1833, the commissioner returned his report, by which it appeared there was due to Jacob Vanmeter's executors on the decree of the 19th of April 1830, the sum of 16,992 dollars 55 cents, with interest thereon from the 14th December 1833. That the fund in the hands of Inskeep, applicable to the payment of this debt, was 5082 dollars 86 cents, consisting of two bonds of Michael Miller, the purchaser of the Claypole land, one of which for 2578 dollars 17 cents, would bear interest from the 14th of March 1833, and the other for 2500 dollars, from the 14th March 1834. That Abraham and Isaac Vanmeter had jointly received rents and profits of the land conveyed to them by the deed of the 17th of October 1827, 1837 dollars 50 cents, including interest up to the 17th July 1833; and that Abraham Vanmeter alone had received 1305 dollars 25 cents, including interest up to the same time. The report farther states, that lands therein described lying in the States of Kentucky, Ohio and Illinois, and in the counties of Hampshire and Preston, were conveyed to said Abraham and Isaac Vanmeter by the deed aforesaid.
On the 5th of May 1834, the two causes came on to be heard together, when the Court confirmed the commissioner's report, and decreed that Inskeep should transfer to Jacob Vanmeter's executors the bonds of Miller, in part discharge of their debt. That the defendants Joseph, Abraham and Isaac Vanmeter, should pay to Jacob Vanmeter's executors the sum of 1387 dollars 31 cents, with interest thereon from the 1st of December 1827 till paid; that being the amount of their bond executed to Jacob Vanmeter on that day. And the commissioner was directed to make a farther statement shewing how much would be due to Jacob Vanmeter's executors after deducting the sums then decreed to them. This statement was made, shewing the balance due on the 15th September 1834, after deducting the sums directed by the decree, to be 10,414 dollars 68 cents, to bear interest from that day. And the causes coming on again to be heard, on the 17th of September 1834, the Court decreed that Abraham and Isaac Vanmeter should pay to the plaintiffs in part discharge of the balance due them the sum of 1837 dollars 50 cents, with interest on 1500 dollars, a part thereof, from the 17th of July 1833, till paid, and that Abraham Vanmeter should pay to the same plaintiffs the sum of 1305 dollars 25 cents, with interest from the same date on 1100 dollars, part thereof, till paid, in farther discharge of said balance: these sums being the amounts reported by the commissioner to be due from the defendants for the rents of the lands received by them under the deed of the 17th of October 1827. And it was farther decreed, that unless the defendants should, within three months from the date of that decree, pay to the plaintiffs the balance of 10,414 dollars 68 cents, after deducting the sums therein decreed against said Abraham and Isaac Vanmeter, that William Seymour, who was appointed a commissioner for the purpose, should sell at public auction, upon terms prescribed in the decree, the lands reported by the commissioner to have been conveyed by Joseph Vanmeter to his sons Abraham and Isaac Vanmeter, by the deed of the 17th of October 1827; and also the moiety of another tract in the county of Hardy, which was admitted by the parties to be the property of Joseph Vanmeter.
*6 On the same day on which the above decree was made, Jacob Miller as the administrator de bonis non with the will annexed, of Abraham Vanmeter sen'r, filed his petition in the cause, stating that he had recovered a judgment against Joseph Vanmeter who was insolvent, and claiming to participate with Jacob Vanmeter's executors and the other creditors of Joseph Vanmeter in the proceeds of the land conveyed by the said Joseph to his sons Abraham and Isaac Vanmeter, by the deed of the 17th of October 1827; and asking that the plaintiffs should be compelled to amend their bill and make him a party defendant. In May 1835, Thomas Brammal filed a similar petition.
Seymour having made his report of the sale of the land directed by the decree of the 17th of September 1834, the cause came on again to be heard on the 15th of April 1836, and the Court decreed that the proceeds of the tract of land in the county of Hardy should be paid over to the executors of Jacob Vanmeter, that being land embraced in the mortgage of the 1st of March 1824; and that the proceeds of the other lands sold, should be placed in the hands of David Gibson, as a receiver of the Court. And leave was given to Jacob Vanmeter's executors to file a supplemental bill.
The executors of Jacob Vanmeter filed their supplemental bill, in which after referring to the previous proceedings in the cause, they state that Joseph, Abraham and Isaac Vanmeter have not paid the sums of 1387 dollars 31 cents, with interest thereon, decreed against them by the decree of the 5th of May 1834; that the said Abraham and Isaac Vanmeter, are largely indebted to the plaintiffs, beside this sum decreed against them; and that they have removed from the State of Virginia. That Michael Miller of the county of Hampshire, is largely indebted to said Abraham Vanmeter. That Jacob Miller as the administrator de bonis non with the will annexed, of Abraham Vanmeter sen'r, and Thomas Brammal claim to have some interest in the suit, which the plaintiffs were then prosecuting. They therefore make Abraham and Isaac Vanmeter, Michael Miller, Jacob Miller, as the representative of Abraham Vanmeter sen'r, and Thomas Brammal parties defendants, and pray that Michael Miller may be restrained from paying away any money by him owing to Abraham Vanmeter the absent defendant, until the farther order of the Court; and that the money in his hands may be applied to the payment of the sums for which the said Abraham is liable to the plaintiffs.
It does not appear that Jacob Miller, or Brammal, were served with process, nor did they appear in the cause. Abraham and Isaac Vanmeter were proceeded against as absent defendants; and Michael Miller filed his answer, in which he stated that he was indebted to Abraham Vanmeter by two bonds of 1500 each, one payable about the 1st of March 1837, one about the same time in 1838, and another bond of 1000 dollars, payable about the 1st of March 1839. But that by his contract with Abraham Vanmeter he was to pay out of the said bonds to Elizabeth Vanmeter the widow of Abraham Vanmeter sen'r, 800 dollars, to be paid in annual payments of 100 dollars each, beginning on the 1st of March 1837; and that himself and David Parsons were liable as endorsers, for said Abraham Vanmeter at the Bank of the Valley, on a note for nearly or upwards of 1000 dollars.
*7 The cause came on again to be heard on the 10th of April 1837, when the Court made a decree directing Michael Miller to pay to the executors of Jacob Vanmeter, the sum of 1400 dollars, with interest from the date of the decree, on account of his bond due the 1st of March 1837, which sum was to be applied in part discharge of the decree of the 5th of May 1834, against Joseph, Abraham and Isaac Vanmeter, for 1387 dollars 31 cents, with interest from the 1st of December 1827, until paid. And the commissioner was directed to state an account shewing the amount for which Michael Miller and Parsons were liable for Abraham Vanmeter in the Bank of the Valley; and also an account shewing how much would remain due to Jacob Vanmeter's executors, after charging them with the amount received from Seymour's sale of the tract of land in the county of Hardy, and the 1400 dollars to be paid by Michael Miller. And the commissioner was directed to make a separate statement of the balance which would remain due on the decree for 1387 dollars 31 cents, and interest, after applying thereto the 1400 dollars directed to be paid by Miller.
The commissioner made his report, by which it appeared there was due to Vanmeter's executors the sum of 11,546 dollars 63 2/3 cents, with interest on 10,414 dollars 68 cents, a part thereof, from the 15th of April 1838. And there was due from Abraham and Isaac Vanmeter, 812 dollars 89 cents, with interest on 766 dollars 28 cents, from the 15th of April 1838, on account of the decree of the 5th of May 1834. And the cause coming on again to be heard on the 16th of April 1838, the Court made a decree directing Michael Miller to pay to Jacob Vanmeter's executors the sum of 812 dollars 89 cents, with interest on 766 dollars 28 cents, a part thereof, from the 15th of April 1838 till paid; that being the balance due upon the decree of the 5th of May 1834, for 1387 dollars 31 cents, with interest from the 1st of December 1827 till paid, against Joseph, Abraham and Isaac Vanmeter.
On the 14th of April 1840, Abraham and Isaac Vanmeter filed their petition for a rehearing of the interlocutory decree of the 17th of September 1834; and the cause coming on to be heard on the said petition, the Court held that Abraham and Isaac Vanmeter were not personally bound by the provisions of the deed of the 17th October 1827, from Joseph Vanmeter to them, to pay the debts of the said Joseph. And Michael Miller was therefore directed to pay the balance in his hands due to Abraham Vanmeter to the receiver of the Court, after deducting therefrom the amount which Parsons and himself had paid for the said Abraham to the Bank of the Valley.
On the 13th of September 1842, the cause came on to be finally heard, when the Court made a decree whereby it vacated and annulled so much of the decree of the 17th of September 1834, as directed Abraham and Isaac Vanmeter to pay to the executors of Jacob Vanmeter, the sum of 1835 dollars 50 cents, and Abraham Vanmeter to pay to the said executors the sum of 1305 dollars 25 cents, with the interest on each of said sums; directed the receiver, David Gibson, to pay over the money in his hands to Abraham Vanmeter; and dismissed the original, amended and supplemental bills of the plaintiffs, as to the defendants Abraham and Isaac Vanmeter; but without costs. From this decree, the executors of Jacob Vanmeter applied to this Court for an appeal, which was granted.

Stuart, for the appellants, and
Mason, for the appellees, submitted the case.


BALDWIN, J. delivered the opinion of the Court.
*8 It appears to the Court that the appellee Joseph Vanmeter, on the 23d of April 1810, in order to secure several large sums of money which he owed to Jacob Vanmeter, the testator of the appellants, and to indemnify him for liabilities as his surety, executed a deed of trust by which he conveyed several tracts of land in the county of Hardy for those purposes; and afterwards, to wit, on the 1st of March 1824, the said Joseph Vanmeter, by way of further security to said Jacob Vanmeter for all debts which he still owed him, and for all liabilities as his surety, executed to said Jacob a deed in the nature of a mortgage, by which he subjected all his lands in the county of Hardy for such security and indemnity. The said Joseph Vanmeter subsequently, to wit, on the 15th of March 1825, on a settlement with said Jacob of the debts aforesaid, and advances on account of the liabilities aforesaid, executed to him his obligation for the sum of 14,992 dollars 81 cents, the balance then ascertained in favour of said Jacob. And thereafter the said Joseph Vanmeter becoming further indebted to the said Jacob, executed to him his obligations therefor, to wit, one for 812 dollars on the 26th of September 1826, and another for 588 dollars 81 cents on the 14th of August 1827, and a third, with his sons Abraham and Isaac Vanmeter as sureties therein, for 1387 dollars 31 cents on the 1st of December 1827.
It further appears that the said Joseph Vanmeter on the 17th of October 1827, by a deed purporting to be an indenture between him and his said sons Abraham and Isaac Vanmeter, but executed by the grantor only, in consideration of their binding themselves to pay all debts due and owing by the said Joseph, and to pay to him 500 dollars per annum during his life, conveyed to them in fee all his lands in the State of Virginia and the United States, with the exception of a tract in the county of Monongalia: and that said Abraham and Isaac Vanmeter accepted said deed, and have held and enjoyed the property thereby conveyed.
And the Court is of opinion that the said Abraham and Isaac Vanmeter, by their acceptance of said deed and enjoyment of the subject, have acknowledged their personal liability for the debts of the grantor existing at the time of the execution of said deed, and the creditors have a right to enforce it. The condition was one which it was the right and the duty of the grantor to exact for the benefit of his creditors, and is equivalent to a covenant on the part of the grantees. If it was at all revocable by the grantor, he has in no wise attempted to revoke or resist its execution; and it cannot be resisted by the grantees, who, so far from shewing any ground of objection thereto, have expressly admitted in their answer the contract on their part.
And the Court is further of opinion that the said Abraham and Isaac Vanmeter are not only personally liable for the payment of such debts, but the creditors have a right to resort in a Court of Equity, to the lands conveyed by said deed, while in the hands of said grantees, in order to obtain satisfaction of their demands. It is true there is no trust expressly created by said deed, and that bona fide purchasers of the property thereby conveyed might not be bound to see to the application of the purchase money to the payment of said debts; but it is also true that such payment was a part of the consideration for the conveyance, and it is against equity and good conscience that the grantees should be permitted to hold the property without making such payment; nor can it be presumed that such was the intention of the parties, as that, under the circumstances, would have been fraudulent as against the creditors of the grantor; or that they did not regard the property conveyed as a means of enabling the grantees to make such payment, and to be resorted to if necessary for that purpose. A Court of Equity will therefore treat the subject as in the nature of a trust, and establish a lien on the property while in the hands of the grantees and their representatives as a means of compelling its performance.
*9 It further appears that the said Jacob Vanmeter in his lifetime instituted his suit in the late Chancery Court of Winchester, against the said Abraham, Isaac and Joseph Vanmeter, in order to recover the moneys due him as aforesaid; and to subject to the payment thereof the lands embraced by the said deed of trust of the 23d of April 1810, and the said deed in the nature of a mortgage of the 1st of March 1824, to wit, the lands of said Joseph in the county of Hardy. By the interlocutory decree rendered in that suit in April 1830, the said Abraham, Isaac and Joseph Vanmeter were directed to pay to the executors of said Jacob Vanmeter, in whose name the cause after his death had been revived, the sum of 24,831 dollars 12 cents, with interest on the greater part thereof till paid, and the plaintiffs' costs; and in the event of their default, the marshal of the Court was directed to make sale of the lands embraced by said deeds of the 23d of April 1810, and 1st of March 1824, and convey the same to the purchasers. The marshal, in conformity with said decree, sold the lands situate in the county of Hardy, consisting of twelve distinct tracts, for the amount of 12,465 dollars. And by a further decree rendered in said suit in June 1831, the marshal's report of his sales was confirmed, and the proceeds thereof applied towards the satisfaction of the amount due to the plaintiffs.
And the Court is of opinion that the last mentioned decree of the Winchester Chancery Court was a final decree. It had the effect of confirming the previous personal decree, disposed of the whole subject, gave all the relief that was contemplated, and nothing more remained to be done in that cause.
It further appears to the Court that on the 25th of February 1825, the said Joseph Vanmeter executed a deed of trust, by which he conveyed to Abraham Inskeep, as trustee, a tract of land in the county of Hampshire, called Claypoles, to indemnify the said Jacob Vanmeter and a certain Isaac Vanmeter the elder, as endorsers for the said Joseph Vanmeter in the Bank of the Valley at Romney, and as additional security for the purposes of the aforesaid deed in the nature of a mortgage, of the 1st of March 1824; by the provisions of which deed to Inskeep the proceeds from the sale of the land in Hampshire, thereby conveyed, were to be applied first to the payment of the bank debt, and then towards the discharge of the mortgage debt. The said Claypole land was sold by the trustee under the provisions of that deed.
It further appears that besides the twelve tracts of land in Hardy sold by the marshal under the decree of the Winchester Chancery Court, the said Joseph Vanmeter was, at the date of his said deed to his sons of the 17th of October 1827, the owner of other lands lying in the counties of Hardy, Hampshire and Preston, and in the States of Kentucky, Ohio and Illinois.
*10 It further appears that the objects of the present suit, brought by the executors of said Jacob Vanmeter in the Circuit Court of Hampshire against the said Abraham and Isaac Vanmeter and others, were to compel payment by the said Abraham and Isaac of the balance of the amount decreed against them personally in the Winchester chancery suit, after the application thereto of the proceeds of the marshal's sales; and to subject to that balance so much of the proceeds from the sale of the Claypole land as was properly applicable thereto, and also the aforesaid unsold lands in the counties of Hardy, Hampshire and Preston, and the States of Kentucky, Ohio and Illinois.
It further appears that pending the present suit, the defendants Abraham and Isaac Vanmeter, by leave of the Court, filed what they called their cross bill and bill of review, for the purpose of reversing the decree of the Winchester Chancery Court. That bill was properly dismissed by the interlocutory decree of the 5th of May 1834. Independently of the want of jurisdiction in the Circuit Court of Hampshire to review the decree of the Chancery Court of Winchester, the grounds of the bill were wholly untenable. These were, 1. That Abraham and Isaac Vanmeter were not properly liable to a personal decree against them at the suit of the creditors for the debts due from Joseph Vanmeter which they had undertaken to pay as aforesaid: 2. That it was error to direct the property embraced by the deed of trust and the mortgage to be sold, without some previous proceeding to ascertain the description of the lands. This cannot be said to be error on the face of the decree, for non constat that any difficulty on that subject would occur, especially when we take into view the knowledge which the said Abraham and Isaac Vanmeter must be supposed to have had as the owners of the property. And in point of fact it does not appear that there was any difficulty or loss, and if there had been, the proper mode of redress was an exception to the report of the marshal, and an application to the Court to set aside the sale, not a bill of review after a final decree. 3. That the sale was improperly conducted by the marshal. This, if true, which has not been shewn, does not appear upon the face of the decree, and is therefore not proper matter for a bill of review.
It further appears that by the interlocutory decree in the present suit of the 12th of October 1832, a commissioner was directed to ascertain and state the balance remaining due and unpaid to the complainants upon the decree of the Winchester Chancery Court, after deducting the amount raised by the sale of lands in that cause; and to ascertain and state the amount of the fund in the hands of the trustee Inskeep, arising out of the sale of the Claypole land, properly applicable to the balance due the complainants; and to ascertain and state the rents and profits taken or received by the said Abraham and Isaac Vanmeter out of the lands conveyed to them by the deed to them from said Joseph Vanmeter of the 17th of October 1827; and to ascertain and state what tracts of land were conveyed to the said Abraham and Isaac by the said Joseph by said deed of the 17th of October 1827, excepting such as had been sold by the marshal under the decree of the Winchester Chancery Court. And these matters were accordingly ascertained and stated by the report of the commissioner.
*11 And by the interlocutory decree in the present suit of the 5th of May 1834, so much of the said Claypole fund as was properly applicable to the amount due the complainants was so applied; and the said Abraham and Isaac Vanmeter were directed to pay to the complainants the amount, principal and interest, of the aforesaid obligation for 1387 dollars 31 cents, executed by them and said Joseph Vanmeter to said Jacob Vanmeter, on the 1st of December 1827; and the commissioner was directed to ascertain and report the balance still due to the complainants after deducting the sums thereby directed to be paid.
And by the interlocutory decree in the present suit of the 17th of September 1834, the balance still due the complainants, after crediting the sum applied from the Claypole fund, and deducting the amount of said obligation for 1387 dollars 31 cents, was ascertained, from the report of the commissioner, to be 10,414 dollars 68 cents, with interest from the 14th of December 1833; in part of which the said Abraham and Isaac Vanmeter were directed to pay to the complainants the sums ascertained on account of rents and profits as aforesaid; and for the residue of said balance, the lands not sold in the Winchester chancery suit were directed to be sold by a commissioner.
And the Court is of opinion, that the proceedings to ascertain and compel payment from the said Abraham and Isaac Vanmeter of the aforesaid rents and profits received by them was a work of supererogation, inasmuch as such payment could only enure as a discharge in part of the balance due from them to the complainants, for which balance they were already personally bound.
It further appears, that under said interlocutory decree of the 17th of September 1834, the commissioner sold the lands not sold in the Winchester chancery suit, and reported the payments made to him by the purchasers in cash, and their bonds for the deferred instalments; and that by the decretal order of the 15th of April 1836, confirming said report, part of the cash payments was directed to be paid, and part of the bonds for the deferred instalments to be delivered to the complainants in part discharge of the amount due them, and the rest of the cash payments and of the bonds were directed to be paid and delivered to a receiver of the Court.
And the Court, without deciding whether it was proper to subject to sale such of the lands conveyed by the said Joseph Vanmeter to his sons as aforesaid, as lie beyond the limits of this Commonwealth, is of opinion that the sales having been made and confirmed without objection, there can be no propriety in now disturbing the same.
It further appears, that in the progress of the present suit, Jacob Miller, adm'r de bonis non, with the will annexed, of one Abraham Vanmeter the elder, and Thomas Brammal, claiming to be creditors of the said Joseph Vanmeter, and as such entitled to participate with the complainants in subjecting the lands conveyed by the said Joseph's deed to his sons of the 17th of October 1827, were, by leave of the Court, directed to be made parties in the cause, and were accordingly made so by a supplemental bill of the complainants; but which they have not answered, nor does it appear that they have been served with process, or that any opportunity has been afforded them of establishing before a commissioner the justice of their claims.
*12 And it further appears, that after the said interlocutory decree of the 5th of May 1834, the said Abraham and Isaac Vanmeter removed beyond the limits of this Commonwealth; and by the said supplemental bill, the complainants sought to subject a large sum of money, in which a certain Michael Miller was indebted to the said Abraham Vanmeter, to the payment of the amount, principal and interest, of the aforesaid obligation for 1387 dollars 31 cents, executed by the said Abraham and Isaac, and the said Joseph, to the said Jacob, and which by said interlocutory decree of the 5th of May 1834, the said Abraham and Isaac were directed to pay to the complainants.
And by the interlocutory decree in the present suit of the 10th of April 1837, the said Michael Miller was directed, out of a part then due of the said debt to the said Abraham Vanmeter, to pay to the complainants the sum of 1400 dollars, to be applied as a credit to the said Abraham and Isaac Vanmeter, against the principal money and interest of this aforesaid obligation for 1387 dollars 31 cents, which by the aforesaid interlocutory decree of the 5th of May 1834, they were directed to pay to the complainants; and the master commissioner was directed to state an account shewing what amount would remain due and unsatisfied to the complainants after the application of the said credit for 1400 dollars, and after the application of a credit for so much of the proceeds of sales by the commissioner under the said interlocutory decree of the 17th of September 1834, as by the said interlocutory decree of the 15th of April 1836, was appropriated towards the amount due the complainants: and the master commissioner was directed to report separately the balance which would remain of the said sum of 1387 dollars 31 cents, and interest thereon.
And the master commissioner, in obedience to the said interlocutory decree of the 10th of April 1837, made his report, ascertaining the balance still due the complainants, exclusive of said obligation for 1387 dollars 31 cents, to be 11,546 dollars 63 2/3 cents, with interest on 10,414 dollars 68 cents, part thereof, from the 15th of April 1838; and also ascertaining the balance still due on the 1387 dollars 31 cents, and interest thereon, after the application of the credit for the 1400 dollars.
And by the interlocutory decree in the present suit of the 16th of April 1838, the last mentioned report of the master commissioner was confirmed, and the said Michael Miller, out of the aforesaid purchase money in his hands, directed to pay to the complainants the residue of the amount, principal and interest, of the decree upon the aforesaid obligation for 1387 dollars 31 cents, after crediting the aforesaid sum of 1400 dollars.
And it further appears to the Court that by the interlocutory decree in the present suit of the 14th of April 1840, it was held that the said Abraham and Isaac Vanmeter were not personally bound by the provisions of the aforesaid deed to them from the said Joseph Vanmeter of the 17th of October 1827, to pay the debts of the said Joseph, and consequently a decree was denied to the complainants against the said Abraham and Isaac Vanmeter personally for the aforesaid balance ascertained to be due to the complainants: and it was decreed that the said Michael Miller should pay to a receiver of the Court the money admitted in his answer to be due from him to the said Abraham Vanmeter, after deducting so much thereof as may have been paid by him to the complainants under said interlocutory decree of the 16th of April 1838, and after deducting also the amount of certain moneys paid by said Michael Miller and a certain David Parsons, as endorsers in bank for the said Abraham Vanmeter.
*13 And the Court is of opinion that the said interlocutory decree of the 14th of April 1840, is erroneous in holding that the said Abraham and Isaac Vanmeter are not personally liable to the complainants for the aforesaid balance ascertained to be due them as aforesaid; and in failing to decree payment thereof against the said Abraham and Isaac Vanmeter, and Joseph Vanmeter's personal representative.
And it further appears that by the decree in the present suit of the 13th of September 1842, upon a rehearing which had been granted to the said Abraham and Isaac Vanmeter of part of the aforesaid interlocutory decree of the 17th of September 1834, it was held that the said Abraham and Isaac Vanmeter were not liable for rents and profits of the lands conveyed to them as aforesaid; and therefore so much of the last mentioned interlocutory decree as decreed rents and profits against them was vacated and annulled: and it was further ordered and decreed that the receiver of the Court should pay to the said Abraham Vanmeter the money directed to be paid into said receiver's hands by the said interlocutory decree of the 14th of April 1840; and it was further ordered and decreed that the bills of the complainants should as to the said Abraham and Isaac Vanmeter, be dismissed.
And the Court, without deciding whether the said Abraham and Isaac Vanmeter were accountable for rents and profits, is of opinion, for reasons already suggested, that the vacation by said decree of the 13th of September 1842, of so much of said decree of the 17th of September 1834, as awarded rents and profits against them, is wholly immaterial.
And the Court is further of opinion, that so much of said decree of the 13th of September 1842, as directs that the receiver of the Court should pay to the said Abraham Vanmeter the money which had been directed to be paid into said receiver's hands by the said interlocutory decree of the 14th of April 1840 is erroneous, because that money was properly applicable, as funds of the said Abraham Vanmeter, towards the discharge of the personal liability of him and the said Isaac, for the debts of the said Joseph Vanmeter; and because it had already been so far as requisite, appropriated by said interlocutory decrees of the 10th of April 1837, and the 16th of April 1838, to the payment of the aforesaid debt of 1387 dollars 31 cents, for which the said Abraham and Isaac, together with the said Joseph, had by their aforesaid obligation of the 1st of December 1827, subjected themselves to a personal liability unquestioned and unquestionable.
And the Court is further of opinion, that so much of the said decree of the 13th of September 1842, as dismisses the bills of the complainants is also erroneous, they having already received, and being entitled to still further relief. The further relief to which they were entitled was a personal decree against the said Abraham and Isaac, and the personal representative of the said Joseph Vanmeter, who has died, for the aforesaid sum of 11,546 dollars 63 2/3 cents, with interest on 10,414 dollars 68 cents, part thereof, from the 15th of April 1838, till paid, and the costs expended by them in the prosecution of their suit; and to the following application of the funds within the control of the Court, to wit: The balance of the debt due from the said Michael Miller to the said Abraham Vanmeter, after reimbursement of the moneys paid by the said Michael, and David Parsons, as endorsers in bank for the said Abraham Vanmeter, ought to have been applied absolutely and unconditionally, to the discharge of the principal and interest of the debt of 1387 dollars 31 cents, for which the said Abraham and Isaac, with the said Joseph Vanmeter, had executed their obligation, and which by the aforesaid interlocutory decree of the 5th of May 1834, they were directed to pay to the complainants; and any residue of the said debt due from the said Michael Miller, ought then to have been applied towards the discharge of the principal and interest of the aforesaid balance due the complainants of 11,546 dollars 63 2/3 cents. And the other funds within the control of the Court arising out of the sales of lands unsold in the Winchester chancery suit, ought also to have been applied towards the discharge of the principal and interest of said balance of 11,546 dollars 63 2/3 cents. But these applications in favour of the complainants of the said funds within the control of the Court, ought to be subject to the proper modification, if any, arising out of the claims of Jacob Miller, administrator de bonis non with the will annexed of Abraham Vanmeter the elder, and Thomas Brammal, as creditors of the said Joseph Vanmeter, to participate therein, with a view to which the debts, if any due them, ought to be established before a commissioner, and then the question adjudicated whether they are entitled therefor to such participation.
*14 It is therefore adjudged, ordered and decreed, that so much of the said decrees of the said Circuit Court of the 14th of April 1840, and the 13th of September 1842, as is above declared to be erroneous, be reversed and annulled, and that the appellees Abraham and Isaac Vanmeter, and Joseph Vanmeter's personal representative, do pay to the appellants their costs by them expended in the prosecution of their appeal aforesaid here; and the cause is remanded to the said Circuit Court to be farther proceeded in according to the principles of the foregoing opinion and decree.

ALLEN, J. concurred in the results. But being of opinion that the decree of April 1830, was a personal decree against all the parties; that the Court of Hampshire county had no jurisdiction to review it, and that it still remains in full force, unreversed and not appealed from, did not deem it necessary to determine as an original question, whether the sons by taking under the deed in question, became responsible for all the debts of their father, or were chargeable in respect of the property conveyed alone, and for the value thereof, and no farther. For whether the personal liability of the sons resulted from the deed and their acceptance of its provisions, or from the decree fixing their personal liability did not affect the questions involved in the appeal.
Va. 1846.
WL 2600 (Va.)
END OF DOCUMENT

Copr. (C) West 2004

Vanmeter's Ex'rs v. Vanmeter  1846 WL 2600, *14 (Va. 1846)