
    *Beery & als. v. Irick & als.
    August Term, 1872,
    Staunton.
    Case at Bar.—In April 1857, land was sold by a commissioner, under a decree in a suit for partition, for one-third cash, and the balance in five annual payments; a lien on the land for the deferred payments being reserved; the parties entitled being the widow and several children of B. At the sale I became the purchaser, and by the decree of the court or by agreement of all the parties, I was allowed to retain one-third of the purchase money, for the life-time of the widow; he paying her the ■interest thereon annually. Separate bonds were given to the commissioner for this one-third; and I paid up the principal of his bonds for the two-thirds, and the interest on the other third, until May 1862; and he paid the interest then due, and a part of the principal of the two-thijrds. At the October term of the court, I, without giving notice, to the parties, and without their knowledge, obtained from the court, an order directing him to pay the balance of the purchase money in his hands, to B, the general receiver of the court, to be invested in State bonds. He accordingly paid the amount to E in Confederate treasury notes, and B invested the funds in State bonds; but before making his report, sold them, and invested in Confederate States bonds. The papers in the suit having been destroyed, the widow and children brought their suit in equity, against I and E to recover the fund. Held :
    1. Order—Notice.—The order having been obtained by I without notice to the parties, and without their knowledge, was null and of no effect as to them, and he is still liable for the purchase money, and the lien on the land still exists.
    2. Decree—Immediate.—The plaintiffs are entitled to an immediate decree against I; and are not to be delayed until the equities between I and E can be decided.
    3. Further Proceedings—What May Be Litigated.— The cause going back for further proceedings, I and E, or either of them, if they, or he, desire it, may litigate the question of the liability of E to I and the extent of such liability, if there be any, in this case.
    *This was a suit in equity instituted in June 1866, in the Circuit court of Rockingham county, and afterwards transferred to the Circuit court of Augusta, by Elizabeth Beery, the widow, and the children and heirs of Abram Beery, deceased, against. Andrew B. Irick, M. Harvejr Effinger, and others, to recover from Irick and Effinger a part of the purchase money of a tract of land sold in 1857, under the decree of the Circuit court of Rockingham county, in a suit by the widow and heirs of Abram Beery for partition. All the papers in that suit were destroyed during the war.
    The bill sets out the facts as to the sale and its terms. The sale was made by John C. Woodson, as commissioner under the decree of the court, in February 1857, and the land was purchased by Andrew B. Irick and Wm. G. Stephens; but Stephens relinquished the purchase to Irick. The land was sold for $12,437.08, of which one-third was to be paid at the next court succeeding the sale, which was on the 8th of May, and the residue was to be paid in five equal annual payments, dating from the 2d of May 1857. Irick paid two-thirds of the cash payment, and gave his bond, bearing interest, to the commissioner for the other third; and as to each of the deferred payments, he gave one bond for two-thirds of it, and another bond for the one-third, a lien being reserved on the land. And the bill states that it was one of the terms of the decree, that the widow should receive, during her life, interest on one-third of the purchase money of the land. The commissioner reported the sale, and his report was confirmed.
    Irick paid the principal of his bonds for the two-thirds of the purchase money, and the interest on the other third, up to May 1862; and he paid the amount due on that day to some of the heirs, and the interest due to the widow on the one-third of the purchase money. At that time the whole of one-third was due, amounting to $4,145.69, and there was due to several of the heirs *each the sum of $138.69. The bill charges that none of the money so due on the 2d of May 1862, was paid to the parties by Irick; but at the October term of the court for 1862, he, without the knowledge or consent of the widow or heirs, and without any summons to them to appear and defend their interests, obtained an order authorizing him to pay to the receiver of the court, to be invested in State bonds, the said sum of $4,145.69, and that the same was paid to the receiver in Confederate treasury notes.
    The complainants insist that the court had no authority, upon the motion of one who was no party in the cause, and without notice to them, to make the order for the payment of the money by Irick to the receiver of the court. And they pray for a decree against Irick, and any others liable therefor, for the amount due them; that the land may be sold for the unpaid purchase money, and for general relief.
    Uffinger answered the bill. He said he was in the year 1862 appointed general receiver of the Circuit court; and on the 17th of October of the same year, he received from Irick $4,269.89, which was paid by Irick and received by respondent, to the credit of the case of Beery’s heirs, then pending in the court. This payment was made under an order of the court in that cause, and was paid in Confederate treasury notes. That he made his report regularly every year to the court, showing what he had in each case in court, and how it was invested; and these reports were received and approved by the court. He, at the commencement of his duties as general receiver, made investments, to the amount of $10,000 in State bonds; but before making any report to the court he changed the investment, by selling the bonds and pur‘chasing eight per cent, bonds of the Confederate States.
    Irick, in his answer, says he purchased the land under the impression, from statements made by the commissioner, *that one-third of the purchase money could be retained by the purchaser during the life of the widow; that such were not the terms of the sale, but that it was likely such an arrangement could be made. After his purchase he sold the land to different parties, and these parties applied to him to receive the money, and he, having full confidence in the money, did receive it; and intending that fund thus received to pay his debt on the land, he applied to the court that had rendered the decree of sale, and before which all parties then were—the said suit being still pending and undetermined—and the court, after hearing a full statement of the case, made an order directing him to pay over said money to the general receiver of the court, and directed the receiver to invest it in Virginia State bonds; all of which respondent believes was done. He received the same funds that he paid over as if it had been gold, and made no profit on the money. He is advised that all the parties being before the court, and the cause still landing, no motion was necessary to take any new order in the case.
    Irick was examined as a witness by the plaintiffs. He states that the order for him to pay over to the receiver was made at the October term of the court for 1862. There was no opposition to the order that he was aware of; he never heard of any. As to the notice, he was not prepared to say whether the parties had notice or not. He gave the papers to Mr. Woodson, who he presumed would attend to it; or rather Mr. Woodson held the papers, bonds, &c., and said he would attend to the matter before the court.
    Woodson was also examined as a witness. He states the terms of the sale, and the execution of the bonds, as stated in the bill, and that a lien was reserved upon the land, and that no deed had been made to the purchasers. That the annual payments were made regularly to the heirs, and the
    interest to the widow. That *Irick generally made these payments, and took receipts which he handed to witness, and took up his bonds. That everything was regularly paid up to May 1862. He said he had no recollection of "being at the Circuit court of Rockingham, either in May or October, and had no such recollection of what was done at these courts. Of one thing he was pretty sure, that he never considered he had any control over the principal of the third set apart, upon which the interest was to be paid to the widow; or had any right to collect the same or in any way to interfere with it, or control it; and never did. Has a distinct impression that by a decree of the court, Mr. Irick was authorized to pay the same into the hands of the general receiver of the court. The cause continued on the docket until June 1864, when the papers were lost or burned.
    It was in proof by one of the heirs, that he applied to Irick in 1863, for the interest on the widow’s money, when he asked if she would take Confederate money; and witness told him she would not. This witness stated that neither the widow nor any of the heirs had notice of the purpose of Irick to pay the money into the hands of the receiver of the court, or to make any other disposition of it. Another of the heirs stated that he presented to Irick in 186S, an order from his mother for some of her interest; when Irick informed him, that he did not owe her anything; he had got an order from court and paid it over to the receiver. Witness asked him, if he had consulted Mr. Woodson on it. He told witness he had not.
    The cause came on to be heard on the 1st day of November 1867, when the court dismissed the bill, so far as it sought to charge Irick and Effinger with the sum of $4,269.89, paid by Irick to Effinger under the order of October 1862; and directed an account of the amounts to be paid by Irick to the heirs, on account of the - payment which fell due in May 1862.
    *In August 1869, General Canby, the military commander of the district, sent an order to the judge, to set aside the decree of the 1st of November 1867, and rehear the cause. And the plaintiffs having filed a petition for a rehearing of the decree, and also a bill of review, the court on the 27th of November 1869, set aside the decree, and the cause was continued until the commissioner should report on the account.
    On the 25th of November 1870, the cause came on again to be reheard, when the court held that there was no error in the decree of November 1st, 1867; and that the same was final as to the matters therein decided; and that decree was re-affirmed. And it was decreed that the decree of the 27th of November 1869, be set aside and annulled as having been improvidently made, and without authority; and that the petition for a rehearing, and the bill of review of the plaintiffs, be dismissed with costs. From this decree the plaintiffs applied to this court for an appeal; which was allowed.
    Fultz, for the appellants.
    Baldwin & Cochran, for the appellees.
    
      
      Notice.—See Purdie v. Jones, 32 Gratt. 839, and foot-note. See also, Taylor v. Lancaster, 33 Gratt. 21, where the principal case is distinguished.
    
   ANDERSON, J.

delivered the opinion of the court.

A chancery suit was brought in the Circuit court of Rockingham county, in the year 1856, by the widow and heirs of Abraham Beery, for a partition of the lands, of which he died seized. The record of the suit has been lost or destroyed, or burned up, with the other records of the court, and we have only secondary evidence of what was done. There was a decree for the sale of the land, and the sale was made in February 1857, by John C. Woodson, who was appointed a commissioner for the purpose; which sale was reported to and confirmed by the court. The terms of the sale were, one-third down, and the residue in five equal annual instalments. A. B. Irick, the appellee, in connection *with one Stevens, whom he afterwards bought out, was the purchaser, at the price of $12,437.08.

This suit was brought by the widow and heirs, to recover what is still due them of that fund, and to subject the land to its payment.

The original suit having been brought for partition by sale, it was one -of the first duties of the court to determine what should be the widow’s share in the proceeds. That was precedent to a partition among the heirs. They allege, and the commissioner proves, that one of the terms of the decree was, that one-third of the purchase money should be set apart, the interest on which should be paid annually to the widow, during her life, in lieu of dower; a disposition which seemed to be satisfactory to all parties concerned.

Accordingly an agreement seems to have been made between the widow and heirs and the purchaser, with the sanction of the commissioner, that he should pay the two-thirds of the cash payment, and of the deferred payments, to-the heirs, as they were respectively due, and retain in his own hands the remaining one third; and to pajr interest thereon annually to the widow, during her life; the same to be secured, together with the deferred payments to the heirs, by a lien upon the land. Irick in his answer saj^s, that he purchased at the sale, “under the impression, and from statements made by the commissioner, that one-third of the purchase money could be retained during the life of the widow; that such were not the terms of the sale, but that it was likely such an arrangement could be made.’’ And it seems that such an arrangement was made. The down pajonent with interest, from the date of sale to the 8th of May 1857, when it was payable, amounted to $4,203.73. Of this sum, he paid only two-thirds—the part coming to the heirs; and for the remaining third, gave his bond, the interest on which the widow was entitled to. For each of the deferred payments he gave two bonds, one *for $1,105.52 for the heirs; and the other for $552.76, on which interest was to be paid annually to the widow. And it appears that he paid up regularly to the heirs their portion, as the bonds fell due, and the interest annually, to the widow until May 1862, upon the bonds set apart as a fund for her. Commissioner Woodson proves, that Irick generally made payment to the heirs, took their receipts and the widow’s receipt for the interest, which he brought to him, and took up the bonds, and was credited for the interest paid to the widow. He also testified that he never considered that he had any control of the principal of the part set apart for the widow, “or that he had any right to collect the same, or in any way to interfere with it or control it, and never did. ’ ’ Why would he not have had the right to collect it, if there had not been an agreement, as is alleged, as to the investment; or a decree to that effect?

The court is of opinion, from the adjustment made by the commissioner, and the widow and heirs, with the purchaser; from the subsequent acts of the parties, and from the testimony of the commissioner, that it was mutually agreed by them all, or so provided by the decree, that one-third of the purchase money should remain in the hands of the purchaser, during the life of the widow, as an invested fund, secured by a Hen upon the land, the interest on which was to be paid to her annually, in lieu of dower.

It appears from the record, that all parties were satisfied with this arrangement, and that no change was desired, until October 1862. The circulating medium had then become greatly inflated, by the liberal issue of Confederate treasury notes, and had become greatly depreciated, rating at 2for 1 in relation to gold as the standard. It was then that Mr. Irick conceived the idea of relieving himself of this indebtedness, by discharging his obligations in this depreciated currency.

He did not propose it to the widow or heirs, the only’ ^persons besides himself who were interested, to whom he had been making the payments theretofore ; and with whom his agreement to retain the fund had been made. They had the right to receive it, if they were all willing and were sui juris. Nor did he apply to Commissioner Woodson to receive it. It seems that Woodson was authorized to collect the other bonds, and the interest on the widow’s fund, and needed no further order of court to confer on him that authority. Why could he not in like manner collect the other bonds for the purchase money, which had not hitherto been collected, but only the interest annually for the widow, if there had been no agreement or provision of the decree, inhibiting their collection, and placing them on a different footing from the other bonds? The fact that the appellee deemed it necessary to apply to the court for an order, shows that he did not consider that he had a right to pay it without such order, and consequently was restricted in his right to pay, by his agreement with the other parties, or by a provision in the decree. He does not pretend that he applied to the commissioner to receive payment. But he says that he paid the fund to the receiver of the court, under an order of the court. He does not seem to have thought that he could pay it to the commissioner who was authorized to receive payment of the other bonds, and of the interest for the widow; but says in his deposition, “I gave the papers to Mr. Wood-son, whom I presumed would attend to it; or rather Mr. Woodson had the papers, bonds, &c., and said (he does not now presume) he would attend to the matter before the court.” But Mr. Woodson does not seem to recollect any thing about it. He says he has no recollection of being at the Circuit court for Rockingham, either in May or October 1862; and has no recollection of what was done at those courts. And Henry C. Beery testifies, that he asked Mr. Irick, whether he had consulted Mr. Wood-son on it, and he told him that he had not. It *may have been the impression of Mr. Irick, that he had applied to Mr. Woodson to attend to getting the order for him; but he seems not to have had a distinct recollection when he gave his deposition ; and the other evidence shows that he was probably mistaken. It is very evident that the motion in court was not made by Mr. Woodson. By whom it was made does not appear. It is not material in the decision of the cause to know; but in some aspects of the cause, it might have been to the advantage of Mr. Irick to have shown.

But of this there is no doubt, that the motion was made without notice to the widow and heirs; and that the order directing him to pay the money into the hands of the receiver of the court, was made not only without their consent, but without their knowledge. The widow seems to have known nothing of it in May 1863. She then sent to him for her interest. When asked for it by her agent, he inquired of him if he would receive Confederate money. Being answered in the negative, he did not even then inform him that he had paid the principal and interest to the receiver of the court, under its order, but suffered him to leave him under the impression, from what he said, that he still held the fund. And the widow and some of the heirs seem not to have been better informed (and it does not appear that any of them were), until after the termination of the war. There may have been no design on the part of the appellee to conceal the fact from the widow and heirs. And his withholding it from the agent of the widow, when he ought to have known that he was ignorant of it, may have been from want of reflection, and not from a design to withhold from the widow and heirs information which might lead to the institution of proceedings to undo what had been done. The court would be slow to believe that the order of court had been surreptitiously obtained; yet they' cannot be blind to the proofs in the cause, which look that way, though not deemed sufficient *to justify the imputation. But it is evident that the appellee obtained the order upon an ex parte motion, without the consent or knowledge of the widow and heirs, and without notice to them; and that they had no opportunity to resist the motion, which they doubtless would have done, and successfully, if they had had notice of it.

The court is of opinion, whether the investment of the widow’s fund, as stated, was made by the decree of the court, or by the agreement of the parties, that no subsequent order upon the motion of the debtor, who was not a party to the suit, changing that investment, is binding upon the widow and heirs, unless made by their consent, or upon notice to them. Upon one hypothesis it was to set aside a decree of the court; upon the other, it was to rescind an agreement—neither of which could be done on motion without notice.

The court is, therefore, of opinion that the order of the court authorizing the debtor, on his motion, to change the investment of the widow’s fund and to pay it to the receiver of the court, being made without the consent of the widow and heirs, or notice to them, is not binding on them and cannot discharge the appellee from his obligations, or release the land from'the vend- or’s lien.

The court is further of opinion that the payment made by the appellee to the receiver, being under an order of court which is null and void as to the widow and heirs, the relation of the debtor to them is as if such payment had not been made; and their right of action to have and demand the same of their debtor is direct and immediate, and no question as to the liability of the receiver can be interposed to impede its assertion. The liability of the receiver, or the extent of his liability, are questions between him and A. B. Irick; and do not concern the appellants. But whilst this is so, the receiver, having been made a party to this suit, if he is liable to Irick, *the latter might have had a decree over against him, if he had asked it. But the court below has not passed upon the question of the receiver’s liability to Irick, and has not been asked to do so. It would seem to be most proper, therefore, that this court, which has only appellate jurisdiction—though in a proper case it might do so—should not undertake, primarily in the state of the pleadings in this case, to decide upon their reciprocal rights and liabilities; but the parties should be allowed, when the cause goes back to the lower court, to litigate those matters, if they think proper, before that court, that the respective rights and liabilities of the said parties as to each other may be settled and determined in this suit.

The court is of opinion that so much of the decree of the Circuit court, of November 23, 1867, as dismissed the plaintiffs’ bill, so far as it seeks to charge A. B. Irick and M. H. Effinger with liability for the sum of $4,269.89, paid by the said Irick under the decree of October 1862, to the receiver and invested by him in Confederate States bonds, is erroneous, and that the Circuit court did not err in granting the plaintiffs leave to file their bill of review.

And the court is further of opinion, for reasons already stated, that the decree of the 25th of November 1870, is erroneous in re-affirming the decree of November 23d, 1867, and in dismissing the bill of review; and that the same, as also the decree of the 23d of November 1867, so far as it dismisses the bill against Irick and Effinger, must-be reversed.

The decree was as follows:

The court is of opinion, for reasons stated in writing and filed with the record, that the order of court of October 1862, authorizing A. B. Irick to pay to the receiver of the court the fund in his hands, which had been set apart for the widow of Abraham Beery during her life, *upon which she was to receive the interest annually, in lieu of dower, was not binding on the widow and heirs, but was null and void as to them; and that the payment made by the said Irick to the receiver of the court, under said order, does not discharge his obligation to the widow and heirs, or release the land from the vendor’s lien; and that the appellants are entitled to a decree against the said Irick for the principal of said bonds which had been set apart for the widow, to be safely invested by the court during the lifetime of the widow: and that she is also entitled to a decree against him for the interest which is in arrear and unpaid upon said bonds, subjecting the land to the payment of both principal and interest with a proviso, that if the said Irick shall pay up the interest due and in arrear to the widow in a reasonable time, to be designated by the Circuit court, and shall pay the balance which the said court may ascertain to be due on the bonds, which were set apart for the heirs, and shall execute his bond for the principal sum which was set apart as a fund for the lifetime of the widow, and punctually pay the interest accruing thereon annuallj’-, to the widow during her life, then and in that case the execution of said decree requiring the' payment of the principal sum aforesaid sét apart for the widow, shall be suspended during her life and for six months after her death, but shall be a charge upon the whole land, for which the said debt, as a part of the purchase money, was originally, contracted by the said Irick.-

It is, therefore, decreed and ordered by the court, that the decree of November 23, 1867, so'far as it dismisses the plaintiffs’ bill against Irick and Effinger, and the decree of November 25, 1870, re-affirming said decree and dismissing the plaintiffs’ bill of review, be reversed and annulled; and that the appellee, Irick, pay to the appellants their costs expended in the prosecution of their appeal here. And the cause is remanded to the Circuit court of Augusta county, to-be proceeded with in conformity *to the principles of this decree; in which proceedings the said Irick and Effinger, or either of them, if they, or he, desire it, may litigate the question of liability of the latter to the former, and the extent of such liability, if there be any, to be settled and determined by the said Circuit court, and to be decreed accordingly. Which is ordered to be certified to the said Circuit court of Augusta county.  