
    *Simmons v. Lyles & als.
    November Term, 1876,
    Richmond.
    I. Vendor’s Lien — Dower—Rights of Creditor’s Vendee. —A vendor of land, who has retained the title, flies a bill against the widow and infant children of the vendee, for a sale of the land to satisfy his debt. The widow answers, claiming dower in the land subject to the vendor's lien. Judgment creditors of the vendee may make themselves parties to the cause, and have the land, subject to the vendor’s lien and the widow's dower, applied to the payment of their debts.
    II. Same — Same—Same — Commissioner of Sale. — In such case the debt of the vendor is ascertained, and a commissioner is appointed to sell the land, He reports that a friend of the widow and children of the vendee has paid to the vendor his debt, and therefore he did not sell the land. The vendor then ceases to be interested in the case, and it becomes the suit of the creditors of the vendee.
    III. Same — Same—Same — Same. — In such a case a commissioner is directed to settle the account of the administrator of the vendee, to take an account of the vendee’s debts and their priorities, and also of the present value of the widow’s dower in the land; and before the commissioner makes report the court decrees a sale of the land. Held;
    i. Same — Same—Same—Same—Sales—Priorities.—It was premature to decree a sale of land before the debts of the vendee and their priorities were ascertained, and a settlement of the administration account was made.
    3. Same — Same—Same—Same—Same.—It was also error to decree a sale of the land until the widow’s dower was assigned to her in kind, or it was ascertained that it could not be so assigned, and a moneyed compensation to her in lieu of her dower had been ascertained.
    IV. Dower — Assignment of. — A widow is entitled, as against creditors of her husband, by lien created since her marriage, to have her dower in his real estate assigned in kind, if it can be done, without regard to its effect upon the interest of his creditors. -If from the nature of the property, or of the husband’s interest in it, the dower cannot be assigned in kind, the*courtmay sell the whole property, and make to her a moneyed compensation.
    V. Appeal — Parties.—In this case'the vendor having-acquiesced in the decree for the payment of the amount ascertained to be due to him, and received the money; upon appeal by the widow and children of the vendee from a subsequent decree for the sale of the land for the payment of creditors, the appeal does not bring up the first decree, so as to entitle him as an appellee to have that first decree reviewed and reversed for error against him.
    In July 1868 James Jamieson filed his bill in the circuit court of Danville, alleging in substance that, in 1862, he had sold a lot of land, improved by valuable houses upon it, and situate in the said town of Danville, at public auction, for one-half cash, and the balance by bonds at one and two years, retaining the title as security for the payment of the purchase money; that William T. Simmons became the purchaser, and paid the half cash, and gave his bonds at one and two years for the residue of the purchase money, each bond being for $2,062.50, with J. M. Walker and H. W. Cole as his sureties; that Simmons was dead, and his estate insolvent; that said Walker was his administrator; that the said bonds were due, and had not been paid, except a small sum of $ ; that'Mary A. Simmons was his widow, and she and her infant children were in possession of the said lot of land and houses. And making the said Walker, as administrator and also as surety, the said widow and infant children, and the other surety, Cole, parties defendant to the bill, prayed that unless the whole balance of purchase money, according to the face of the two bonds, with interest, were fully paid off before a day to be given by the court, the said lot of land and houses might be sold, and the proceeds subjected to the payment of the said bonds, and for general relief, &c.
    *The cause was proceeded in against the said Walker as administrator, &c., as an absent defendant by publication, and the bill taken for confessed as to him and the other surety, Cole. The widow answered the bill sometime prior to the 13th March 1869, and admitted the allegations of the bill to be generally true, but said that one hundred dollars had been paid on said bonds; and she insisted that the purchase money of the house was, by the terms of the contract of sale, pajable in confederate money, and ought to be scaled accordingly. She also claimed her dower in the land to be assigned to her before any sale of the property, and to be allowed the value of permanent improvements put upon the land, and submitted her rights to the protection of the court. Richard W. Dyles was her counsel, and signed this answer as such counsel, and he was also appointed guardian ad litem for the infant defendants, and filed their answer to the bill.
    The only real question in controversy in this suit was, whether the purchase money was liable to be considered and scaled as confederate money. Accordingly at the March term, 1869, the court ordered an account to be taken of the real amount of purchase money remaining due to the complainant, with any special statements required by any of the parties, &c.
    No report having been made in obedience to this order, at .the Mai-ch term 1870 the said Richard W. I/yles filed his petition in the cause, alleging that he was a creditor of the said William T. Simmons, deceased, by two judgments, and by virtue of his judgments had a lien on the land, the subject of the suit; and admitting that his judgment lien was subordinate to the vend- or’s lien of the complainant,. Jamieson, and to the widow’s dower, he claimed that the surplus, after satisfying the vend- or’s lien and the widow’s dower, *was liable to the payment of his judgments; that another suit was pending in the same court between the said Lyles and one Cheek, Tredway and other defendants, in which said Lyles was seeking to subject other lands of the said Simmons to the payment of his said judgments, and that the two suits ought to be heard together; and praydng to be admitted a party to the suit of Jamieson in respect of his interest.
    Upon the hearing of this petition, the court, March term 1870, admitted the said Lyles as a defendant in this suit, and displaced him as guardian ad litem for the infants aforesaid, and appointed J. T. Liam guardian ad litem in his stead; and said Lyles having filed his answer in this suit, in which he repeated in substance only the allegations of his petition aforesaid, the court, upon the hearing of the answer, ordered that in addition to the matters required to be reported by the previous order, the commissioner should also ascertain and report in what kind of money the purchase money was payable, and what lands belonging to said W. T. Simmons, the judgments of said Lyles constitute a lien on, if any, and in what order; and what was the actual value of the property at the time of the sale thereof hy Jamieson to Simmons; and what is the present value thereof. No order was ever made for hearing this suit with the other suit, and they were not tried together.
    At the August term, 1870, the cause was heard upon the report of the commissioner Blackwell and exceptions thereto, made in •obedience to the orders of March 1869 and March 1870, and, without deciding any other question in the cause, the court ordered further accounts to be taken, viz: of all the transactions of Walker as administrator of Simmons; and of all the indebtedness of said Simmons at the time of his death, classifying said debts according to their respective priorities, *and showing whether said debts were individual debts, or debts due by him as a partner with others, with any other matter required by any of the parties to be specially stated.
    At the March term 1871, the court (without waiting for the report ordered at the August term 1870) heard the cause upon the above mentioned report of commissioner Blackwell (filed July 22, 1870), and overruled the exceptions taken thereto, and decided that the purchase money was payable in confederate money, and that the bonds ought to be scaled down to the sum of $106.08, with interest from the 29th of July 1870; and decreed that unless the heirs of said Simmons, or some one for them, paid that sum of $106.08, and interest, within sixty days, the property should be sold at auction by R. W. Peatross, who was appointed a special commissioner for that purpose. And the court further ordered that commissioner Moseley should take an account of the present value of the dower interest of Mary A. Simmons, after the payment of the said sum due to the complainant, Jamieson, and report at the next term. And the court further decreed that the defendant, Lyles, was entitled to have payment of his debt out of any surplus that may remain after the payment of the vend- or’s lien and the dower to said widow.
    On the ISth day of September 1871, special commissioner Peatross made and returned his report, showing that Sydney M. Simmons, on behalf of the heirs of W. T. Simmons, deceased, had paid the debt decreed to be paid to the complainant, Jamie-son, and that therefore he had not sold the property as required to do by the decree of March term 1871.
    
    At a special term of the court held on the 18th day of ^November 1871, the cause was further heard “upon the papers formerly read,” not including the said report of special commissioner Peatross made and returned September ISth, 1871, and the court expressing “the opinion that it will be necessary to sell the property in the bill and proceedings mentioned, to pay the debts of the estate of W. T. Simmons,” ordered and decreed that R. W. Peatross, who was again appointed a special commissioner for the purpose, should advertise for four weeks and sell the property on the premises (requiring cash enough to pay the costs of suit and the expenses of sale, and for the residue taking bonds payable in one, two and three years). And the court again ordered that one of the commissioners of the court should take an account of the indebtedness of the estate of Wm. T. Simmons, deceased, stating the debts in the order of their priority, &c. And thereupon Mrs. Simmons, and the two infant children by their guardian ad litem, J. T. Liam, applied to this court for an appeal from the decree of the 18th of November 1871; which was allowed.
    Jones & Bouldin, Robertson & Green, for the appellants.
    Ould & Carrington and E. Barksdale, for the appellees.
    
      
       Suits in Equity — Parties.—To a suit in equity brought by a creditor to satisfy his debt, other creditors of the defendant may be admitted as parties, Eor this rule the principal case is cited in the following: Piedmont, etc., Ins. Co. v. Maury, 75 Va. 513; Preston v. Aston, 85 Va. 144, 7 S. E. Rep. 344; Karn v. Rorer, etc., Co., 86 Va. 760, 11 S. E. Rep. 431; Patterson v. Eakin, 87 Va. 53, 12 S. E. Rep. 114. See further, 4 Min. Inst. (2d Ed.) 1248; Barton’s Ch. Pr. (2d Ed.) 187.
    
    
      
      Judicial Sales — Premature.—See, on this subject, Kendrick v. Whitney, 28 Gratt. 646, and note; Schultz v. Hansbrough, 33 Gratt. 567, and note-, New v. Bass, 92 Va. 387, 23 S. E. Rep. 747, citing principal case.
    
    
      
      Assignment of Dower. — For the rules governing the mode of assigning to a widow her dower, see citation of principal case in Parrish v. Parrish, 88 Va. 531, 14 S. E. Rep. 325; Reinhardt v. Reinhardt, 21 W. Va. 81; Hoback v. Miller, 44 W. Va. 637, 29 S. E. Rep. 1014. See also, 2 Min. Inst. (4th Ed.) 159 et seq.
      
    
    
      
       Appeals — Parties,—The ruling set out in the fifth headno'fé is followed in Burkholder v. Ludlam, 30 Gratt. 255, and note, citing principal case.
    
   Staples, J.,

delivered the opinion of the court.

The court is of opinion that no error was committed by the circuit court in permitting the appellee, Lyles, to file his petition and make himself a party to the cause. Although the bill of Jamieson was merely to enforce the vendor’s lien, and although it did not profess to be *'filed on behalf of the other creditors of Simmons, still it was competent for the creditors, or any of them, to make themselves parties to the suit, and claim the balance of the fund remaining after the satisfaction of the vendor’s lien for the purchase money. Such a course of proceeding is proper and beneficial whenever the object of the suit is a sale of the decedent’s real estate for the payment of his debts. All the parties interested in the property, or asserting liens thereon, being before the court, a multiplicity of suits is prevented, conflicting claims to priority adjusted, all difficulties in respect to the title cleared away, and the property placed in a position to command the most advantageous price. Without undertaking now to decide, whether in any case a decree can he made against the real estate of a deceased debtor unless an account is asked on behalf of all the creditors, it is sufficient to say, that such an account was ordered with the consent of the vendor, the only person who could have been heard to object. He has been paid the amount due him, and is no longer interested in the subject matter of controversy. So soon as a decree for a general account is entered it is to be deemed for the benefit of'all the creditors who may come in and prove their demands.

It is not necessary that a creditor should formally be made a party plaintiff or defendant. It is not necessary he should even file a petition. After a decree for a general account, even at the suit of a single creditor, all the other creditors may come in under the decree and prove their debts before the master to whom the cause is referred, and obtain satisfaction of their demands; and under such circumstances they are all treated as parties to the suit.

It was therefore competent for Lyles to come in by *petition, or to prove his debt before the commissioner, and Jamieson, the vendor, being no longer interested, the suit may be carried on in behalf of Lyles and other creditors of Simmons.

The court is further of opinion that the circuit court was premature in directing a sale of the house and lot in question by its decree of 18th November 1871. That decree contained a provision that one of the commissioners of the court should take an account of the indebtedness of the estate of William Simmons, stating the several debts in the order of their priority. This account ought to have been taken before the execution of the decree for the sale of the property. This court has repeatedly held that it is premature to decree a sale of the realty before adjudicating the claims of creditors and their respective priorities, in order to ascertain the precise amount chargeable upon such realty. Cralle v. Meem et als., 8 Gratt. 496; Buchanan v. Clarke, 10 Gratt. 164. There is nothing in the present case justifying a violation of this rule.

It is impossible to say whether there are other debts against the estate, or to what extent they constitute liens upon the realty. And although it is very probable there is no personal assets applicable to the payment of such debts, it cannot be positively affirmed that such is the fact. At all events, as the case is to go back to the circuit court upon other grounds, there can be no impropriety in directing also an account of the personal property if required by either of the parties.

The courtis further of opinion, that dower is to be assigned of one-third of the real estate, whereof the husband was at any ime seized during the coverture; that such assignment must be in kind by metes and bounds if required by the widow.

*When an assignment in kind is impracticable, from the nature of the husband’s interest, or from the nature and quality of the property itself, it will of course be dispensed - with, and some other mode adopted. But the court is not authorized to substitute a commutation or a compensation in money, merely because dower in kind may prove to be injurious to the interests of heirs or creditors. The right of the widow is a legal one, and is paramount to any and every claim or lien created by the husband after the marriage. In White v. White & als., 16 Gratt. 264, this court laid down the rule on this subject in the strongest possible manner. It was there held, that unless it was made to appear that it was impossible to assign dower in the real estate, it was not competent for a court of equity, in the exercise of its general jurisdiction, to decree a sale of the whole property, and to provide a compensation in money in lieu of dower against the consent of the widow, however much it might be to the interest of the heirs to have a sale of the whole, and a moneyed compensation to the widow.”

It is very true that the appellant made no resistance to a sale of the property; but it is to be remembered such resistance would, in the then attitude of the case, have been unavailing, as at the time of her answer filed the suit was merely to enforce the vendor’s lien for unpaid purchase money. The petition of Lyles was filed at a subsequent period, asking for a sale of the property to satisfy his judgment. The lien of the vendor has been discharged, and he is no longer interested in the prosecution of the suit. The controversy is now between the judgment creditor and the appellant. She has never consented to a sale in his favor. She has never agreed, so far as the record discloses, to *accept a moneyed compensation. There is nothing to show that an assignment of dower in kind is impracticable. We have no information on the subject, except that the property consists of a dwelling house and lot in the town of Danville. There may be outhouses for aught that we know, in which the dower may be assigned. The lot itself may be susceptible of a division; or as is not unfrequently done, where there is a single edifice, the dower may be assigned of so many rooms. 1 Roper on Husband & Wife; 1 Scribner on Dower 343.

This court is unable to say which of these modes, or whether either of them should be adopted. The case must be remanded to the circuit court for an inquiry upon these points. If an assignment in kind is found to be impracticable, the court may decree a sale of the whole property, and a moneyed compensation to the appellant in lieu of dower; or, it may adopt such other mode of adjustment as will produce the greatest equality with the least inconvenience. 1 Tucker’s Com. 66; 1 Wash, on Real Prop., page 236.

This disposes of all the material questions between the appellant and Ryles, the judgment creditor. It remains only to consider the application of Jamieson, the vendor, who is also an appellee, to correct the decree of the 29th March 1871. His objection is, that the amount due him was reduced by an improper application of the scale of depreciation. The court is of opinion, he cannot be heard to make that objection here in the present aspect of the case. So far from complaining- of the decree in question, he accepted the amount directed to be paid him. This payment and acceptance were reported to the court by the commissioner, and the sale of the property abandoned so far as he, Jamieson, was concerned. By the decree of *November 1871, the property was ordered to be sold for the benefit of Ryles, the judgment creditor. It is from that decree the appeal was taken by the widow to this court, and is now the subject of inquiry. In this latter decree Jamieson has no concern. He was no party to it, and he does not complain of it. The case comes directly within the operation of the rule laid down by this court in Walker’s ex’or v. Page, 21 Gratt. 636, 652; in which it was held, that where the parties stand upon distinct and unconnected grounds; where their rights are separate and not equally affected by the same decree; then the appeal of one will not bring up for adjudication the rights or claims of the other.” See also Burton v. Brown’s ex’or, 22 Gratt. 1, 14.

The court is therefore of opinion, that the appellee, Jamieson, having failed to take any appeal in this case, but, on the contrary, having acquiesced in the decree adjudicating his rights, by accepting the amount awarded him thereunder, cannot, as such appellee, be heard to complain of the errors, if any, in that decree to his prejudice.

Por the reasons stated, the decree of the circuit court pronounced on the 18th day of November 1871, must be reversed, and the cause remanded to the circuit court for further proceedings in conformity with the views herein expressed.

The decree was as follows:

The court is of opinion that the circuit court erred in decreeing a sale of the house and lot in the proceedings mentioned, without first taking an account of the indebtedness of the estate of William T. Simmons, as directed by the decree of the 18th November 1871; *and said circuit court also erred in decreeing said sale, before it was ascertained whether dower in kind could be conveniently assigned to the appellant, the widow of said Simmons.

It is therefore ordered and decreed, that so much of the decree aforesaid of the 18th November 1871, and of the decree of the 31st of March 1871, as is in conflict with the foregoing, be reversed and annulled, and as to the residue thereof be, and the same is hereby affirmed, and that the ap-pellee, R. W. Ryles, do pay, &c.

It is further ordered and decreed, that the cause be remanded to the said circuit court with directions to make the inquiry and take the account aforesaid; and also an account of the personal estate of which the said Simmons died possessed, if desired by either of the parties.

If upon such inquiry it shall be ascertained that an assignment of dower in kind is practicable, then such assignment is accordingly to be made if required by the appellant. If, on the other hand, it shall appear that an assignment in kind is impracticable, the entire property shall be sold on such terms as to the circuit court may seem proper, and a moneyed compensation awarded the appellant in lieu of dower.

Decree reversed.  