
    Wytheville.
    Moore v. Green.
    July 20th, 1893.
    1. Vendoe’s Lien — Decree of sale. — A portion of amount not being due, where . the time when due is stated in a decree of sale to enforce a vendor’s lien, does not render the decree erroneous.
    2. Idem — Decree for re-sale. — If it be error to decree to plaintiff the right to recover on a vendor’s lien for an amount not then due, such error will be cured by a decree for re-sale after the amount becomes due.
    3. Jurisdiction — Decree.—A recital in a decree that all the defendants had heen duly summoned, is conclusive on appeal in the absence from the record of anything to the contrary.
    Appeal from decree of circuit court of Smyth county, rendered December 15,1891, in the chancery causes wherein J. C. Green and others were complainants, and the appellants, L. A. Moore and Nathaniel Hibbert, were defendants. Opinion states the case.
    
      Blair Blair, for appellants.
    
      Walker Caldwell, for appellees.
   Lewis, P.,

delivered the opinion of the court.

On the 12th of September, 1890, the appellees conveyed to the appellants certain real estate, situate in Symth county, for $35,000. Of this sum $11,666 66 was to be paid in cash; the residue in three equal instalments of $7,777 77, payable, respectively, at six, twelve and eighteen months from the 15th of November, 1890, with interest. The appellants subsequently sold the land to Morris, Turner and Timlin, by whom the cash payment, above mentioned, was paid to the appellees, pursuant to the contract between the parties.

In October, 1891, the note for the first deferred payment being due and unpaid, the appellees filed their bill to enforce the vendor’s lien reserved on the face of their deed of the 12th of September, 1890. Process to answer the bill was issued, and, as the record recites, was duly served on all the defendants. The cause having been matured, a decree of sale was entered on the 15th of December, 1891, on the bill taken for confessed as to all the defendants. This decree, after reciting that all the defendants had been duly summoned, adjudged that “the defendants are indebted to the plaintiffs in the sums named in their bill, to-wit: to the amount of $23,333 31, with interest thereon from November 15, 1890, of which sum $15,555 54, with interest, is due and payable, and $7,777 77, with interest, will be due and payable on the 15th day of May, 1892.”

Subsequently the commissioner of sales filed his report, and afterwards, at the April term, 1892, the appellants answered. They also, at the same term, excepted to the report of sale, on the ground of inadequacy of price, which exception the court, by a decree entered at the August term, 1892, sustained, and ordered a resale.

The present appeal was taken from the decree of December 15, 1891; and there are two assignments of error. The first is that “ it was error to decree to the plaintiffs the right to recover from petitioners $7,777 77, which sum was not due and payable at the time of said decree.” This assignment is sufficiently disposed of by the language of the decree above quoted, from which it appears that the court decreed (quite superfluously), not that the specific sum was due, but that it would become due on the 15th day of May, 1892, which is not disputed. Besides, when the appellants’ exception to the report of sale was sustained, and a re-sale was ordered, the whole of the purchase-money had become due; so that, even if the first decree were susceptible of the construction put upon it in the petition for appeal, it would not be an error to the prejudice of the appellants.

The second assignment of error is “that it was error to enter the decree aforesaid without the court having before it the return of an officer showing that petitioners had been summoned to court.” This objection, like the first, is so entirely without merit as hardly to deserve serious consideration. The decree recites on its face that all the defendants had been duly served with process, and in the absence of anything in the record to the contrary, the presumption is conclusive that the recital is true. Hill v. Woodward, 78 Va., 765; Ferguson’s adm’r v. Teel, 82 Id., 690, 697. In both of these cases the court, speaking by Judge liichardson, said: “When a court of general jurisdiction has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the cause.”

In the present case; whilst it appears that process was returned executed on the husband of the female appellant, Mrs. Moore, it does not affirmatively appear that process was served on her. But, as was said in the Fergussou case, another copy of the original writ may have been served on her, or the fact of service may in some way have been satisfactorily shown to the court below, though not affirmatively appearing by the record before us.

The appellants, moreover, appeared in the lower court and answered, and the objection that they were not duly summoned is for the first time made in the petition for appeal. This was too late to raise such an objection. In the pertinent language of the Supreme Court in Creighton v. Kerr, 20 Wall., 8, which was approved by this court in A. & D. R. R. Co. v. Peake, 87 Va., 130, 140, a general appearance waives all question of the service of process. It is equivalent to personal service. The question of jurisdiction only is saved.”

The case is too plain for further discussion.

Decree aeeirmed.  