
    *Penn's Adm’rs v. Spencer & als.
    [91 Am. Dec. 375.]
    October Term, 1866,
    Richmond.
    1. Settlements on Wife — Case at Bar. — A full settlement made upon the wife of an insolvent man, though a partial provision previously made for her by her father’s will.
    2. Commissioner’s Report — Exceptions to — Waiver.— Though a cross bill sets up a special charge against a party, if upon taking the account by a commissioner, this item is not charged, and the plaintiff in the cross bill does not lexceptf to the report for the failure to make this charge, it will be considered as abandoned by the plaintiff.
    3. Deeds of Trust — Impeachment of. — A cross bill is filed to impeach deeds of trust set up by co-defendants, both plaintiff in cross bill and these defendants claiming satisfaction out of the same fund. Though the deeds are sustained, plaintiff is entitled to have an account of the fund. And if it is doubtful if the debt for which one of the deeds is given is not in part due to the plaintiff, that should be inquired into, and in tbe absence of fraud, the deed be held valid for the balance.
    4. Sale under Execution — Failure to Ascertain Estate-Effect — Liability of Purchaser. — A sale by the sheriff of the interest of an execution debtor in an estate, before it is ascertained, is void; and the purchaser, if he took possession of the property, will be liable for the rents, hires and other profits of the property, and for the value of such of it as he has sold or otherwise converted to his own use, or has been lost by his act or wilful neglect: and he will be entitled to be reimbursed for the amount paid by him to the sheriff for the property.
    On the 20th of February, 1852, William Spencer and Sarah P. his wife filed their bill in the .Circuit court of Henry county, setting out the death of David R. Hill, the brother of the female plaintiff, intestate; claiming that as his sister she was entitled to one-fourth of his ^estate, which consisted of valuable real estate, slaves, &c. and asking for distribution.
    At the May term of the court, 1852, Mrs. Spencer filed her petition, by her next friend, stating that her husband had broug'ht the suit without her consent; that he was insolvent and improvident; and asking for a settlement upon her out of property coming to her from her brother’s estate. The court directed that she should be made a party in the suit, and have leave to prosecute her claim by her next friend. And at the same term, the plaintiff William Spencer dispensing with further pleadings and admitting her right to a settlement, the court made a decree appointing commissioners to divide the land and slaves of which David R. Hill died possessed, into four equal parts, and directing that they should assign the different parts to the parties named, one-fourth to Sarah P. Spencer, this part to be subject to a settlement to be made upon her, which the court would decree when the facts were ascertained so as to enable the court to fix the amount thereof. The decree further directed a commissioner to fix the yearly value of the lands and slaves; to ascertain whether any property had been settled upon her; and that he also take an account of the administration upon the estate of David R. Hill deceased.
    At the October term 1852 of the court, Samuel Hairston and Greenville Penn’s administrators filed their petitions, stating that they were creditors by judgments obtained at the May term 1852, of William Spencer, on which they had sued out executions, which had been returned no effects; contesting the right of Mrs. Spencer to a settlement, on the ground that she had already been provided for under her father’s will, and that all her children were grown, married and well to do in the world; and asking that they might be made parties defendants in the cause. And the court made an order directing the *plaintiffs to amend their bill and make the petitioners parties. Though the order was made at the October term 1852, the amended bill was not filed until the May term 1854.
    On the 6th of December, 1852, the commissioners appointed to divide the estate of David R. Hill deceased, made their report, by which they allotted to Mrs. Spencer eight slaves, valued $3,050, out of which she was to pay $87.50, and a tract of land of two hundred and twelve acres at nine dollars per acre, equal to $1,912.50, and she was to receive $125. At the May term of the court for 1853, the commissioner reported a settlement of the administrator’s account, showing' Mrs. Spencer entitled to receive from the administrators $765.82. He reported that there had been settled upon her, under her father’s will, four slaves, one old man and a woman and two children, the annual value of which he put at forty-five dollars. And estimating that it would take three hundred dollars a year to support her, and deducting the forty-five dollars from that, and taking her age to be seventy-five years, he estimated it would require the sum of $1,556.30 to raise the income of two hundred and fifty-five dollars for her life.
    At the May term 1854, David H. Spencer the son, and Greenberry Nickols the son in law of the plaintiffs, filed their petition to be admitted defendants to the suit, claiming that they were creditors of William Spencer, and David H. claiming also as a purchaser of Willaim Spencer’s interest in the estate of David R. Hill under a sale by the sheriff under execution. David H. Spencer claimed under a deed of trust executed by William Spencer to Hughes Dillard. It bore date the 28th day of January, 1852, and was admitted to record on the next day, and was in trust to secure to David I-I. Spencer a bond of the same date with the deed, for $413.88. *Hichols claimed under a deed of the same date and recorded on the same day, but it recognized the prior execution of the deed to secure David H. Spencer; and it was in trust to secure a bond of $1,519.50, of the same date with the deed.
    David H. Spencer further claimed under a sale made by the sheriff under an execution, which was issued on a judgment recovered by John Stone, jr., against William Spencer. This judgment was recovered in May, 1837. In the same month an execution of fieri facias was issued upon it, which was returned “no effects.” In September, 1843, a ca. sa. was issued on which WTilliam Spencer was taken in custody and took the benefit of the act for the relief of insolvent debtors. And without any application to the court, so far as this record shows, Stone sued out another execution of fieri facias on the 14th of January, 1852, which went into the hands of the sheriff, and is returned satisfied in part by the sale of the defendant’s interest in David R. Hill’s estate.
    It appears that William Spencer was summoned before a commissioner, by summons dated the 14th of February, 1852, and service acknowledged the 17th, to state what property he had on the 15th of January; and he gave in his interest in David R. Hill’s estate, and conveyed this interest to the sheriff. This interest was sold by the sheriff on the 12th of April, 1852, to David H. Spencer, for three hundred and five dollars.
    At the May term 1854 the plaintiffs amended their bill and made Hairston, Penn’s administrator, David H. Spencer and Hickols defendants. And at the same time David H. Spencer and Hickols answered, setting up their claim as hereinbe-fore stated.
    On the 5th day of October, 1854, Hairston and Penn’s administrators filed their answers, claiming under their judgments, which were recovered at the May term 1852, *and the executions which were issued upon them, which they insisted gave them a lien upon William Spencer’s interest in the estate of David R. Hill. They insisted that Mrs. Spencer and her children were in comfortable circumstances; Mrs. Spencer by means of a provision made for her by her father’s will: and they exhibited a copy of the will and of the record of a suit in the county court of Henry for a division of his estate and a settlement upon Mrs. Spencer according to its directions. By the will of Mrs. Spencer’s father, William Hill, after making a provision for his wife, he directs the balance of his personal property to be divided into five parts; one part to remain in the hands of his son John W. Hill for the benefit of his daughter Mrs. Spencer and her four children, with authority to deliver it to the children as they come of age if he thought proper, but to keep enough in his possession to support Mrs. Spencer. And by the 13th clause he directs the balance of his lands to be divided into four parts; one part to John W. Hill for the four children of Mrs. Spencer, to be given them as they come of age, reserving as much as he majr think proper for the support of his daughter Mrs. Spencer.
    By the record of the suit in the county court it appears that the property was sold under the decree of the court by David R. Hill, and that the share of each amounted to $1,476.79; a part of this sum the court decreed to be invested in land for Mrs. Spencer; and it appears by the report in the cause that David R. Hill did buy a part of the'testator’s land to the amount of $504 ; and he is credited for the amount of that purchase in the account stated between himself and Mrs. Spencer; and she lived on that land from that time until the final decree in this cause. She says that it is not hers, but that David R. Hill purchased it and conveyed it to David H. Spencer; but it does not appear that David R. Hill accounted to *her or her children for the price. In addition to the land she received the slaves hereinbefore mentioned.
    At the same term of the court, and on the first day of the term, Penn’s administrators asked leave to file their cross bill in the cause, which was allowed, but so as not to delay the hearing of the cause; and in the same decree in which the permission is given, viz. the 10th day of October, 1854, the court proceeded to make a decree which confirmed the report of the division of David R. Hill’s estate, made a settlement on Mrs. Spencer of $1,556.30, and gave her the option to take the amount in slaves belonging to her share of the estate, or a part in money in the hands of the administrator of David R. Hill’s estate, and the balance in slaves.
    The cross bill of Penn’s administrators sets out the proceedings in the first cause and their judgment and execution against William Spencer.-, They object to a settlement upon Mrs. Spencer for the reasons before given; and charge that the claims of David H. Spencer and Nickols are pretended; that David H. Spencer’s purchase at the sheriff’s sale is void; and making these persons and others parties, they ask that the deeds of trust and sale may be declared null and void, and that they may have satisfaction of their judgment out of the property, and for general relief.
    In May, 18SS, these parties answer. William Spencer and wife insist upon her right to a settlement. David H. Spencer and Nickols insist that their debts are upon full and valuable consideration. Nichols says the bond' given to him by William Spencer, which is secured by his deed, was given in part for one-half of the debt for which Penn’s administrators had recovered judgment. That their judgment was upon an old bond given by William Spencer to J. & O. Williams, of Richmond, which was assigned to Greenville Penn to enable him to collect it, *for which he was to receive one-half. • That Nickols had purchased the other half from O. Williams, the surviving partner, and . he exhibited with his answer a note from O. Williams to Penn stating that he had sold his interest in the claim of J. & O. Williams on William Spencer, and requesting Penn to endorse on the note the assignment without recourse to him.
    At the October term 18SS, Hairston and Penn’s administrators filed a petition for a rehearing of the decree of the 10th of October, 1854, setting out the proceedings ; showing by the answer of Mrs. Spencer to the cross bill that, whilst in the commissioner’s estimate of the value of her life estate she was taken to be but seventy-five years old, her answer shows she was eighty-two; and that the commissioner had made a mistake as to the annual value of the property: and they further state, that about two years before the filing of the petition, and pending this suit, Mrs. Spencer had recovered from D. H. Hill’s estate the sum of $781.50, a part of the sum of $1,476.79 settled on her by her father, and that she had voluntarily distributed the same among her children.
    At the April term 1857, the death of William Spencer was suggested; and, on the 4th day of September, 1857, by an order of the court, the commissioner returned his amended report, reducing the settlement of Mrs. Spencer to $1,224.06; and on the same day, the two causes came on to be heard, when the court dismissed the cross bill with costs; and in the first cause, deducting $60 as the annual hires settled on Mrs. Spencer by her father, reduced the allowance to Mrs. Spencer to $1,164.06; and directed that the administrators of David R. Hill should pay to Mrs. Spencer $763.82, the amount in their Ijands, and that if David H. Spencer or Greenberry Nickols did not pay to her the balance, a commissioner named should take one or more of the slaves assigned to Spencer and *wife under the partition made in the cause, and sell them and pay her, and the balance of the purchase money return to D. H. Spencer and Nickols. Prom this decree Greenville Penn’s administrators applied to this court for an appeal, which was allowed.
    Grattan, for the appellants.
    There was no counsel for the appellees.
    
      
      Commissioner’s Report — Exceptions to — Waiver.— If the report of a commissioner is not excepted to, objections are thereby waived, and it cannot be impeached, either at the hearing of the cause or in the appellate court, unless it be for efcrors apparent nponitsface. Hymanv. Smith, 10 W.Va. 317; Wyatt v. Thompson, 10 W. Va. 651; Keck v. Allen der, 37 W. Va. 202, 16 S. E. Rep. 520; ward v. ward, 21 W. Va. 271, all citing the principal case. See also, mono-graphic note on “Commissioners in Chancery,” sec. V, A and B, appended to whitehead y. whitehead, 23 Gratt. 376.
    
   JOYNRS, J.,

delivered the opinion of the court:

The court is of opinion that there is no error, to the prejudice of the appellants, in so much of the decree as makes a provision by way of settlement for the appellee Sarah P. Spencer. The court is of opinion that the amount of said settlement ought not to be abated by deducting therefrom the sum of $781.50, recovered from the estate of David R. Hill on account of what was bequeathed to said Sarah P. Spencer by her father, 'William Hill, and by her divided among her children, because, though the act of Mrs. Spencer in thus giving up that amount during the progress of this cause, was urged by the appellants, in their petition for a rehearing, as a ground of objection to any settlement upon her, no exception was filed by them to the amended report of the commissioner, made two 3rears after the filing of that petition, correcting other errors in the former report pointed out by the petition, but taking no notice of this objection. The objection must, therefore, be considered as abandoned by the appellants, and the court must presume that it would have been repelled if it had been insisted on.

But the court is of opinion that there is error in that part of the decree, to the prejudice of the appellee Sarah P. Spencer, in deducting the sum of sixty dollars from the amount reported by the amended report as the amount *that ought to be settled upon the said Sarah, which error, however, may be corrected in the subsequent progress of the cause, by decreeing to her that additional amount, with interest thereon; and does not make it necessary to reverse the decree.

And the court is further of opinion, that there is error in so much of the decree as dismisses the cross bill of the appellants, for which the cause should be reversed. The cross bill was necessary to put in issue the fairness and validity of the deeds of trust in favor of jDavid H. Spencer and Green-berry Nickols, and the validity of David H. Spencer’s purchase at the sale under Stone’s fi. fa. The court is of opinion, that the deed of trust of David H. Spencer has not been successfully impeached, and that the same must be taken to be valid, and that there should be an inquiry by a commissioner whether the one-half of William Spencer’s debt to J. & O. Williams, claimed b3r Greenberry Nickols in his answer, and forming part of the amount provided for in his deed of trust, belonged, at the date of said deed of trust, to the said Nickols, or to the appellants P. P. and T. J. Penn, administrators of Greenville Penn deceased. If, upon such inquiry, it shall be found, that the said half of said debt belonged to the said Greenberry Nickols, then the, amount thereof should be deducted from the amount of the judgment and execution of the said appellants, which should be held valid only for the residue after such deduction, and the deed of trust of said Greenberry Nickols should be held valid for the whole amount provided for thereby. But if, upon such inquiry, it shall be found that the said half of said debt belonged to the said appellants, then the amount thereof should be deducted from the amount provided for in the deed of trust of said Nickols. And it not appearing that the said sum was included in the amount provided for by said deed with :('any fraudulent intent in case such deduction should be made, should not be set aside altogether, but should be held valid for the residue after such deduction.

The court is farther of opinion, that the sale under Stone’s fi. fa. of the interest of William Spencer in the estate of David R. Hill deceased, was invalid upon the principles of Clough v. Thompson, 7 Gratt. 26, and ought to be set aside and annulled. It does not appear whether David H. Spencer went into possession under his purchase at the said sale, but if he did, he is liable to account for all the rents, hires, and other profits of the property embraced in said sale, while the same remained in his possession or under his control, and also for the value of any of the said property that may have been sold by him, or otherwise converted to his use, or lost by his act or willful default. He will be entitled to be reimbursed the sum of $305, paid by him to the sheriff as the consideration for said purchase, with interest from ihe time of payment, inasmuch as in this collateral proceeding Stone’s execution must be held to have been regular and valid, but he is not entitled to be reimbursed out of the real estate, which is the property of said Sarah P. Spencer, nor out of the fund already settled or to be hereafter settled upon her.

The court is further of opinion, that the decree dismissing the cross bill is also erroneous in not directing an account of the surplus of the property in question after satisfying the provision decreed to said Sarah P. Spencer, though, if there were no other error, this might be corrected without reversing the decree, as was done in Marks & al. v. Hill & al., 15 Gratt. 400.

It is therefore adjudged and ordered, that so much of the decree in this cause as makes a provision by way of settlement for the appellee Sarah P. Spencer, be affirmed, and that the said decree be in all other things ^'reversed and annulled, and that the appellees, who are personal representatives, out of the assets in their hands respectively, and the other appellees, out of their own estates respectively, pay to the appellants their costs about their appeal expended. And the cause is remanded to the Circuit court for further proceeding, according to the foregoing opinion and decree.

Decree reversed.  