
    *Walters v. Hill & als.
    March Term 1876,
    Richmond.
    i. Suit Setting; Aside Decree of County Court. — L died in 1863. By his will he gave to the children of a deceased daughter E, all inf ants, to two married daughters, to one not married, and to a son, the residuum of his estate ; and appointed K his executor and trustee, to hold the same for the separate use, &c., of his daughters, and after their death to their respective children. In 1863 K filed a hill in the county court, alleging he had bought of L, in his lifetime, a tract of land called T, and had paid him the price, and was put in possession, hut the title was not made; and he asked for a conveyance. With the hill he filed a paper signed hy the widow and three daughters of L and their husbands, hy which they express the wish that a deed for the land may he made to K. when the hill was filed, an answer was filed for the parties who had signed the paper, and by a guardian ad litem for the infants. And at the same time a decree was made appointing a commissioner to convey the tract of land to K. At another term the decree was amended, and the commissioner was directed to convey also to K a small tract adjoining T, with a mill on it. The commissioner died without conveying the land to K ; and K sold'it to W, hut had made no deed. In 1869 the six infant children of E, and the two married daughters, filed their hill against K and W, to set aside the decree of the county court and recover the land. They alleged that there was no written contract "between L¡ and K ; that K had not paid a dollar for it; that they knew nothing- of the suit, and were not parties to it, and it was not binding on them. K answered, admitting he had not paid any part of the price to L ; but their contract was, that he was to be executor of L, and apply the price in the course of administration. W said he bought and paid, with no knowledge of any act or conduct of K which would defeat his title. The decree of the county court was held to be void and of no effect as against the plaintiffs. K was removed from the trust, and another trustee appointed, who was decreed to hold the land under the same title and the same right prescribed by the will of L ; and the decree was affirmed by this court.
    *William Lyon, of the county of Pittsylvania, died in 1863, and his will was duly admitted to probate in the county court of that county. By his will he provided that his property should be equally divided among- his children then living, and the descendants of such as were • dead, the descendants to take their parents’ share; and all his children, except his son William, were to have but a life-interest in ■ the property given them, and at their death ■ the same to go to all their children living ■ at their respective deaths. He directed-that what was called his Thomas tract, contain- ■ ing about two hundred and seventy-five ■acres, should be valued by two neighbors, and that his son William should take it at said valuation, as a part of his share of testator’s estate. And he directed that all the property of every description, given to his daughters and to his son James, should be vested in Witcher W. Keen, as trustee, to hold the same for the sole and separate use of his daughters, free from the debts of their respective husbands, and after their deaths to go to their children. And he appointed said Keen his executor; who qualified as such. The will bears date July 7th, 1859.
    William Lyon died in the lifetime of his father; and the controversy in this case re-' lates to the Thomas tract of land devised to .him.
    . On the 16th of November 1863 W. W. Keen .presented his bill to the county court of Pittsylvania, in which he says, that several years before that time he purchased of William Lyon a tract of land in the county of Pittsylvania, with a mill thereon, known as a part of the Thomas tract, containing .by estimation two hundred and seventy-four acres: that he paid to Lyon the full amount of the purchase money for said land, and took possession thereof; that Lyon after-wards *died without conveying plaintiff the land, leaving a widow and children and grandchildren, the children of a. daughter Elizabeth Hill, who was dead, the grandchildren being infants. He says that the adult parties are willing to make title to said lands, but the infant parties are incapable; and making the widow, the .daughters and their husbands, and the infant children by name, parties, he calls .upon them to answer; and prays that the title to said land may be made to him, and for general relief.
    The plaintiff filed with his bill a paper dated October 9th, 1863, signed by the widow, James Lyon, the two married daughters and their husbands, and an unmarried daughter, in which they say- — We the widow and heirs at law of Win. Lyon, deceased, of Pittsylvania county, are desirous that the title to a mill and a tract of land called the Thomas tract, which were sold in the lifetime of said ffm. Lyon, should be made good to W. W. Keen, who-purchased said mill and land of said Lyon in his lifetime, and received possession thereof, but no conveyance, do hereby authorize and request the court to make such decree as will complete the contract and make the title good to W. W. Keen.
    At the same time that the bill was presented, a paper purporting to be the answer of the same parties who had signed the above paper, was also filed, in which they say they admit the allegations of the bill to-be true, and they are willing that their interests in the land in the bill mentioned shall be conveyed to the plaintiff: And still at the same time, on motion of the plaintiff, a guardian ad litem was appointed for the infant defendants, and an answer-by their guardian ad litem was filed for them, in which they say — they have no doubt of the truth of the facts in said bill, and submit *their rights to be disposed of as may be proper and legal. • On the same 16th of November 1863, the cause came on to be heard upon the bill, answers and exhibits, when it was decreed that James M. Williams do, by proper deed with special warranty, convey the land in the proceedings mentioned as part of the Thomas tract, with the mill thereon, to the plaintiff.
    And at another day, viz: on the 19th of September 1864, the cause came on upon the papers formerly read, and upon the application of the parties to correct the decree pronounced at the November term 1863; and it being agreed (as the decree states) that the Thomas tract of land in the bill mentioned contains two hundred and -seventy-four acres, and is separate from a tract of twenty acres with mill thereon, which-was held by William Lyon deceased and James H. Howerton, the court doth alter and amend said former decree, and decree that James M. Williams, instead -of executing said decree, do, by proper deed with special warranty, convey to W. W. Keen the interest of the said William Lyon deceased in the said tract of two hundred and seventy-four acres, a plat of which, &c., and- also the interest of the said William Lyon in the tract of twenty acres, with mill thereon.
    In February 1869 the six infant children of Elizabeth Hill deceased, and the two married daughters of William Lyon deceased, by Mrs. Ellen H. Lyon, their next friend, and Mrs. Carter, the unmarried daughter, instituted their suit in equity in the circuit court of Pittsylvania county, against W. W. Keen in his own right and as trustee, &c., under the will of William Lyon deceased, A. G. Walters, James Lyon, and the husbands of the married plaintiffs. After referring to the will of William Lyon, and the death of his son *William in his lifetime, they claim that they are entitled to the land devised to him as a part of the residuary estate of the testator William Lyon. They refer to the suit brought by Keen, and exhibit a copy of the record. They charge that Keen never paid one cent of said land to said Lyon in his lifetime, or to any other person at any time, and that he is largely indebted to his testator’s estate as executor. They charge that they were no parties to the suit. The married daughters say they have no recollection of signing the paper exhibited with Keen’s bill, but may have done so at the request of Keen, in whom at the time they placed great confidence, he being the executor appointed by their father. But if they signed it, they were at the time married women, and they are not bound by any admissions in it. The plaintiffs further charge that no written contract was made between Keen and William Lyon for said land, and no money paid by Keen. They are informed that Keen has contracted to sell said land to A. G. Walters, but no deed has been made by Keen to Walters; they do not know whether a deed was made by Williams to Keen.
    The prayer of the bill is, that the decree of the county court may be set aside and annulled; that Keen may be removed as trustee under the will of said William Lyon; for a sale of the land for partition among the residuary devisees; and for general relief.
    At the October term 1869 of the court, Walters demurred to the bill on the ground of multifariousness, and because the bill does not charge fraud in procuring the decree of the county court, and does not show any ground on which the court could set aside the proceedings and decree of the said county court.
    Keen answered the bill. He says he purchased said *land from Wm. Lyon some time before his death, with the understanding that he was to be Lyon’s executor, and as such would apply the purchase money of said land (which it was agreed should remain in his hands,) to the payment of whatever claims might be found outstanding against said Lyon’s estate ; and under this agreement and understanding, the said Lyon in his lifetime put him, Keen, in full possession of said land. He admits there was no written contract between him and said Lyon for the said land, and that he did not pay to Lyon in his lifetime any part of the purchase money, as under the contract of sale he was not to pay the money to him in his lifetime, but was to apply it after his death to the benefit of his estate; and he has not since his death paid the legatees. He admits he sold the land to C. G. Holland, who ordered a deed to be made to A. G. Walters. He denies that he, as executor, is largely indebted to the estate of his testator, or is in fact indebted to said estate at all, except for such portions of the purchase money for said land as may still be due. He denies the allegations of the plaintiffs, both adults and infants, that they were not parties to the suit in the county court, and he denies that there was any fraud in obtaining the decree in that case; and he insists the adult parties are bound by the paper they signed; which they signed freely and with full knowledge of its contents. .
    The court overruled the demurrer of Walters to the bill; and he thereupon filed his answer. He insists that the proceedings in the suit brought by Keen are valid; that no fraud is charged; and certainly the decree was not procured by any fraud of which he, Walters, had knowledge. He does not know whether Williams executed the deed to Keen; but insists that so far as the- title or rights of Keen and those claiming Hinder him are concerned, the fact ,is immaterial; as a court of equity will regard that as done which ought to have been done by said commissioner. That Keen sold the land to Holland for full value, and Holland transferred his purchase to respondent for full value. It was true that Keen had not conveyed the land *o.respondent, but the only reason for that was, that Williams, the commissioner, appointed to make the deed to Keen, died in 1864, and it was supposed that Keen’s deed to respondent would not be good until a new commissioner was appointed; and the matter passed by from neglect.
    There was evidence taken in the cause which showed that Keen had a very large property in his possession during the war, and was in good credit; but he was largely indebted, he having become a bankrupt in 1867 or 1868, when his debts amounted to between four and five hundred thousand dollars.
    The cause came on to be heard on the 5th of June 1871, when the court being of opinion that the decree of the county court of Pittsylvania in the bill and proceedings mentioned was obtained in fraud of the rights of the plaintiffs, decreed the same to be void and of no effect as to them; and it was further decreed that the powers of Keen as trustee, under the will of William Lyon, should be revoked, and he should-be removed from his trust, and Joseph I). Blair appointed in his place; that the infant plaintiffs, and said Blair as trustee, were entitled to hold the land under the same title and in the same right prescribed by the will of William Lyon; and it being admitted by all the parties in interest that the said land could not be conveniently divided in kind, the said Blair was appointed a commissioner to sell the same in the manner and on the terms stated in the decree. Prom this decree '^Walters applied to this court for an appeal; which was allowed.
    Robertson & Green and Jones & Bouldin, for the appellant.
    
      Tredway, E. E. Bouldin and W. W. Henry, for the appellees.
   Anderson, J.,

delivered the opinion of the court.

William.Eyon departed this life in March 1863. Previous to his death he made and published his will, bearing date the 7th of July 1859; by which he bequeathed to the children of his deceased daughter Elizabeth Hill, all of them infants, and his three living daughters, and his son James, the whole residuum of his estate; and appointed Witcher W. Keen his executor. All the property given to his daughters and to his son James by his will he vested in said Witcher W. Keen as trustee, to hold the same for the sole and separate use of his said daughters, free from the debts of their respective husbands, and after their deaths to go to their respective children, as he had before directed. The bequest to his son James was made to him for life, remainder to his children by the woman Jane, to the exclusion of any children he has by any other person. The children of Elizabeth Hill were to get one hundred dollars less than a child’s part, and his son James was to get one hundred dollars less than a child’s part; and none of the other children to account for any advancements theretofore made.

The tract of land which he calls his Thomas tract, containing about two hundred and seventy-five acres, *he directed to be valued by two neighbors, and to be taken by his son William at valuation, and to be accounted for by him in the equal division. William died before the testator, unmarried and without issue; by reason whereof this devise to him lapsed ipto the residuum. This controversy is in relation to that tract of land.

W. W. Keen, the executor and trustee, claimed to have purchased it from the testator in his lifetime; and after his death he filed his bill in chancery in the county court of Pittsylvania, on the 16th day of November 1863, against the widow and de-visees and legatees of William Eyon deceased ; alleging that he had purchased the said tract of land of the decedent in his lifetime, had paid him the full amount of the purchase money, and had taken possession of it under his purchase; that said Eyon had departed this life without conveying him the title; and he prays that the title may be conveyed to him. On the same day, November 16th, 1863, a decree was pronounced in the cause, that James M. Williams, who was appointed a commissioner for the purpose, do, by proper deed with special warranty, convey the land in the proceedings mentioned, as part of the Thomas tract, with the mill thereon, to the plaintiff. And on the 19th day of September 1864 an amended decree was entered, correcting the foregoing decree as to the description of the land to be conveyed; describing it as the interest of said Eyon in the said tract of two hundred and seventy-four acres, and also directing a conveyance of his interest in a tract of twenty acres with mill thereon, which, in fact, had not. been claimed by the bill. No conveyance was ever made.

On the 5th of April 1869, Mary Ann Hill & als., infant children of Elizabeth Hill, who sue by their *next friend, Ellen H. Eyon, and Mary W. Hower-ton and Nancy Howerton being femes covert, holding separate property, who sue by their next friend, Ellen H. Lyon, whose husbands, William H. Howerton and James H. Howerton, are made defendants, and Martha Carter, daughters of said decedent, filed their bill in chancery in the circuit court of Pittsylvania county against W. W. Keen in his own right, and as executor of William Eyon, and trustee as hereinbefore described, and others, in which they allege the suit brought by said Keen in the county court, and the decree in his favor for the conveyance of title, which they are informed has never been made. They charge that said decree was made upon an alleged agreement of purchase by said Keen, and an allegation that he had paid the whole of the purchase money. They expressly charge ■ that said Keen never paid one cent of purchase money to the said Eyon in his lifetime, or to any other person at any time, and that he is largely indebted to his testator’s estate as executor; and they further charge that they were not parties to said suit. The infant children of Elizabeth Hill, by their next friend, charge that they were never made parties to said suit, and are not bound' by the decree; and they charge that there never was any contract in writing between the said William Eyon in his lifetime and the said Keen for the sale and purchase of said land.

The appellants claim the right to hold the land by virtue of that decree in favor of W. W. Keen. If the appellees were not parties to that suit as they allege, or if said decree 'was fraudulently procured, which though not expressly charged, if the facts alleged be true, is established, said decree is not binding on them, and can confer no rights upon Keen, or those who claim under him.

*There appears to have been no process against them. There is, with the papers in the cause, a paper which professes to be the answer of the defendants named. But it is not signed by either of them, or by anybody for them, and two of them, William H. and James H. Howerton, who are made defendants in this suit, swear that they never authorized any one to put in their appearance, or to answer for them, and that they did not know of the suit. And the others who are plaintiffs in this suit aver that they were not parties to that suit, and thus is the onus thrown upon the appellants, to show that they were, in order to bind them by the decree.

It should appear from the record itself that they were before the court. There is nothing to show it unless the paper referred to is their answer, and was filed as such by their agency, or at least with their knowledge and consent. That does not appear. How it got amongst the papers is not shown. It might have been put there by the plaintiff himself without their knowledge or consent. There is nothing to show that any one of them had any connection with it or any knowledge of it. Unless it was their act, or done with their consent or authority, it is not binding on them, nor shows an appearance on their behalf, or that they were before the court.

The circumstances attending the procurement of said decree tend strongly to negative any equity in the plaintiff in that suit, and are so indicative of fraud in the procurement of the decree as would disincline a court of equity to give it effect.

What were the relations of these parties? On one side they were married women, daughters of the testator, who had a life interest, and their children, who had the remainder thereof, a son of the testator, who *was not sui juris as to this property, who had a life interest, and his children who were entitled to his interest in remainder, and the infant children of a deceased daughter of the testator. On the other side was the plaintiff, who was the executor of the testator, and who was constituted trustee by the testator’s will for his said married daughters and his son and their children, who was seeking to acquire title in his own name and for his own benefit of property, which had been intrusted to him for their benefit. His relation to the widow of the testator and his children and grandchildren was a relation of confidence.

Holding this relation of confidence not long after the death of the testator, flagrante bello, he has a paper prepared, to which he obtains the signatures of the widow and her children, in which they are made to acknowledge the sale of the land in question to him by the testator in his lifetime, of which he received possession, but no conveyance, and authorizing and requesting the court to make such decree as will complete the contract and make good the title to him. This paper is dated October 9,1865, and is not addressed to any court, no suit being then pending. But armed with this paper, on the 16th of November following he institutes his said suit in the county court of Pittsylvania county, files his bill, and on the same day obtains the decree aforesaid, which, nearly a year afterwards, he has amended as hereinbefore described. He does not set out in his bill any contract of purchase; he merely alleges that he purchased the land in the lifetime of his testator, and paid the full amount of the purchase money. Nor does it appear in any part of the record of that suit, or this, what price he was to pay for the land. But it does appear now, that the ^allegation of his bill that he had paid the whole amount of purchase money was untrue, and that he had not in fact paid one dollar thereof.

If he had disclosed the truth in his bill, which, in the relation he stood to the parties, he had no right to suppress, much less to misrepresent, he must utterly have failed to have obtained the decree which was entered. It was consequently procured by a deception practised upon the court — a representation which he now virtually admits, in his answer to the bill in this suit, was not true.

There was no evidence before the court of the alleged purchase except the paper above referred to. And that is not entitled to the weight of evidence. It was, in fact, but a certificate of what they had been informed of by Keen himself; for they do not appear to have had knowledge of it themselves, and evidently relied upon his representation, and were influenced by the relation of confidence which subsisted between them to sign the paper. Surely such an acknowledgment could not divest married women of their estate in land, of which, under the statute, they can only be divested upon privy examination properly certified, and it could not divest their children of their interest, nor the infant children of Mrs. Hill, who were not parties to it.

The whole procedure, instituting the suit flagrante bello in the county court, to acquire a transfer to him of the rights of infants and married women, which he held in trust for them when their husbands were soldiers in the army, upon testimony procured through the influence of confidential relations, upon the mere allegation that he had purchased the land, without setting out the contract or the price he was to pay for it, *and upon the false allegation that he had paid the full amount of the purchase money, when, in fact, he had not paid one dollar, shows so conclusively the fraudulent procurement of said decree, that it would be rendered null and void if all the parties had been before the court, which it seems was not the case.

The court does not therefore regard said decree of the county court as interposing any barrier to the relief which the plaintiffs in this suit seek to obtain. And upon the merits, the court is of opinion that the dev-isees and legatees ate entitled to have the land in question embraced in the partition and distribution of the estate of their testator, the evidence being insufficient to establish such a contract of sale by the testator in his lifetime to W. W. Keen, and such a performance on his part as would entitle him to a decree of specific performance.

The court is further of opinion that the appellant, A. G. Walters, having purchased from one who had no valid title, cannot hold it against parties whose title is good in law and equity, and of which they have never been lawfully divested. And if the decree in favor of his grantor was invalid, he was not invested with the legal title, and his equity could not prevail over the prior equity of the appellees, upon the authority of Briscoe v. Ashby & als., 24 Gratt. 454.

The court is also of opinion that the demurrer to the plaintiff’s bill, on the ground of multifariousness, was properly overruled. Before the Code of 1849, courts of equity could pass on all equitable questions arising in cases of partition. And they may now take cognizance, under the provisions of the Code, of all questions of law affecting the legal title that may arise in such proceeding.

*The court is also of opinion that it was not error to remove W. W. Keen as trustee in this suit, as ancillary to the design and object of the suit, and to appoint another in his stead. Upon the whole, the court is of opinion that there is no error in the decree of the circuit court, and that the same be affirmed with costs.

Decree affirmed.  