record ho. 2313. - washington and lee university

Record Ho. 2313. - In the -

Supreme Court of Appeals of Virginia At Richmond

LANDOK LffWRY, Reeciver ol' Bedford County Bank, Appellant

vs.

BETTTE P. XOELL, in her own right and as AdministratrL"'\:, et als, Appellees

I t I I I I • I

FROM '.rHE CmcuT.r CoURT OF BEDFORD CouNTY, Vmornu.

RULE 14

,r5. N UM.BER OF Co PIES TO BE FrLED AND DELIVERED TO 0PPOS·

mo CouNSEL. Twenty copies of each brief shall be filed with the clerk of the court, and at least two copies mailed or delivered to opposing counsel on or before the day on which the brief is filed. 1[6. SIZE AND TYPE. Briefs shall be printed in type not less in size than small pica. and shall be nine inches in length and six inches in width, so as to conform in dimensions to the printed records. The record number of the case shall be printed on all briefs.

The foregoing is printed in small pica type for the information of counsel.

M. B. WATTS, Clerk.

Job11, A.. Cook. Prillta'. W)'t:benlle. Va.

- SUBJECT INDEX TO PETITION -

Side Page

]"'ore,vard ......................................... . Statement of the proceedings ....................... . 'l,he errors comp ained of .......................... . The questions involved ...... · ....................... . Tl1e facts ......................................... . Argu111e11t ........................................ .

I. The demurrer should have been overruled .... . A. Real estate of decedent subject to his debts

for one year from his death ............... . B. Rights of decedent's creditors in real estate

unaffected by partition suit and sale solely by heirs wilhh1 year ........................ .

II. The a11swers should have been stricken out ... . III. The trial Court's opinion .................. .

IV. The commissioner's report .................. . Conclusion ........................................ . (~ertificate ........................................ .

TABLE OF CITATIONS

Cases Cited :

8*

10* 19* 23* 25* 26* 27*

Bridges Y. Snead, 151 Va. 383, 145 S. E. 338, 340 (1928) 13,17* Carpenter v. Gray, 113 Va. 518, 75 S. E. 300, 38'3 {1912) 21 * C. & 0. Ry. Co. v. ,valker, 100 Va. 69, 40 S. E. 633

(1902) ....................................... 20, 21 * Green v. Brown, 146 Ind. 1, 44 N. E. 805 (1896) . . . . . . . . 17* Heeke v. Allen, 127 Va. 65, 102 S. E. 655 (1920) . . . . . . 8,rn* Helmick v. Kraft, 84 vV. Va. 159, 99 S. E. 325 ( 1919) 17, 18* Hid en v. l\fahanes, 119 Va. 116, 89 S. K 122 ( 1916) . . . . 21 * Ho'ley v. "Wbite, 172 N. C. 77, 89 S. E. 1061 {1916) . . 16, 18* Klosterman v. Klosterman, 58 Ohio App. 511, 16 N. E.

(2d) 826 (1938) . . . . . . . . . . . . . . . . . .. . . . .. .. . . . . . . 17* Marion etc. Lbr. Co. v. Tilghman Lbr. Co., 84 S. C. 505,

66 S. E. 124 (19{)9) . .. . . . . .. .. . . . . . . . . . . . . . . .. . . . 16* Martin v. M:artin, 95 Va. 26, 27 S. E. 810 (1897) . . . . . . 13;\' Pace v. Shields Geii:;c Lhr. Co., 147 Ga. 36, 92 S. K 755

(l~J117) .......................... ·..... . . . . . . . . . \16* Patterson v. Patterson, 144 Va. 113, 131 S. E. 220 (1926) 22·x.

Pierce v. Graham, 85 Va. 227, 7 S. E. 189 (1888) . . . . . . . . 10* Powers v. Sutherland, 157 Va. 336, 160 S. K 57 (1931) . . 25* Rippe v. vVeiters, 96 Kan. 738, 153 Pac. 536 (1915) .. 16, 22* Smith v. Plaster, 151 Va. 252144 S. E. 417, 422 (1928) . . 21 * Steffey v. King, 125 Va. 120, 101 S. E. 62, 63 (1919) . . 21* Stevens v. :McCormick, 90 Va. 735, 19 S. E. 742 (1894)

13, 17, 19' .. Trimmier v. vVinsmith, 41 S. C. 109, 19 S. E. 283 (189'4) 15* United States v. Minor, 235 Fed. 101 (C. C. A. 4th, 1916) 14'*' ·weakley v. Conradt, 56 Ind. 439 (1877) . . . . . . . . . . . . . . 15*

Code Sections Cited:

Va. Code ( Michie 1930). Section 5279 . . . . . . . . . . . . . . . . 23* Idem., Section 5281 .................................. 23* Idem, Section 5395 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8* Idem, Section 5397 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8':('

Secondary authorities cited:

(1937) 10 Am. Jur., title: Estoppel, Section 91, page 749 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21:i.

(1.929) 47 C. J., page 567, Section 805 . . . . . . . . . . . . . . . . . . 14* 2 Harrison on Wills and Administration ( 1927), page

928, Section 586 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19~' Lile's Equity Pleading & Practice (2d ed., 1922), page

192, Section 38~ . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . rn~ (1917) R. C. L., page 840 Section 314 . . . . . . . . . . . . . . . . . 18*='

IN THE

juprtmt tiourt of Jpptals of ~irgiuia

At Richmond

. Record No. 2313

LANDON LOWRY, Receiver of the Bedford County Bank, Incorporated, Appellant

vs.

BETTIE P. NOELL, in her own right and as Administratrix of Estate of R. C. Noell, deceased; MARCH NO_ELL, JACK NOELL, PETER NOELL, EMMITT NOELL, JEWEL NOELL LUQK, BEE NOELL, OBERA NOELL GARRETT, WOODROW NOELL, IRIS NOELL, DOCTOR NOELL, J. K. NOELL, and LOUISE NOELL, children and Heirs at Law of R. C. Noell, deceased; R. B. ARRINGTON; CHARLESTON NATIONAL BANK, the successor to the Union Trust Company, a corporation; and THE GREENBRIER JOINT

STOCK LAND BANK of Lewisburg, West Virginia, Appellees.

PETITION

To the Honorable "nstices of the 811,prem.e Court of Appeals of Virginia:

Your petitioner, Landon Lowry, Receiver of the Bedford County Bank, Incorporated, would respectfully show un-

2 Supreme Court of Appeals of Virginia

to the Court that he is aggrieved by a certain final decree of the Circuit Court of Bedford County, Virginia, entered on the 4th day of January, 1940, in a certain suit in chancery, wherein your petitioner was the complainant and Bettie P. Noell, in her own right, and as Administratrix of the Estate of R. C. Noell, deceased ; March Noell, Jack Noell, Peter Noell, Emmitt Noell, Jewel Noell Luck, Bee Noell, Obera Noell Garrett, Woodrow Noell, Iris Noell, Doctor Noell, J. K. Noell, and Louise Noell, children and heirs at law of R. C. Noell, deceased ; R. B. Arrington ; Charleston National Bank, the successor

to the Union Trust Company, a Corporation; and the 2* Greenbrier Joint Stock Land Bank of Lewisburg, *'vVest

Virginia were the defendants. The Circuit Court of Bedford County by its said decree decided that your petitioner had no right as a creditor of one R. C. Noell, deceased, to maintain a suit to subject the deceased debtor's real estate to the payment of a debt due your petitioner because said land had theretofore been sold by court order within less than three months of Noell's death in a partition ~uit conducted for that purpose solely by Noell's heirs at law, Noell's creditors being omitted from the partition suit.

Your petitioner submits a certified tianscript of the record showing the errors of which he complains.

In accordance with Rule 9 ( 4) of this Court, counsel for petitioner certifies that he has on May 2, 1940, mailed a true and correct copy of this petition to W. R. Saunders, opposing counsel, and mailed a true and correct copy to Hunter Miller, guardian ad litem, and likewise in accordance with said rule, counsel does hereby state that this petition is to be filed with the Honorable Herbert B. Gregory of Roanoke, a member of the Supreme Court of Appeals of Virginia. Counsel for petitioner further states that if the appeal herein prayed for is awarded, he will re~y upon this petition as his opening brief in this case.

STATEMENT OF THE PROCEEDINGS

On November 3, 19'34, your petitioner as a creditor of one R. C. Noell, deceased, filed his bill (R 1) in chancery in the Clerk's Office of the Circuit Court of Bedford County for the purpose of having- a tract of 157,%1 acres of land owned by Noell in Bedford County at the time of his death on December

Lowry, Receiver, etc. vs. Noell, et als. 3

31, 1933, sold, and the proceeds of said sale · applied to the debts of the said Noell. Noell's widow and administratrix, his twelve children and heirs at law, one R. B. Arrington, a

brother-in-law of Noell, who had purchased the land in a 3* partition suit *after Noell's death and the trustee and

beneficiary under a deed of trust placed upon said land by Noell in his lifetime, were made defendants to the bill.

On December 19, 1934, eight of Noell's adult children and their uncle, the defendant, Arrington, filed a joint demurrer and answer (R. 15) to the bill of complaint. On December 19, 1934, Bettie P. Noell, the widow and administratrix filed her separate demurrer and answer (R. 15) to said bill. Each answer sets up the defense of estoppel as will appear more fully hereinafter.

No further proceedings appear to have been had in this cause until July 30, 1939, on which day an order of reference (R. 19) was entered by the Court ref erring the case to Aubrey E. Strode, Jr., a Commissioner in Chancery, to take, state and report '' an account showing, from an examination of the original Tecords in the suit of Noell, March, et als., vs. Noell's Adm'x. et als, errors, if any, committed in the said suit of Noell, March, et als., v Noell's Adm 'x. et als.,,.and the effect of such errors, if any, upon the suit of Landon Lowry, Receiver, vs. Noell, Bettie P., et als.," and any other account requested by any party to the suit or deemed pertinent by the commissioner. (The suit of Noell, March, et a.ls., v. Noell's Adm'x., et .als, was the partition suit mentioned above, and the entire record of said suit is incorporated in the record in the case at bar (R. 56) by order of the Trial Court (R. 54). )

On Aug-ust 11, 19'39, the commissioner filed his report (R. 33) consisting of an opinion as to the law of the case as heard upon demurrer and then upon bill and ansv{er.

Your petitioner excepted to the commissioner's report insofar as if reported favorably the plea of estoppel as set forth in defendant's answer. (R. 33)

4* On January 4, 1940, the Court entered the final decree (R. 52) complained of, deciding the case on bill and

answer adversely to your petitioner on the grounds of estoppel, the de1nurrer never having been passed upon by the Trial Court. (R. 53)


THE ERRORS COMPLAINED OF

(1.) The trial court erred in not ruling upon the demurrers and more particularly, should have oyerruled them.

( 2.) The trial court erred in sustaining the answers and dismissing petitioner's suit, but should have stricken out said answers as insufficient in law and directed that the case be proceeded with.

THE QUESTIONS INVOLVED

(1.) Do the creditors of a decedent have the right to subject his real es~te to the payment of their debts within a year from his death?

(2.) Assuming such a right to exist, can those creditors be deprived of that right by the decedent's heirs by means of a partition suit, to which they, with the Administratrix, are the sole parties, and in which no accounts are taken, no order of reference made, and none of the creditors representecl, or considered, the sale being held within four months of decedent's death and the property being bought at the sale by the widow's brother who knows both of the debts and the insuffi. ciency of the personal estate to pay them?

5* *These first two questions are the issues raised by the demurrers.

(3.) Is the complaining creditor estopped by his knowledge of the suit and sale and his failure to intervene therein by way of petition!

This question is the separate issue presented by the answers.

THE FACTS

On December 31, 1933, one R. C. Noell died intestate, seised and possessed of a fa.rm of 157% acres near Mo.ntvale, in Bedford County. Noell had mortgaged the farm for $2,-00:J.00, upon which debt a balance of around $1,892.02 remained unpaid. He also owed unsecured debts among which was


a debt due the Bedford County Bank, Incorporated, of Montvale. (R. 1, 2, 4)

Noell left, as his heirs at law, a widow and twelve children, among whom w·ere Bee Noell, an adult son, and Woodrow Noell, an infant son of some twenty years; (R. 1, 59)

Bettie P. Noell, the widow, and her brother, the defendant, R. B. Arrington, discussed, with your petitioner in his capacity as attorney-at-law, the indebtedness of the estate of R. C. N oeli to the Bedford County Bank, Incorporated, and acting upon your petitioner's advice qualified as administratrix of the estate on January 8, 1934. The said Bettie P. Noell stated at that time in the presence of the said Arrington that the personal estate of R. C. Noell was entirely inadequate to pay off his debts, and particularly the debt due your petitioner as Receiver of -the Bedford County Bank, Incorporated. (R. 11, 12)

On February 2, 1934, Bee Noell and other of the Noell 6* *children instituted. a partition suit, naming Woodrow

Noell, the remaining Noell children, the widow and administratrix, as defendants, and, a1leging that the properiy was not divisible in kind, prayed a sale and a distribution of the. proceeds. The bill alleged there were no liens on the property save the mortgage debt, and that the personal property would probably pay all the debts of the estate, except for the deed of trust debt. (R. 56) ·

The ans,ver of the widow and administratrix stated that she did not believe the personal estate would be sufficient to pay the debts, and joined in the prayer of the hill. (R. 59)

The land was ordered sold, and at the sale it was bought for $2,150.00, by one R. B. Arringfon, the widow's brother, ivho knew of the debt due the Bedford Co1mty Bank, Inc., and that the esta.te was insolvent. Part of the purchase money was represented by an assumption of the deed of trust debt, and the balance paid in cash, amounting to only enough to pay the costs of the suit and certain delinquent taxes. (R. 65) By decree of l\farch 2, 1934, the sale was· confirmed. (R. 64) The commissioner and Arrington and lvife then conveyed the property to Woodrow Noell and Bee Noell, who also knew the facts as to their father's insolvency and the existence of the debt due the Bedford County Bank. (R. 10, 11)

6 -· Supreme Court of Appeals of Virginia

An examination of the record reveals that:

(1) None of R. C. Noell's creditors were made parties to the suit;

(2) No accounts were taken, or directed to be taken therein;

(3) No order of reference was made;

( 4) The administratrix was not required to furn1sh and did not furnish, a statement- of any of the R. C. Noell debts, nor has she ever settled her accounts:

7* *On March 31, 1934, the Receiver recovered judgment _ against the administratrix for his debt in the principal

sum of $570.00. (R. 2)

On November 3, 1934, a general creditor's suit was instituted by him, alleging the facts recited above and praying that the property be sold, subject to the deed of trust debt, the proceeds applied to the payment of ~. C. Noell's other debts, the administratrix be required to settle her accounts, and the previous proceedings be voided with respect to the creditors of R. C. Noell. (R. 1)

To this bill, the various Noells demurred, and also asserted in their answers that the Receiver was '' estopped from the bringing of this suit as all questions involved in the suit brought by Landon Lowry, Receiver could have been properly adjudicated and decided in the suit brought by March Noell and Others, which suit is now pending in this Court and the said Landon Lowry could have intervened in said suit by virtue of Section 5281 of the Code of Virginia, and your Respondents .aver and charge that the said Landon Lowry, Re· ceiver had full knowledge of said suit and the sale of said tract of land. '' ( R. 15, 18)

ARGUMENT

Inasmuch as the first two issues arise upon demurrer, they will, of course, be dismissed apart from the question of the Receiver's alleg·ed knowledge of the partition proceedings and as if he were without that lmowldegc.

Lowry, Receiver, etc. vs. Noell, et als. 7.

The third issue arising upon defendant's claim of estoppel by virtue of the receiver's knowledge of the institution of and the course of jhe partition proceedings will then be treat

ed separately for the purpose of determining whether 8* the *result otherwise to follow should he changed by that

factor.

I. The Demurrer Should Have Been Overruled.

A. Real estate of decedent subject to his debts for one year from his death.

Do the creditors of a decedent have the right to subject his real estate to the patymen-t _of their debts within, one year fro-m.. his death?

Real estate of a decedent is expressly made subject to the payment of his debts by virtue of Section 5395 of the Code.

In addition to that fact, Section 5397 of the Code provides:

'' Any heir or devisee who shall sell and convey any real estate, which by this Chapter is made assets, shall be liable to those entitled to be paid out of the said assets, for the value thereof, with interest; in such case, the estate conveyed shall not be liable if the conveyance was bona fide, and at the time of such conveyance no suit shall have been commenced for the administration of the said assets nor any reports have been 'filed as aforesaid of the debts and demands of those entitled. Bu.t no alienation of su,ch estate, niade ·by an heir or devisee, within one year after the death of the testator or in.testate, shaU be 1)alid against creditors of such testator or intestate, although n.o such sitit shall huve been co·1n11ienced or revort of debts and den1,ands filed within said year.''

This section. giving creditors of a decedent one year from the debtor's death within which to proceed against his real estate, even as against bona fide purchasers from the heirs, is construed to confer a quasi-lien upon the real estate in favor of those creditors. Hecke v. Ar en, 127 Va. 65, 102 S. E. 655 {1920)


Quoting from the opinion of Judge Martin P. Burks in that case (127 Va. at p. 70):

'' This proviso ( the last sentence of Section 5397, 9* not added till the Code of 1887) was *added manifest

ly in the interest of the creditor of the decedent, and gave him a qu,a.si lien on the real estate of the decedent for a period of one year. Nothing the heir or devisee could do within the year could relieve the real estate of the decedent from liability for his debts, and the statute was notice to the world of this fact. So that during this period of one year there could be no such thing as a purchase from the heir or devisee without notice.''

It will be observed that the bona /ides of the purchaser is immaterial if the alienation to him was made within a year of the decedent's death, although it affords a defense if the alenation occurred after the year has passed.

We call to the Court's attention the fact that in the case at bar:

(1) The land was sold within the one year period, in fact, less than three months after the death of the debtor, and suit was instituted by the creditor-complainant within the one year period also ;

(2) The land was sold in a partition suit instituted and conducted and participated in solely by the heirs cmd widow of R. C. Noell, the debtor, in the teeth of the statute providing that '' no alien,ation'' by the heirs should be valid as against creditors of the decedent;

(3) Not only all parties to the suit and the purchaser, R. B. Arrington, were charged with notice of the quasi-lien of the R. C. Noell creditors under the statute. but they all had actual knou;led.qe of the R. C. Noell debts and the insitf/iciency of the personalty to pay those debts;

( 4) Even now the land is in the hands of two of the R. C. Noell heirs, who were parties to the original l)artition suit, and aside from that fact, charged with notice of the debts un

der the statute, and who were, lately, possessed of 10* actual *knowledge of their ancestor's debts and the neces

sity of the real estate being applied thereto, this knowl-


edge existing on their part before the sale and even unto the pi·esent time.

In passing, it is only fitting that we should call to the Court's attention the fact that before the enactment of the latter part of Section 5397 of the present Code in the year 1887, creditors of the decedent had no quasi-lien upon his real estate and no in rem rig·hts in the property as .against purchasers from the heirs. Pierce v. Grah(l!ln, .85 Va. 227, 235, 7 S. E. 189 (1888).

See Ileeke v. Allen, 127 Va. 65, at p. 7.0.

That is no longer the law.

B. Rights of decedent's creditors vn, real estate ii·naffected by partition sidt and sale solely by heirs within year.

It has been noted that we are dealing with this question on demurrer. Accordingly, aU allegations of the bill are admitted and no new matter to be introduced. More particularly, as to this feature of the case, it cannot be assumed that the creditors ]me,,r of the partition proceedings and the sale therein, lmt on demurrer it must be assumed that those creditors did not knov{ of the partition suit or sale. Knowledge on the creditors part is pertinent only on the question of estoppel and will be discussed in that connection in subdivision II of this argument.

(1) Conceded facts.

The precise question here discussed seems to be one of first impression in Virginia, although it has arisen in other

jurisdictions. A recital of certain facts not open to 11 * *controversy may be helpful:

(a) Before the sale, the Noell heirs owned, as heirs, an equity in certain real estate subject, first, to taxes for 19·31, 1932, and 1933, and secondly, to a mortgage;

(b) Under Section 5397 of the Code, they were each responsible to their father's general creditors if they alienated t1ie land without paying the debts, mid the land .was liable for at least a period of one year in the hands of any purchaser


from them,, regardless of his good faith and his want of knowledge or actual notice of the R C. Noell debts;

( c) That equity is still owned, not by all of their heirs, but by two of them, who by a friendly proceeding instituted and conducted by common counsel for them, have .acquired all the other heirs' interests therein, biit the land is still in the hands of he·i·,~s of R. C. Noell and la·nd in the hands of heirs has been held liable in Virginia for their a·ricestor's debts not merely since 1887, bid since 1849. (See Heeke v. Allen, supra)

( d) And ag-ain, if the h~irs had a sufficiently substantial interest to maintain a partition suit for the purpose of dividing and distributing that interest, assuredly the creditors, whose interest is admittedly superior to that of the heirs, should be 'first heard, considered and protected. It is acknowledged this was not done. Then it is not fair to conclude that the heirs alone are affected by what w.as done?

( e) And lastly, observing what was actual1y done, the heirs have, if defendants are right, "bought" the creditors superior interest in the real estate without the creditors consent and without legal notice to them by paying the nominal purchase price of the expenses of their friendly partition suit. This the Court papers show.

12* * (2) The creditors should have been made parties formal1y or informally.

And now having recourse to g·eneral principles, it is too well settled to require the citation of authorities that the rights of one not a party to a suit at least by representation, a.re not determined hv the suit or the orders or decrees therem. Before a man ca.~1 be divested of his rights he must be afforded a reasonable opportunity to be heard. Fundamental requirements of due process necessitate this.

Defendants, by their demurrer, w·ould deny that right to this complaint and to the other creditors of R. C. N ocll, deceased, although those creditors have definite in reni rights, quasi-liens, conferred by the statutes of Virginia, which declare unconditionally that those rights can be exercised within one ye.a.r, any efforts l1y the heirs to alienate the property, to the contrary notwithstandii~g.

Partition is but the division of property among a number of persons who own it. jointly. It ran l1c accomplished either


by deed of partition by the co-owners or by a partition suit among the co-owners. The interest in the res or property to be divided of a co-owner who is not party to the deed is unaffected by it. Likewise, we take ~t, the interest of the coowner of the res, a co-parcener, would undoubtedly be unaffected if he were not made .a party to the partition suit, and this although the whole of th~ property were offered for sale under order of court and paid for by the purchaser, who, before confirmation of the sale, would have his opportunity to investigate the title for his ow·n protection.

The interests of creditors of the ancestor is admittedly superior to the interest of the co-owner heirs.

Then should not these creditors l)e made parties to the 13')!: *suit, whether formal parties by process or informal

parties by order of r~f erence? Dean Lile, discussing the question of the proper parties to a partition suit, has this to say (LILE EQUITY PLEADING AND P:a,ACTICE (2nd ed. 1922), p. 192, Section 383) :

'' Section 383. Sale for part-it ion-parties, contin~ed-lienors.-\iVhere, because of inconvenience or impossibility of making· partition in kind, the estate is to be sold, the question of parties becomes more important., for courts of equity are averse in any case to selling real property otherwise than free of liens; and in order that there may be a sale free of liens, all lienors must become parties to the suit. Such lienors should therefore be made parties to the bill, or otherwise be brought into the suit-as by rule, or voluntary petition, or under an order of reference to a master-before the decree of sa 1e." See also Bridge v. Snead, 151 Va. 383, 145 S. E. 338, 340 (1928).

It will be recalled that the statutes of Virginia confer the status of lien creditors upon unRec~m·ed cl'eclitors of a deced~nt for a period of one year from the time of his death. (See ante pag·e 8).

We are not unmindful of the familiar rule that lien creditors are unnecessary parties to a suit for partition where partition in kind rather than a sale in the partition proceedings is contemplated. Of course, lieuors are unnecessary par· ties there, since they are unaffected by the proceedings, or if


the lien be upon an undivided interest, it is transferred to the share allotted to the co-tenant owing the debt secured.

:Martin v. Martin, 95 Va. 26, 27 S. E. 810 (1897)

Nor as a matter of fact are they necessary parties to a suit in which a sale is contemplated, but their interests are unaffected if not made parties to the proceedings.

Stevens v. McCormick, 90Va. 735, 19 S. E. 742 (1894)

On principle, the creditors -should not he deprived of their rights by a suit in which they had no voice. They

14 * should *have been made parties to the suit, either formally or informally. Neither was done. What was the

leg·al effect of this omission, both as to the rights of the creditors and the ti tlc of the purchaser?

(3) Purchaser at sale in partition suit among heirs takes subject to ancestor's debts.

We quote first from the familiar authority of CORPUS iURIS ( (1929 47 C. J., page 567, Section 805), the title being Partition:

"Section 805 f. Part-icular Claims, Liens, and Encum.brmices-(1) Debts of Decedent. ·where the land descends directly to the heirs of a deceased owner, subject to his debts, a purchaser ~ta partition sale of such land takes subject to claims of general creditors of the decedent that cannot be satisfied out of decedent's personality. Under statutes preserving a lien of claims against a decedent on his land for a specified period, a partition purchaser buying before expiration of the specified period takes subject to such claims. A partition purchaser under decree rendered at proceeding·s to which neither the representatives nor creditors of a deceased owner "'."ere parties ordinarily takes sub.dect to outstanding judg111ents against the decedent.''

The case of United States v. Minor, 235 Fed. 101 ( C. C. A. 4th, 1916) is in point. The court held in that case that a sale of la.nd confirmed by the co11,rt in partition proceedinlJS inst-itided by hefrs of the property 1ws, in effect, a. sale by the heirs and b-ind-ing itl)on them, alone when -nwde before the statutory


period ,in favor of creditors had run, and that such sale could not affect the rights of the United States as a holder of valid judgment liens upon the land. Said the court (235 i,·ed. at 103):

'' ,vard died intestate in 1900. A~hninistration of his estat~ was not granted until :March 26, 1912.

15'1.c *Before administration, on November 20, 1909, the heirs of Ward instituted proceedings for partition, under which the land was sold to M. J. Wrenn for $2,018. The sale was confirmed by order of the state court May 2iJ, 1910, and conveyance made to the purchaser May 23, 1910. This sale u1·as binding only 011, the heirs of TVa.rd, as they were the only parties to the proceeding. It wa,s in effect a conveyance made by the heirs, and not Jt.a.vin.g been m.ade two years after the adniinistrati9n, it could not a,ffect the rights of the United States as the holder of valid j'll,dgment liens 011, the land. Renan v. Bank, 83 N. C. 485; Davis v. Perry, 96 N. C. 260, 1 S. E. 610; Camp Mfg. Co. v. Divenna-n, 128 N. C. 52, 38 S. JD. 27."

Identical in principle as to the basis of its holding is TV eakly v. Conradt, 56 Ind. 430 (1877), which was an action by a purchaser at a partition sale of an intestate 's property held in .accordance with partition proceedings before the settlement of the est.ate of the intestate, to recover from the widow and heirs the amount which he had been required to pay the administrators of the estate for the settlement of the intestate 's debts. The court there held the purchaser could not recover, since he boul)hf the property .mhject to the right of the administraton·j to ca:use it to be sold for the pay,nent of the debts of tlhe estate 1>n ca,c;e that should be necessary, and that in his action against tlw widow and heirs, the purchaser was in no better position than he would have been if he had purchased from them and taken a deed to the property without covenants of title. The hasi~ or the decision is that a purchaser at a partition sale ordered in a suit among the heirs acquires the property as if from the heirs by deed, and acco1;dingly, subject to their ancestor's d~ht.s where a title acquired hy deed from the heirs wou1d be so cnrumhered.

Also worthy of speeial mmition is the case of Tri,m.mier v. "fVinsm-itl,, 41 S. C. 109, 19 S. E. 283 (1894), a contest between


a judgment creditor of the ancestor, instituting suit to subject the ancestor's lands to the payment of his debt and

16* *the purchaser at a partition sale held among the heirs to which the creditor had not been made a party. Hold

ing· the land still subject to sale for the debt, Pope, J., speaking for the courfdeclared (19 S. E. at p. 286):

'' Appellants, in effect, say, admitting all this to be true, Baxter H. Moore was a purchaser for value without notice. This Court bas repeatedly held that a purchaser at a judicial sale is only bound to see that the court ,vhich sells the land has jurisdiction to do so, a11d that all necessary parties are before the court. Isema,11, v. McM-illa11:, 36 S. C. 27, 16 S. E. 336, and cases there cited. "\Vhat did this purchaser find ·when he went to the records in the partition suit¥ That Dr. "\Vinsmith htid died in November, 1888, and that this suit for partition of the lands of the estate ·was begun in less than 12 months from his death, and that the sale was actually ordered in less than 12 months from his death, and that no creditor or personal representative of such deceased was a party to the Ruit. The records disclosed the existence of the unsatisfied judgment of the plaintiff. Under these cireumstances, did not Baxter H. :Moore buy with his eyes wide open, and u,:as not all that he bou._qht at su.ch sale the estate of Mrs. Winsmith anrl Mrs. Kate l\L Moore, as the heirs at law of Dr. John Winsniith, deceased? .. In other u;ords, the deeds he recei,ved from, the -master convevecl no more to Mm than wou,ld the deeds of Mrs. lVins1nith and Mrs. Moore the-rnselves. Would such deeds from Mrs. Winsmith and Mrs. l\foore to Baxter H. Moore for these thre~ lots of land have clone anything to prejudice the right,s of the creditors of ,John WinsmitM \Ve do not think so. It is the judgment of this court that the judgment or the circuit court he affirmed.''

'l'he following cases also i'lustrate the point that partition proceedings held without consider.ation of the rights of creditors having lien rights or charges upon the land result in the purchaser acquiring title subject to those lien rights or charges, and if such creditors are not made parties to the suit, f orrna11y or informally, their rights are unaffected hy the suit and sale.


Marion &c. Co. v. T-ilghman Lbr. Co. 84 S. C. 505, 66 S. E. 124 (1909) ;

Holley v. White~ 172 N. C. 77, 89 S. E. 1061 (1916); Pace v. Shields- Geise Lbr·. Co., 147 Ga. 36. 92 S. E.

755 (1917); Rippe v. W eiters, 96 Kan. 738, 153 Pac. 536 (1915);

17* *Green v. Brown, 146 Ind., page 1, 44· N. E. 805 (1896);

Helmick v. Kraft, 84 "\V. Va. 159, 99 S. E. 325 (1919); See Stevens v. M cConnick, 90 Va. 735, 19 S. E. 7 42

(1894); Bridge v. Snead, 151 Va. 383, 145 S. E. 338, 340

(1928); Cf. Klosterman v. Klostenna-n, 58 Ohio App. 511, 16

N. E. (2nd) 826 (1938).

The law seems plain. Creditors of a decedent do have the right to subject his real estate to payment of their debts, and that right the heirs cannot defeat by alienating the property within the year. No subtle scheme to circumvent the statutes and to exclude the ancestor's creditors by virtue of a private partition suit among the heirs can nullify the ,statute~ and divest the creditors of their rights unheard.

It would seem from the authorities cited that the law stands plainly against defendants' position, but anticipating that contentions made below will be made again, we do, however, crave the Court's indulgence in referring briefly to those contentions in the order in which defendants did advance them:

(a) "The Partition. Stat-ides'' (VA. CODE, Sections 52W, 5281 )-These do not purport to provide that persons not parties to a partition suit .and sale are concluded by it. If they authorize the bringing· in of creditors having charges against

the land, they do not provide that those charges are di-. 18* vested when *those creditors are not brought into the

suit.. The cases we have eited show sueh an argument to he unsupportable.

(h) "The Decree Confir,ming Sa1lp. And Ordering Deed To Be Made In The Partition lfnit .... Cannot B"' Colla,ferallJ/ Attacked .... "-A familiar ru1e of law, applicable to parties to the suit in which the decree was entered and their priv-

16 Supreme Court of Appeals of .Virginia

ies, and to them alone. It has no application to strangers to the record who were not parties to the suit, and the Receiver was not a party directly, or indirectly.

(1917) 15 R. C. L., P. 840, Section 314.

( c) Lien cred-itors of a, decedent are not necessary partie~ to a, partition swit.-This has been dealt ,vith.

(d) "But In. No Case Ts It Proper To Bring In Lien Cred-itors By A Separate Sitit. "-Having the right to sell their equity in R. C. Noell's land subject to bis debts (Helmick v. !(raft" 84 ,v. Va. 159, 99, S. E. 325 (1919); Holley v White, 172 N.,C. 77. 89 S. E. 1061 (1916) ), in which event they would not make the creditors parties to the suit, or to sell the land free of debts by conveying the creditors formally by process or informally by order of reference, the defendants to the present suit deliperately omitted the R. C. Noell creditors and elected to sell their equity subject to those debts.

They suggest in their answers that we should have intervened by petition, so that they would have had to sell more than the equity they themselves had elected to sell. The argument smacks of inconsistency.

( e) An order of reference was unnecessa-ry.-The answer to this is brief. Unless the number, amount and priority of liens are established before sale, no lienor is in a position to bid at the sale, since he cannot know how much interest he already has in the property or how much of his bid will c~ne

back to him. rrhat we shou1 d have bid at the sale, or that 19'"' we should *now assert our claim against the non-exist

ent proceeds is, therefore, patently unsound.

Quoting from 2 TI.ARRISON ON WILLS AND ADMINISTRATION (1927), page 928, Section 586, which disposes of the suggestion that we now intervene by way of petition:

I

' ' Perhaps there is no principle better settled by the adjudications both in Virginia and "\Vest Virg·inia than that it is error to decree the sale of real esta.te withO'ltt an ascerta1innient of all lien..c; and charges thereon, their am.01.tnts and their order of priority. It is almost unexplainable that this principle has harl to be enumerated so repeatedly by the courts and ahv.ays 80 uniform-

Lmvry, Receiver, etc. vs. Noell, et als. 17

ly. The cases are numerous; they illustrate each possible form of a charge; debts, advancements, legacies, or any other: possible charge upon the land. The reason assigned for the ·ntle is that those holcl-in.rJ charges upon the real esta.fe should be ex£ict/;y advised of the-ir rights in orcler to bid upon the vroperty, if 11,ecessary, and that the debtor should not be harassed with a ·multivlicity of siiits. ''

The Virginia case of Ste-l,ens v. 1UcCor1n-ick, 90 Va. 735, 19 S. E. 742 (1894), a partition suit, illustrates the principle. The case was reversed for want of an order of reference determining the interests of the parties.

II. The Answers Should Have Been Stricken Out.

The answers assert '' that the said Landon Lowry, Receiver, is estopped from, the bringing of this suit as all questions involved in the suit brought by Landon Lowry, Receiver could have been properly adjudicated and decided in the ,suit brought by March Noell and Others, which suit is now pending in thi8 Court and the said Landon Lowry could have intervened in said suit by virtue of Section 5281 of the Code of Virginia, and your Respondents aver and charge that the said Landon Lowry, Receiver had full knowledge of said suit and the sale of said tract of land.''

Nowhere do the- answers allege that petitioner, the Re· ceivcr. did anything to mislead the defendants. Neither

20'):< do they, *or any of them, allege any of the defendants wore mis' eel to thci 1· prc,juclicc or otherwise.

Now here do the answers allege defendants or any one of them did not have actual knowledge of the debts of the estate and of the debt due petitioner or of the fact that the personal property would he insufficient to pay the debts of the estate. Indeed, the answer of the administratrix in the partition suit had admitted as much. (R.. 59, 60)

K ow here do the answers controvert the fact that each defendant was charged by the record with notice of the debts as a matter of law, or even that the well-informed purchaser, defendant Arrington, did not fully realize that he bonght at his peril.


On these facts, we approach the plea of equitable estoppel, a legal doctrine whose basis is fraud, actual or constoructvve. In perhaps the leading case in Virginia on the subject ( C. & 0. Ry. Co. v. Walker, 10D Va. 69, 40 S. E. 633 (1902) ), Judge Keith quotes (40 S. E. at page 642) with approval from Pomc· roy's Equity Jurisprudence (2 POM. EQ. JUR. (2nd ed.),

· Section 807) :

'' . . . . . . This equity ( estoppel to claim an interest in real estate), being merely an instance of fraud, re· quires intentional deceit, or at least g-ross negligence which is evidence of an intent to deceive. In the lang· uage of a most recent decision, to preclude the owner of land from asserting liis legal title or interest under such circumstances, there 'lnust be shown either act'll,al fra,ud, or fauU of negligence equi-valent to f rai1,d, on his vart, in concealing his title, or that he was siilent when the circwmstances would im,pel an honest 1nan to speak or such actual intervention on his part so as to render it just that, as between him and the party acting upon his suggestion, he should bear the loss.''

vVe submit that the answers describe scant grounds for invoking a charge of fraud when the basis for the claim

21 * is *that petitioner failed to tell defendants what they already knew, that the petitioner failed to intervene in

the suit from which defendants knowingly, and we submit, wilfully, omitted him, and further when those answers do not even declare defendants. or any of them, ,vere misled by the conduct (i.e., his silence) complained of.

In the case of C. & 0. Ry. Co. v. Walker, supra, this Court said that the essential elements of equitable estoppel when applied to the legal title of land are ( 40 S. E. at page 642) :

'' ...... it must appear ·that the party making his admission by his cleclar.ation or conduct was apprised of the true state of his own title; (2) that he made the .admission with the express intention to deceive, or with such careless or culpable negligence as to amount to constructive fraud; (3) that the other party was not only destitute of all knowledge of the true state of th~ title; but of all means of arquiring such kno,Yledge;

Lowry, Receiver, etc. vs. Noell, ct als. 19

( 4) that he relied directly upon such admission, and will be injured by allowing its truth to be disproved.''

See also (1937) 10 AM. J"UR., Title: Estoppel, Section 91, page 7 49.

Elements No. 2, 3 and 4 are not found in this record.

In the same case it is also said ( 40 S. E. at page 643) :

'' It is also essential for its application with respect to the title to real property that the party claiming to have been influenced by the conduct or declarations of another to his injury was himself not only destitute of knowledge of the true state of the title, but also of any convenient or a.va.ila.hle means of acquiring such knowledge.''

See also Smith v. Plaster, 151 Va. 252, 144 S. E. 417, 422 (1928);

Steffey v. K-in,g, 125 Va. 120, 101 S. E. 62, 63 (1919) ; IIiden v. Ma.hanes, 119- Va. 116, 89 S. E. 122 (1916); C(irpenter v. Ora,y, 113 Va. 518, 75 S. E. 300, 303

(1912).

22* *The commissioner in chancery to whom this cause was referred cited (R. 31) the case of Patterson v. Patterson,

144 Va. 113, 131 S. E. 220 (1926), as authority for the position taken in his report upholding· defendant's plea of estoppel. He understood the case to hold that, an heir, who without objection permits executors to sell real estate under the will, w·hich in fact affords no such authority to the executors, is thereafter estopped to contest the ·sale: The commissioner's discussion of the case ig'Ilores: (1) that the heir was actually present at the sale and encourag-ed those present to bid; and (2) that the l1eir received his portion of the purchase money and gave the e:xeeutors his receipt therefor. (See 131 S. E., page 220.)

In short, the commissioner appears to have overlooked the principal and determinative points in case, points that completely distinguish the Patterson ca~e from the case at bar.

The authorities cited show, we believe, that the claim of estoppel is without foundation in law or merit in fact.

20 Supreme Court of Appeals of Virginia .

.Although citation of authorities from outside of Virginia ·would seem unnecessary in view of the plain position of this Court in the cases mentioned above, ,ve do not like to close this feature of the brief without calling to the attention of the Court the case of Rippe v. "JtV eiters, 96 Kan. 738, 153 Pac. 536. (1915). The facts are practically identical w·ith those in the case involved and the issues were the same. The plaintiff who had purchased property at a judicial sale in a partition suit among· the heirs sought to enjoin a sale later had to sell the same identical land for the payment of a debt due by the ancestor-owner's estate to the defendant for whose benefit the land ,vas being advertised for sale. The grounds alleged ·were that the defendant had" fitll actual notice and knowledge

of the vendency of the part-ition snit, b11,t perinitted the 23* plaintiff to pu,rchase *without objection.'' And that

'' the plaintiff contends that it was the business of the claimant to intervene in the partitio11 suit, and that not having done so, ·she cannot question the title of one who purchased and paid full value * * * ". This contention the Court held in a unanimous opinion to be unsound dec1aring that the purchaser at the partition sale took title subject to valid claims against the estate of the .ancestor ·which the personal property ·was not sufficient to pay and that the land was subject to sale for def enclant 's claim. That case presents a striking similarity to the case at bar in identity of facts, of the general law prevailing in that State, and in the issues involved. In the language of the day, it is "a dead ringer" for the case at bar.

III. '1:HE TRI.AL COURT'S OPINION.

Counsel frankly does not fully understand it.

The demurrers, which were'' the first order of business,'' were ignored. Action on them is yet ''reserved,'' to use the trial court's own language. (R 53)

The plea of estoppcl set up in the answers is not consider eel by the trial eourt as the hasis of its decision. (R. 49)

The partition statutes, Sections 5279i and 5281 of the Code, are quoted by the court, which seems to attach consider· able importance to them, aU.hoiigh the very provisions -under. scored in the trial court's op,inion ref er on their face not to· creditors havin,g a lien a.,qa'i1·1.st the p,ntirP- snb.iect matter b'ltt


'rnierely to those having liens against the interest of one co-par, .cener, tena,nt in co·mnion or joint tenant. (R. 49, 53)

24'x, * Although we do not understand this to be the basis of the Court's decision, or even that the opinion expressly

so declares, the inference might be drawn that petitioner, the. Receiver, had no proper authorization to maintain this suit. Lest our case be inadvertent1y prejudiced, it seems only fair to observe that the question has not been raised during the five years before the rendition of the court's opinion at the conclusion of the case. Of course, counsel are precluded from now enumerating in this record suits maintained and concluded in the same court, without question as to the authority to maintain them being voiced.

It is not known whether the four years delay in the filing of a brief attributed to the Receiver is a part of the record or not, although reference is made to it in the opinion. (R. 45) At all events, since the suit had been matured, it is not believed to be the basis of the court's decision, or sufficient grounds on which to sustain that decision.

~ehe learned trial court opines (R 48) that if the property ]md been re-sold in this suit a better price would not have been obtained. There was no evidence before the court as to this ( and naturally before the demurrer had been ru!eci upon), and counsel do earnestly submit that the not inconsiderable '' judicial notice'' set forth in the opinion cannot warrant this conclusion in the record. It is. not, however, the basis of the

· decision.

As well as counsel do understand the basis of the Court's decision it is this: "what is conceived to be the judicial prerogative to supervise, to direct and to control the functions, the actions and the proceedings of its officer. a receiver appointed by the court." (R. 49) We can only say that it is not believed to be the court's prerogative in supervising its

receivers to deprive the owners and creditors of the de-25* funct corporations, *whose affairs are being thus ad-

ministered, of property rights accorded that corporation hy law. Rather, it is believed to he the court's duty to accord fu 11 recognition to those rights even a.t the price of in- · validating· the results of previous litigation erroneously conducted in tlie same rourt.


IV. THE COMMISSIONER'S REPORT.

"Why it was necessary to refer this cause to a commissioner in chancery upon a question of law is not fully understood. The ca.se was heard upon bill, demurrer and answer throughout.

The Commissioner reported favorably the plea of estoppel. His error is thought to have a.risen largely from "the fact that he regarded the purchaser, defend;mt, Arrington, as a bona fide purchaser (R. 29), and this despite the fact that (1) Arrington had constructive notice of the debts under Section"" 5397 of the Code, (2) had constructive notice of the debts from the record in .the partition suit in which he purchased the land at judicial sale (and thereby became a quasi-party, Powers v. Sutherland, 157 Va. 336, 160 S. E. 57 (1931J ), and (3) had actual knowledge, in fact, of the debts and the insufficiency of the personal property to pay them.

26* *CONCLUSION

For the Court's errors in failing .to rule upon the demurrers and in not overruling· the same, in sustaining the :plea of estoppel set forth in the answers and in dismissing your Petitioner's suit, your Petitioner respectfully submits that the final decree entered by the Circuit Court of Bedford County, should be reviewed, reversed and remanded for further proceedings. In consideration whereof, your Petitioner, Landon Lowry, Receiver of the Bedford County Bank, Incorporated, prays that he may be allowed an appeal to the final decree entered by th~ Circuit Court of Bedford County, in this case on the 4th day of January, 1940.

Counsel for Petitioner herein declares his intention to be heard orally in support of this petition for an appeal.

Respectfully submitted this 2nd day of May, 1940.

LANDON LOWRY, Receiver of the Bedford County Bank, Incorporated.

By Counsel LOWRY & RADFORD, WILLIAM W. BERRY, Jr.,

Bedford, Va.

27*

Lowry, Receiver, etc. vs. Noell, et als.

~~CERTIFICATE

23

The under.signed attorneys, practicing in the Supreme Court of Appeals of Virginia, do hereby certify that, in our opinion there are issues involved in the decree complained of in the foregoing petition which should be reviewed by the Supreme Court of Appeals of Virginia.

Given under our hands tl1is 2nd day of May, 1940.

JOHN B. OLIVER, Bedford, Virginia.

W. E. PADGETT, Jr., Bedford, Virginia.

Appeal and supersedeas awarded. Bond 300.00.

H. B. GREGORY. '5-13-40.

Received May 15, 1940. M.B.W.


RECORD

Virginia:

Pleas at the Courthouse of Bedford County, before the Honorable A. H. Hopkins, Judge of the Circuit Court of Bedford County, holding the December, 1939, term, on Thursday, the 4th day of January, 1940, and in the 164th year of the Commonwealth.

Be it remembered, that heretofore, to-wit: In the Clerk's Offic·e of the Circuit Coui~t of ·Bedford County, on the 3rd day of November, 1934, came Landon Lowry, Receiver of the Bedford County Bank, Incorporated, and on behalf of himself and all of .the other lien creditors of the estate of R. C. Noell, who may come into this suit upon the condition of contributing their ratable proportion of the costs thereof, and filed his Bill in chancery against Bettie P. Noell, in her own right, and as Administratrix of the Estate of R. C. Noell, deceased, March Noell, Jack Noell, Peter Noell, Emmitt Noell, Jewel Noell Luck, Bee Noell, Obera Noell Garrett, Woodrow Noell, Iris Noell, Doctor Noell, J. K. Noell, and Louise Noell, children and heirs at law of the said R. C. Noell, deceased, R. B. Arrington, Charleston National Bank, the Successor to the Union Trust Company, a Corporation, and .the Greenbrier Joint Stock Land Bank of Le,visburg, vVest Virginia: which Bill is in the words and figures following, to-wit:

'' In the Circuit Court of Bedford County, Virginia:

To the Honorable A. H. Hopkins, Judge of the Circuit Court of Bedford County, Virginia:

Your complainant, Landon Lo·wry, Receiver of the Bedford County Bank, Incorporated, and all of the other lien creditors of the estate of R. C. Noell, who may come into this suit upon the condition of contributing their ratable proportoiu of the costs thereof, respectfully shows unto Your Honor the following facts, to-wit:

LowTy, Receiver, etc. vs. Noell, et als. 25

That on the 31st day of December, 1933, the said R. C. Noell departed this life, intestate, in the County of

page 2 ] Bedford, Virginia, leaving surviving him a widow, Bettie P. Noell, fifty-two years of age, and the fol

lowing named children us his only heirs at law, to-wit: March Noell, Jack Noell, Peter Noell, Emmitt Noell, Jewel Noell Luck, Bee Noell, Obera Noell Garrett, ·w oodrow Noell, Iris Noell, Doctor Noell, J. K. Noell, and Louise Noell, all of whom are over the age of twenty-one years, except t11e last five above named, and the said last five above named children are all under the age of twenty-one years.

Your complainant further represents that on the 8th day of January, 1934, the said Bettie P. Noell, widow of the said R. C. Noell, duly qualified before the Clerk of the Circuit Court of Bedford County, Virginia, as the Administratrix of the personal. estate of the said R. C. Noell, deceased, entered into and acknowledged a bond before said Clerk, and duly took possession of the personal estate ·of the said R. C. Noell, deceased.

Your complainant further represents that he is informed, therefore, believes and charges that the said Administratrix advertised and sold certain of the personal estate of the said R.. C. Noell, but has never settled her accounts as Administratrix before a Commissioner of Accounts, or otherwise.

Your complainant further represents that on the 31st day of l\farch 1934, Landon Lowry, Receiver of the Bedford County Bank, Incorporated, recovered a judgment against the said Bettie P. Noell, the Administratrix of the personal estate of the said R. C. Noell, deceased, in the sum of $57;0.00, with interest tl1ereon from the 15th day of May, 1933, until paid, and the costs of said proceeding, including 15% additional as attorney's fee, upon and instrument waiving the benefit of the homestead and any other exemptio11s, and $3.50 costs, which said judgment is duly doeketecl in said Clerk's Office in ,Judgment Lien Docket No. 11, at page 43. A duly certifir:.d abstract of the said judgment will be filed with this bill, if deemed necessary. 01· if r~quired. Your complainant further

represents that the sai<l judgment, or no part therepage 3 ] of, has been paid to him.

Your comp1ainant further represents that by deed bearing· date on the 19th day of October, 1914, of record in said Clerk'f. Office in Deerl Book No. 112, at page 321, one ,T. N. Nickol~· and Annie M. Nickols, his wife, and R. B. Schenk,


conveyed unto the said R. C. Noell, all of a certain tract or parcel of land, situated nea.r Montvale, in Bedford County, Virginia, adjoining the lands of J.M. Luck, M. L. Tankersley, Lance De ,~Titt, Payne, Moseley Arnold, and others, and containing 15711/z acres, more or less. A duly certified copy of which said deed wi:l be fied with this bill, if deemed necessary, or if required.

Your complainant further represents that at the time of the de.a.th of thq said R. C. Noell he was seized and possessed of the above described tract or parcel of land; and that the indebtedness due by the said R. C. Noell to the said Bedford County Bank, Incorporated, or to the said Landon Lowry, the Receiver thereof, constituted a valid artd subsisting lien on said tract or parcel of land; and that the said indebtedness, evidenced by the judgment aforesaid, now constitutes a subsistingj and valid lien on the said tract or parcel of land.

Your complainant fµrther represen_ts that so far as he is informed and advised. the real estate aforesaid is all of the real estate owne.d by the said R. C. Noell at the time of his death, and that the personal property owned by the said R. C. Noell at the time of his death is entirely. inadequate and insufficient to pay off and discharge the liens thereon, or the debts due and owing by the said R. C. Noell at the time of his death.

Your complainant further represents that he is informed, therefore, believes and charges, that he has the right to have the real estate aforesaid, whereof the said .R.. C. Noell died seized and possessed, subjected in these proceedings, or sold, a;nd the proceeds thereof, after the payment of the costs of this suit, .applied as a credit on the indebtedness afore~aid due by the estate of the said R. C. Noell to your said complainai1t.

Your complainant further represents that by a cerpage 4 ] tain deed of trust, bearing date on the 1st day of

July, 1925, of record in said Cl~rk 's Office in Deed Book No. 144, at page 54 the said R C. Noell, by the name of Richard Calloway Noell, and Betty Pearl Noell, his wife, conveyed unto The Union .Trust Company, a Corporation, of Charleston, West Virginia, as Trustee, a tract of land described as containing 1581h acres; and being the same land which was conveyed to the said R. C. Noell bv deed of October 19, 1914, nnd r~corded in the Clerk's Offi~e of the Circuit Court of Bedford County, Virginia, in Deed Book No. 112, at page :121, hy .T. N. Nichols and wife and R. B. Schenk, in trust


to secure the payment at maturity of that certain negotiable promissory note, of even date with said deed, made by the said grantors, in the sum of $2,000.00, payable thirty years after date to the order of the Greenbrier Joint Stock Land Bank of Lewisburg, West Virginia, with interest thereon according to the terms of the said note, until paid, in which said deed of trust it is provided that the said loan secured by said deed of trust would be paid to said Bank, its successors and .assigns, on the amortization plan by means of sixty semi-annual installments, in the amount of $72.28 eac.h, in accordance "ith tables provided by the Federal Farm Loan Board. A duly certified copy of which said deed of trust will be filed with this bill, if deemed necessary, or if required.

Your complainant further alleges that he is informed, therefore, lJelieves .and charges, that there was due to said Greenbrier Joint Stock Land Bank, as of January 1, 1934,.. on account of said loan, the sum of _$1892.02; and that there was at that time in arrear and due to said Bank several instalments of interest on the said loan.

Your complainant further represents that the indebtedness aforesaid of the said R. C. Noell and the said Betty Pearl Noell due to said Greenbrier Joint Stock Land Bank, evidenced by the note aforesaid~ and· secured by the said deed of trust,

constitutes a valid and subsisting lien on the real page 5 ] estate whereof the said R. C. Noell died seized and

possessed. Your complainant further represents that on the 2nd day

of February, 1934, the said March Noell, J.ack Noell, Emmett Noel~ Pete Noell, Jewel N. Luck, Bee Noell, and Obera N. Garrett filed their Bill in Chancery in the Clerk's Office of the Circuit Court of Bedford County, Virginia, against the said Bettie P. Noe I, in her own right, and as Administratrix of the Estate of R. C. Noell, deceased, ·woodrow Noell, Iris Noell, Dock Noell, J. K. Noell, and Louise Noell, the last five of whom w·ere infants under the age of twenty-one years; the said complainants and the said defendants, with the exception of the said Bettie P. Noell, being a11 of the children and heirs at law of the .said R. C. Noell, and the said Bettie P. Noell being tlie widow· of the said R. C. Noell, in w·hich said bill it is alleged among other thi.:Qgs, that the said R. C. :Noell departed this life intestate on or about the 31st day of December, 1933, 'eaving· as his sole heirs at law, his widow, Bettie P. NoeU, fifty-three years of age, and the twelve children above named;


and that each of the said children is entitled, after the payment of the debts, to a one-twelfth undivided interest in said estate, both real and personal, of the said R .C. Noell, deceased, subject to the dower rights of the widow, Bettie P. Noell, therein;

That the said R. C. Noell died seized and possessed of a certain tract or parcel of land, situated in Lisbon Magisterial District, near Montvale, in Bedford County, Virginia, containing 157¥:! acres, more or less, adjoining the lands of J. M. Luck, M. L. Tankersley, Lance De "\Vitt, and others; and being the same land conveyed to the said R. C. Noell by J. N. Nichols and wife by deed dated the 19th day of October, 1914, of record in the Bedford Circuit Court Clerk's Office in Deed Book No. 112, at page 321; the said tract or parcel of land being the same tract or parcel of land hereinabove mentioned and described;

That the said Robert Calloway Noell, (who is the same person as the said R. C. Noell), and Bettie P. Noell, his wife,

conveyed the above described tract or parcel of land page 6 ] to The Union Trust Company, a Corporation, of

Charleston, "\Yest Virginia, as Trustee, by deed dated the 1st day of July, 1925, of record in said Clerk's Office in Deed Book No. 144, at page 54, in trust to secure the Greenbrier Joint Stock Land Bank of Lewisburg, West Virginia, the sum of $2,000.00, evidenced by a negotiable promissory note, in the sum of $2.000.•80, of even date with said deed, and payable in sixty semi-annual payments of $72.28 eacl1, payable on the 1st day of January and July in each year; and that there was then due to the said Greenbrier Joint Stock Land Bank a balance in the sum of $1892.02 as of January l. 1934;

That the Raid Bettie P. Noell qualified as Administratrix of the Estate of the said R. C. Noell, deceased, on ,January 8, 1934, and that there were certain items of personal property to be sold by her, .and that the same would probably be sufficient to pay all of the debts of the estate other than the deed of trust upon the above land.

It is further alleged that the above deed of trust and the taxes for the years 1931, 1932, and 1933 were the only items on said real estate.

It is further alleged in said bill that the said tract or parcel of land could not be conventiently partitioned in kind mnong the heirs at law of the said R. C. Noell, deceased, and

Lowry1 Receiver, etc. vs. Noell, et als. 29

that the entire tract could not be allotted to any party or parties who would accept it and pay therefor to the other parties such sums of money as their interest therein would entitle them to; m1d that the interest of all parties would be promoted by a sale of the entire tract or parcel of land and a division of the proceeds among the parties entitled thereto; and that au .allotment of part and a sale of the residue could not be had among said parties.

It is further alleged in said bill that it ·would be to the advantage of all parties to said suit that a sale of said land be

had, and that it he sold subject to the balance due to page 7 ] the Greenbri~r Joint Stock Land Bank, and that a

Receiver be appointed for the purpose of renting said land for the year 1934;

That the prayer of the said bill was that the said Bettie P. Noell, in her own rig-ht, and as Administratrix of the Estate of R. C. Noell, deceased, ·woodrow Noell, Iris Noell, Dock Noe 1l, ,J. K. Noell, and Louise Noell, the last five of whom were infants under the age of twenty-one years, be made parties defendant thereto, and be required to answer the same, the five infants by a Guardian ad Lit.om appointed by the Court to represent them, and the adults in proper person; but answers under oath were thereby expressly waived; that the Court direct a. sale of the said tract or parcel of land, and that the proceeds of said sale be distributed among the parties entitled thereto; that all proper accounts he ordered and taken; that a reasonable attorney's fee be paid to complainants' attorney for instituting· and conducting said suit; that complainants he granted a 11 such other and further relief, both general and special, as the nature of their case might require, and as to equity and good conscience might seem meet and proper.

Your complainant further represents that ut the first February Rules, HJ34, the said Bettie P. Noell, in her own right, and as the Administratrix of R.. C. N ocll, deceased, filed her answer to said bill, in which she alleg·ed that the allegations made in said bin were true and correct; that, after the payment of the debts of the said estate, she was entitled to one-third of all of the personal estate; that the said defendant alleged that she did not believe there was sufficient personal estate to pay the debts; and that she was entitled to a onethird life time interest in the surplus arising from the sale of the farm, after the payment of a debt secured hy a deed of


trust on which there was a balance due of $189,2.02 as of ,January 1, 1934, as set out in paragraph 4 of complainants' bill.

The said respondent a1leged that she concuned in the prayer of the complainants' bill, and recommended

pag·e 8 ] that the Court make sale of the property described in the bill and proceedings, either publicly or private

ly, in order to effect a partition thereof. At the same Rules, William Eubank, as Guardian ad

Litern, filed an answer for the infant defendants: vVoodrow Noell, Iris Noel', Dock Noell, .J. K. Noell, and Louise Noell.

Your complainant further represents that by a decree entered in said cause on the 20th day of February, 1934, the said cause was heard on the bill of the complainants and affidavits filed therewith; the answer of the infant defendants; the answer of Bettie P. Noell, in her own right, and as Administratrix of R.. C. Noell, deceased; and it appearing to the Court from the bill filed by the said complainants that one R. C. N oeil departed this life intestate seized and possessed of a tract or parcel of land, situate in Lisbon Magisterial District, in Bedford County, Virginia, containing 157% acres; and it further appearing to the Court from the sai<l bill that the said real estate could not be partitioned in kind among the said complainants, and that it would be to the best interests of all parties concerned to sell the same an<l to divide the proceeds of such sale among those entitled thereto; and it further appearing to the Court that a partition of the ~ntire real estate in the bi.I and proceedings mentioned, or any part thereof, could not be made to advantage, but that a sale of said real estate would be to the best interests of all parties concerned; and it further appearing to the Court that said land was subject to a deed of trust due to the Greenbrier .Joint Stock Land Bank of Lewisburg, "\Vest Virginia, on which there was a balance due of $1892.02 as of January 1, 1934, and that it would be to the advantage of all parties concerned that said tract or parcel of land be sold subject to ~~aid deed of trust; the Court did adjudg·e, order, and decree that vV. R. Saunders be, and he therehy was, appointed a Commissioner to sell the said tract or parcel of land in the bill and proceedings nientioned, containing 1571/z acres; and that the said Cornmis·

sioner was authorized to sell the said tract or parcel page 9 ] of land rnbject to the deed of trust due to the

Greenbrier .Joint Stock Lnnd Rank of Lewisburg,


West Virginia; and, in the event said tract of land was sold subject to said deed of trust, any amount over said deed of trust should be paid by the purchaser in cash; and the said Commissioner was required to enter into a bond before the Clerk of the Court before executing said decree, in the penalty of $2,000.00, conditioned .according to law.

Your complainant further represents that the said W. R. Saunders, Commissioner, as aforesaid, executed the bond required by the said decree on the 20th day of February, 1934, with the Fidelity and Deposit Company of Maryland as su.rety thereon.

Your complainant further represents that at the March Term, 1934, the said ,Y. R. Saunders, Commissioner, filed his report as such, from which it appears that after giving the bond required by the aforesaid decree, and after duly adverising the time, terms, and p1ace of sale, and after having in all other respects complied with the terms of said decree, he offered said land for sale, on the 5th day of March, 1934, in front of the Courthouse of Bedford County, Virginia, by way of public auction, at which sale one R. B. Arrington, being the l1ighest bidder, became the purchaser thereof at the price of $2150.0); and that he had elected to pay the said. sum of $2150.00 by the assumption of a debt of $1892.02, with interest thereon from January 1, 1934, due to the Greenbrier Joint Stock Land Bank of Lewisburg, vV est Virginia, which said debt was secured by a deed of trust dated the 1st day of July, 1925, of record in the Bedford Circuit Court Clerk's Office in Deed Book No. 144, at page 54; and that the said R. B. Arrington had elected to pay the balance of said purchase money, amo,nting to ,$257.98, in cash; and the said Commissioner further reported that said sale was ,vell advertised and well attended, and he recomni,ned that the above sale be confirmed and that the Court direct that said property be conveyed to R. B. Arrington, or t.o whom he might in writing direct, subje!:'t to the aboYe deed of trust, unless the purchaser should,

before said <leed was made, elect to pay the full _nage lO ] purchase price in cash.

Your complainant further represents that by a further decree entered in Raid cause on the 6th day of March, 1934, the said report of the said ·w. R. Saunders, Commissioner, ancl_ the sale therein mentioned, were approved and confirmed; and the said Saunders. Commissioner, was direeted to collect from the said R. B. Arring:ton, the said sum


of $257.98, .and, out of the same, to pay the costs of said suit, the taxes upon said real estate for the years 1931 and 1932, and an attorney's fee of $75.00 to himself for instituting and conducting said suit; and, by said decree, the said W. R. Saunders was appointed a Commissioner to convey unto the said R. B. Arrington, or to whom he might in writing direct, the said tract or pai·cel of land so purchased by him, by proper deed, with covenants of special warranty of title, when the said R. B. Arrington should have complied with the terms of said decree.

Your complainant further represents that by deed bearing date on the 24th day of April, 1934, of record in the C~erk's Office of the Circuit Court of Bedford County, Virginia, in Deed Book No. 168, at page 472, the said W. R. Saunders, Commissioner, on behalf. of the heirs at law of R. C. Noell, deceased, R. B. Arrington and Annie ,J. Arrington, his wife, after reciting the proceedings had in said suit of' March Noell, et als., v. Bettie P. Noell, et a1s., and after further reciting that the said R. B. .A_rrington had directed the said ,v. R. Saunders, Commissioner, as was evidenced by the said R. B. Arrington and his wife joining in said deed, to convey the said property to "\Yoodrow Noell and Bee Noell. did convey to the said ,v oodrow Noell and Bee Noell the said tract or parcel of land hereinabove mentioned and described, containing 157% acres, more or less ; and being the same land conveyed to the said R.. 0. Noell by J. N. Nichols, and wife by deed dated the 19th day of October, 1914, of record in Bedford Circuit Court Clerk's Office in Deed Book Ko. 112, at page 321. A duly <'ertified copy of which said deed will be filed with this bill, if deemed necessary, or if required.

Your complainant further represents that he was· pap:e 11 ] not made a party to said suit of ~larch Noell, et

als. v. Bettie P. Noell, et a~s.; that the other creditors of the said R. C. Noell were likewise not made parties to said suit; that no order of reference ,vas had in said cause to nscertain and report to Court the liens on the real estate whereof the said R. C.. N ocll died seized and possessed, together with their relative priorities; tliat the said R. C. N oeU departed this life intestate on the 31st day of December, 1933, and that the said Bettie P. Noell on the 8th day of ,January, 1934, qua1ifierl as the Administratrix of the said estate; that the said Administratrix has paid none of the debts, so far as your complainant is informed, tlwrefore, helieves and charges,

Lowry, Rereiver, etc. ,s. Noell, et ah;. 33

which constitute liens on the real estate whereof the said R. C. Noe~l died seized and possessed; that she has not settled her accounts as such Administratrix before the ·Commissioner of .Accounts in the Cireuit Court of Bedford County, and your -complainant, therefore, further alleges and charges that the said proceedings had in the said suit of :March Noell, et als., v. Bettie P. NoelL et als., are utterly void and of no effect and amount to a mere nullity in so far as the rights of your complainant as a creditor of the estate of R. C. Noell, deceased, are concerned, and in so far as the rights of the other creditors of the said R. C. Noell, deceased, are concerned.

Your complainant further represents that while, as a matter of law, the said Bettie P. Noell, the widow of the said R. C. N ocll, deceased, and the ·said R. B. Arrington, "'\Voodrow Noell and Bee Noell, were chargeable with notice of the fact that all debts due and owing by the estate of the said R. C: Noell, deceased, constituted liens on all of his property, real and personal; and that no valid title to any such real estate so owned by him could he conveyed to a purchaser or purchasers therco f in a partition suit, or otherwise, except and until all dehts clue hy the estate had been paid off and discharged; that all of said parties, as a matter of fact, had direct and positive knowledge of the fact that the said R. C. Noell, at the time of his death, ,vas indebted to and owed to

the Bedford County Bank, Incorporated, the said page 12 ] indebtedness hereinabove me11tioned and describ-

ed; that the said Bettie P. Noell and the said R.. B. Arrington discussed with your said complainant at length the said indebtedness prior to the qualification of the said Bettie P. Noell as Administratrix of the estate of R. C. Noell, deceased; and that she stated to your said complainant, in the presence or the said R. B. Arrington, tliat the personal estate of the said R. C. Noell, deceased. was entirely inadequate and insufficient to pay off and discharge the said indehtedness of the said ei;;tate, and particularly the indebtedness due to your Baid comp1ainant; that acting upon the advice of your said complainant, iu his capacity as an attorney at law, the said Bettie P. Noell, on the 8th day of .January, 1934, qualified as the Administratrix of the Estate of the said R. C. Noell, dece.ased.

Your complainant further represents that the said R. B. Arrington is a brother of the said Bettie P. Noell and an uncle of the Raid \Yoodrow Noe11 and Bee Noell.


Your Complainant further represents that any right, title, and interest in and to the said tract of 1571/z acres of land acquired by the said Woodrow Noell and Bee Noell is subject to the lien of your complainant thereon, and is likewise subject to the liens of all of the other creditors of the said R. C. Noell, deceased; and that the said tract or parcel of land should be subjected under proper orders and decrees to be entered in this Court to the payment of t~e liens thereon.

Your complainant further represents that the rents and profits which may be derived from said real estate will not in five· years pay off and dis~harge the liens thereon.

Your complainant f~rther represents that since the saH R. C. Noell, by the name of Richa.rd Calloway Noell, and Betty Pearl Noe 1, his wife, conveyed the tract or parcel of land hereinabove mentioned and described, by deed bearing date ·on the 1st day of.July, 1925, of record in said Clerk's Office in

said Deed Book No. 144, at page 54, to the said page 13 J Union Trust Company, a Corporation, of Charles-

ton, ·west Virginia, as Trustee, to secure the payment of the note likewise hereinabove mentioned and described, in the said sum of $2,000.03, the said Union Trust Company has merged into the Charleston National Bank of Charleston, vVest Virginia; that the charter of the said Union Trust Company has been sunen<lered; and that all the powers and duties f ornwrly vested in said Union Trust Company hy virtue of the deed of trust aforesaid al'e now vested by reason of the merger aforesaid, in the said Charleston National Bank, and your complainant further represents that the said Char1 eston National Bank is a necessary and pl'oper party to this suit by ;reason of the faets hereinabove alleged.

Your comp la iuant further l'epresents that the said Jack Noell, the said ]Jmmitt Noell, the said Charleston National Bank of Charleston, Charleston, ,vest Virginia, and the Greenbrier Joint. Stock Land Bank of Lewisburg, ,vest Virginia, are all non-residents of the State of Virginia; that. the Post Office addresses of the said ,Jack N ocll and the said Emmitt N ocll are unknown; that the last information had as to the Tesidenco or Post Office ad<lress of the said Jack Nuell was that he resided at the Panama Canal; that the last information had as to the residence of the said Emmitt Noell was that lie resided in the State of California, but his Post Office address is unknown; that_ the Po$t Office address of the said

Lowry, Receiver, etr. vs. Noell, et als. 35

Charleston National Bank is Charleston, ·west Virginia, and the Post Office address of said Greenbrier Joint Stock Land Bank of Lewisburg is Charleston, West Virginia.

In tender consideration whereof, and forasmuch as your complainant is without remedy, save in a Court of Equity whore such matters are properly cognizable ~nd relievable, he prays that the said Bettie P. Noell, in her own right, and as Administratrix of the Estate of R. C. Noell, deceased, the said :March Noell, Jack Noell, Peter Noell, Emmitt Noell, Jewel NoeH Luck, Bee Noell, Ober~ Noell Garrett, Woodrow Noell, Iris Noell, Doctor Noell, J. K. Noell, and Lou1se Noell, chil-

dren and heirs at law of the said R. 0. Noell, depage 14 ] ceased, R. B. Arrington, Charleston National Bank,

the Successor to the Union Trust Company, a Corporation, and the Greenbrier Joint Stock Land Bank of Lewisburg, "'\Vest Virg·inia, may, by prope

0

r process, be made parties defendant to this bill and required to answer the same, the aclul ts in proper person, and the inf ants by a Guardian ad Litem to be assig!ied to them by this Court in this proceeding, though answer under oath by the said defendants, and each of them, is hereby cxp1·essly waived; award an order of publication against the non-resident defendants, Jack Noell, Emmitt Noell, the Greenbrier Joint Stock Land Bank of Lewisburg, "\Vest Virginia, and the said Charleston N atio1ial Bank of Oharlestion, ·west Virginia, the Successor of the Union Trust Company, a Corporation; direct that this suit may be refened to one of the Commissioners in Chancery of this Court, with instructions to take, state, settle and report to Court wliat estate, real or personal. was owned by the said R. C. Noell at the time of his death, together with an account of the liens thereon, showing their respective relative priorities; dec1 are the proceedings had in the chancery suit of March Noell, and others, against Bettie P. Noell, Administratrix of the Personal Estate of the said R. C. Noell, deceased, and others, to be null and void and of no effect, and to amount to a mere nnllity insofar as the rights of your complainant as a creditor of the Estate of the said R. C. Noell, deceased, are concerned, and insofar as the rights of the other creditors of the said R. C. Noell a re concerned; that the said real estate whereof the said R. C. Noell di_ed seized and pm;sessed may be cli-rected to he sold under a proper decree of this Court, and that the proceeds which may be derived therefrom may be first applied to the payment of the costs of this suit. inch1ding a reaRonahle fee to complainant's attorney f01· instituting and


conducting this suit, and that the I·esidue thereof be applied to the payment of the debts due by the said R. C. Noell as ascertained by the report of the said Commissioner in Chancery, and particularly that +he debt of your complainant may be paid out of the proceeds of the sale of the said real estate,

and that any residue of the proceeds of said sale, page 15 ] after the payment of said costs, attorney's fee,

and debts due by the estate of the said R. 0. Noell, deceased, may be paid over to the proper parties entitled thereto; direct that the said Bettie P. Noell, Administratrix of the Estate of the said R. C. Noell, deceased, be required to settle her accounts as such Administratrix before one of the Commissioners in Chancery of this Court; grant unto said complainant all such other and further relief, both general and special, as the nature of his case may require, and as to equity and good conscience may seem meet and just.

And, as in duty bound, he will ever pray, etc.

LOVfliY & BUHKS,

LANDON LOvVRY, Receiver of Bedford County Bauk, 1nco11)orated,

By Counsel.

vYILLlAM ,v. BERRY, JR., p. q.''

At another day, to-wit: Circuit Court of the County of Bedford, December 19, 1934.

On motion of the defendants, March Noell, Jack Noell, Peter Noell, liJmmitt Noell, Je,vel Noell Luck. Bee Noell, Obera Noell Garrett, ·woodrow Noe·l and R. B. Arrington, and by counsel, leave is granted them to file their demurrers and answers to a Bill of Complaint filed against them by Landon Lowry, Receiver of Bedford County Bank, Incorporated, whereupon the same were filed.

Demurrer and Answer to Bill of Complaint, filed in Court December 19th ,1934.

The clefen<lant, Bettie P. Noell, in her own right and as Administrator of the estate of R. C. Noe'l, deceased, demurs to the said bill of the said Complainant and says that the same is not sufficient in law. ·

Auel not waiving her said demm_Ter but relying and insisting- thereon. the snid defendant for answer to

Lowry, Receiver, ete. YS. Noell, et als. 37

page 16 ] the said Bill of Complaint or to so much thereof as she is ad·vised that it is material that she answer,

answers and says :

It is true as is charged in said bill of Complaint that her husband, R. C. Noell departed this life intestate on the 31st day of December, 1933, leaving as his sole heirs at law, his widow and twelve children, five of whom are under the age of twenty-one and whom your respondent has been looking after and supporting· to the best of her ability. Your Respondent further represents that it is true that on the 2d day of February, 1934, March Noell and several of the other children of R. C. Noell, deceased, filed Bill in Chancery in the Clerk's Office of the Circuit Court of this Court, having as its object a settlement of the estate of R. C. Noe1l, deceased. Your Respondent further represents that the said R. C. Noell had very

- little personal property at the time of his death and that your Respondent duly qualified as Administratrix and has sold said personal property and will file a report of her trans~ct.ions with thfa answer, and that the proceeds from the sale of said personal property were barely sufficient to satisfy the funeral expenses of the said R. C. Noell; that at the time of the death of the said R. C. Noell there was a mortgage on the farm, upon which farm said R. C. Noell and family resided and that by a decree entered in the above suit, brought by :March Noell and others. it was provided that said farm be sold subject to the mortgage thereon, if the purchaser so saw fit to pay cash for the said property. Your Respondent represents that one R. B. Arrington, her brother, for the purpose of helping his sister, and her children, bought said place and directed that it be conveyed to "\Voodrow Noell and Bee Noell, two of your Responden·t '~ children who are aiding and assi.ting their mother in taking care of her and her other infant chi 1 cl ren.

Your Respondent avers and charges that on ·March 31, 1934, Landon Lowry, Re(•eiver, confessed judg

page 17 J ment on a note in the sum of $570.00, which note was pmported to he signed by R. C. Noell, and en

dorsed by Bettie P. Noell, although he knew at the time that he had judgment confessed upon said note that l\f rs. Bettie P. Noell denied any knowledge of said note· and after it had been admitted by .J. "\V. Caldwell, an agent of the said Landon Lowry, Rcc.eiver, that he lnww that the signature on that note


was not the signature of the said Bettie P. Noell, and that notwithstanding all the knowledge of these facts and knowing that Mrs. Bettie P. Noe11 was represented by counsel and with· out giving notice to said ('t:C)unsel, he proceeded to get judgment as outlined above.

Your Respondent further avers and charges that the said Landon Lowry, Receiver, is estopped from the bringing of this.suit, as all questions that are involved in the suit brought by him could have been properly adjudicated and decided in the suit brought by March Noell and Others, and the said Landon Lowry could have intervened in said partition suit by virtue of Section 5281, and your Respondent avers and charg· es that the said Landon Lowry, Receiver, had full knowledge of said suit and the sale of said tract of land.

Your Respondent further avers and charges that the said Landon Lowry has endeavored by every me.ans whatsc:k ever to harass your Respondent, first by endeavoring to rep· resent her when she desired other counsel; and that a~ong about the first day of February, a Mr. Davis ,vas sent to your Respondent's home and insisted that she come do,vn to see Mr. Lowry, the ·said Mr. Lowry and Mr. Davis well knowing at the time that your Rsepondent ,vas represented by counsel and that after your Respondent came to town seeking to consult her counsel, and as she entered the office of her counsel, the said Mr. Davis still pursued her and persuaded her not to go to the office of her counsel but to proceed to the office of Mr. Lowry.

Your Respondent avers and charges that the said l\Ir. Lowry is seeking to harass your Respondent and she does not believe it to be the desire of a single depositor of The Bedford

County Bank Incorporated, that such a suit should page 18 ] be brought or that such methods should be used as

have been used by the Receiver in this case. And now having fully answered, your Respondent prays

to be hence dismissed with her reasonab1 e costs in this behalf expended.

· ,V. R. SAUNDERS, p. d.

BETTIE P. NOELL, Bettie P. Noell, Admi.nis~ iraf or of the estate of R. C. Noell, deceased. BETTIE P. NOELL,

By Counsel.


Demurrer and Answer to Bill of Complaint, filed in Court .December 19th, 1934.

The defendants, March Noell, Jack Noell, Peter Noell, Emmitt Noell, Jewel Noell Luck, Bee Noell, Ohera Noell Garrett, Woodrow Noell and R. B. Arrington demur to the said Bill of Complaint and say that same is not sufficient in law.

And not waiving their said demurrer but relying and inr.isting thereon, the said defendants for answer to said Bill of Complaint or to so much thereof as they are advised that it is material that they answer, answer and say:

Your Respondents aver and charge that the said Landon Lowry, Receiver, is estopped from the bringing of this suit as all questions involved in the suit brought by Landon Lowry, Receiver ~ould have been proper~y adjudicated and dC:;cided in the suit brought by March N oeH and Others, which suit is now pending in this Court and. the said Landon Lowry could have intervened in said suit by vi;rtue of Section 5281 of the Code of Virginia, and your Respondents aver and charge that the said Landon Lowry, Receiver had full knowledge of said suit and the sale of said tract of land.

Your Respondents, ,v oodrow Noell and Bee Noell aver and charge that they have purchased the land involved in said proceedings .a11d are endeavoring to support their widowed·

mother and her infant children. page 19 ] Not admitting any of the a:legations of Complain

ant's Bill your Respondents call upon him for strict proof of all and every allegations contained therein.

And now having fully answered, your Respondents pray to be hence dismissed with their reasonable costs in this behalf expended.

"\V. R. SAUNDERS, p. d.

:MARCH ~OELL, JACK NOELL, Pl~TER NOELL, E.Ml\HTT NOELL, ,JEJ"WEL NOELL LUCK, BEE NOELL, OBF~RA NOELL GARRETT, ·woODROW NOELL, R. B. ARRINGTON,

By W. R. SAUNDERS, Counsel.


1935, March R. ( 3 M.) On the motion of the Plaintiff Hunter Miller, a discreet and competent attorney at law, is appointed Guardian ad Litem for the Infant Defendants \Voodrow Noell, Iris Noell, Dock Noell, J. K. Noell and Lousisc Noell; .Inf ant Defendants' Answer, by their said Guardian ad !item, filed and cause set for hearing as to them on Plaintiff's motion.

The answer of the infant defendants by their Guardian ad Litem was not found filed ,,1ith the papers.

At another day to-wit:

Virginia: In the Clerk's Office of the Circuit Court of Bedford County, August 1st, 1939.

A recess decree made .July 30, 1939, by the .J udgc of the said Court in this cause, was this day received by the Clerk of the said Court with the endorsements thereon, and, being· now entered of record in the Current Chancery Order Book of said Court, is in the words and figures following, to-w·it:

page 20 ] "Virginia: In the Circuit Court of Bedford County.

Landon Lowry, Receiver, vs. NOTE FOR DECREE.

Noell. Bettie P ., et als.

This cause came on this day to be heard upon the Bill of Complainant, the Demurrer and Answer of the defendants, Bettie P. Noell in her own right and as Administrat.rix of the estate of R. C. Noell, deceased, and the Demurrer and Answer of the defendants, March Noell, .Jack Noell, Peter Noell, Emmitt Noell, J ewe] Noell Luck, Bee Noell, Obera Noell Garrett, ,v oodrow Noell and R. B. Arrington and was argued hy Counsel.

And it appearing to the Court that certain accounts shou1d be taken in this cause, the Court doth AD,JUDG E, ORDER and DECREE that this cause be referred to Aubrey E. Strode, Jr., a Commissioner in Chanrery of this Court, to take, state and report to the Court as follows:

(1) An account showing, from the examination of the original records in the suit, Noell, March, et als., vs. Noell's Adm 'x., et als., error8, if any, committed in the said suit of


Noell, March, et als., vs. Noell's Adm 'x. et als, and the effect of such errors, if any, upon the suit of Landon Lowry, Re· ceiver, vs. Noell, Bettie P., et als.

(2) Any other account requested by any party to this suit or deemed pertinent by the Commissioner.

But before taking said accounts the Commissioner is to give notice, in writing, to all Counsel of record in this cause, ,and post notice of the time and place of taking such accounts at the front door of the Court House, Bedford, Virginia for a period of five ( 5) days.'' '

''July 30, 1939. Enter.

A.H.H'' Teste:

V. W. NICHOLS, Clerk.

page 21 ] REPORT OF COMMISSIONER

Extracts from a decree .entered at the July Term, 1939.

And it appearing to the Court that certain accounts should be taken in this cause, the Court doth ADJUDGE, OU. DER and DECREE that this cause be referred to Aubrey E. Strode, Jr., a Commissioner in Chancery of this Court, to take, state and report to the Court as follows:

(1) An account showing, from an examination of the original records in the suit of Noell, March, et als, vs. Noell's Adm 'x., et als., errors, if any, committed in the said suit of Noell, March, et als., vs. Noell's Adm 'x., et als, and the effect of such errors, if any, upon the suit of Landon Lowry, Re· ceiver, vs. Noell, Bettie P., et als.

(2) Any other accounts requested by any party to this suit or deemed pertinent by the Commissioner.

To the Honorable A. H. Hopkins, Judge of the Circuit Court of Bedford County, Virginia.

In pursuanGe of a decree of which the foregoing is an ex· tract, the undersigned Commissioner fixed on the 8th day of August, 1939, as the time and his office in Bedford, Virginia, a.s the p1ace for executing said decree. and after having given written notice to all counsel of record in the cause, and post.


ing a copy of said notice at the front door of the Court House, at Bedford, Virginia, for a period of five ( 5) days, a copy of which notice is hereto attached, he proceeded to take said accounts, and begs leave to submit the following report:

FACTS

On December 31, 1933, one R. C. Noell died intestate, seized and possessed of a farm of 1571/2 acres near Montvale, in Bedford County. Noell had mortgaged the farm for $2,-000.00, upon which debt a balance of around $1,890.00 remained unpaid. He also owed a number of unsecured debts among which ,Yas a debt due the Bedford County Bank, Incorporated,

of Montvale. ·page 22 ] Noell left, as his heirs at law, a widow and twelve

children, among whom were Bee Noell, an adult son, and Woodrow Noell, an infant son o! some twenty years.

On January 8, 1934, Bettie P. Noell, the widow, qualified as administratrix of her husband's estate.

On February 2, 1934, ·Bee N 9ell and other of the Noell children instituted a partition suit, naming Woodrow Noell, the remaining Noell children, the widow and administratrix, as defendants, and, alleging that the property was not divisible in kind, prayed a sale and a distribution of the proceeds. The bill alleged there we1·e no liens on the property save the mortgage debt, and that the personal property would probably pay all the debts of the estate, except for the deed of trust debt.

The answer of the widow and administratrix stated that she did not believe the per§3onal estate would be sufficient to pay the debts, and joined in the prayer of the bill.

The land was ordered sold, and at the sale it was bought for $2,150 . .0:0, by one R. B. Arrington, the ·widow's brother, who knew of the debt due the Bedford County Bank, Inc., and that the estate was insolvent. Part of the purchase money was represented by an assumption of the deed of trust debt, and the balance paid in cash, amounting to only enough to pay the costs of the suit and certain delinquent taxes. By" decree of March 2, 1934, the sale was confirmed. T.he Commissioner and Arrington and wife then conveyed the property to Woodrow Noell and Bee Noe 11, who also knew the facts as to their Father's insolvency and the existence of the debt due the Bedford County Bank.


An examination of the record reveals that:

(1) None of R. C. Noell's creditors were made parties to the suit;

(2) No accounts were taken, or directed to be taken therein;

(3) No order of reference was made;

( 4) The administratrix was not required to furnish, and did not furnish, a statement of any of the R. C. Noell debts, nor has she ever settled her accounts.

On March 31, 1934, the Receiver recovered judgpage 23 ] ment against the administratrix for his debt in the

principal sum of $570.00. On November 3, 1934, a general creditor's suit was in

stituted by him, alleging the facts recited above and praying that the property be sold, subject to the deed of trust debt, the proceeds applied to the payment of R. C. Noell's other debts. the administratrix be required to settle her accounts and the previous proceedings be voided with respect to the creditors of R. C. Noell.

To this Bill, the various Noell's demurred, and also asserted the Receiver was estopped to attackthese proceedings in which they had significantly failed to include him or any of the creditors by reason of the fact that he knew of the partition proceedings, but failed to intervene by petition.

ERRORS CONSIDERED ON DEMURRER

The first question to be dealt with is the Defendant's demurrer to the Complainant's bill. Of course in considering this question, it must be assumed that the complainant had no notice, either actual or constructive, of the suit of Noell v. Noell. ·

The complainant bases his contention to have the demurrer overruled upon the following alleged errors in the suit of Noell v. Noell: (1) Although a lien creditor or quasi lien creditor, complainant was not made a party to the suit, llis rights were ignored, and therefore the suit is void as to him under Code, Section 539'i. (2) There was no order of reference, no accounts taken, and the rights of the parties to the proceeds not established before the sale of the property.


(3) The administratrix did not furnish a statement of the debts of R. C. Noell, nor has she ever settled her accounts.

These questions will be discussed seriatim:

FIRST : The complainant first eomplains that he was not made a party to the suit and there appears to be merit in this complaint. It is elementary that a suit binds only the parties to it and if the other parties ·who have an interest in the realty conduct a suit, it does not affect the interest of the omitted party.

The fact that the complainant did have an interest page 24 ] in this realty cannot be questioned. Under the

holding in the case of Heeke v. Allen, 127 Va. 65, 102 S. E. 655, interpreting Section 5397 of the Code of Virginia, all creditors of a decenant are given a quasi lien on all real estate of which the deccdant died seized and possessed for a period of one year. In the opinion in Heeke v. Allen., supra, ,J utlge Martin P. Burks says on page 70 :

"This proviso (the last sentence of Section 5397, not added till the Code of 1887) was added manifestly in the interest of the creditor of the decedant, and gave him a quasi lien on the real estate of the decedant for a period of one year. Nothing the heir or devisee could do within the year could relieve the real estate of the deceda,nt from liability for his debts, and the statute was notice to the world of this fact. So that during this period of one year there could be no such thing as a purchase from the heir or devisee without notice.

It therefore appears that the complainants contention that he has an interest iu the real estate and that his interest was not affected by the former suit of Noell v. Noell is well founded. ,vhether or not this contention was affected by the fact that the complainant had notice of the proceedings of Noell v. Noell, knew· of his rights, but failed to assert the saem, will be further discussed in the consideration of this case on hearing on Bill and Answer.

SECOND: The complainant next complains that no or· dcr of reference was had in the suit of Noell v. Noell and no account of liens to determine the interest of the parties prior to the sale. This was undoubtedly error.

It has been repeatedly l1eld in this State that it is error to decree a .Judjcial Sale of ·1and in both creditors suits and


partition suits before the interests of the parties has been determined, by some means, for the reason that it is necessary to determine the interests of the parties prior to the sale, so

that they may bid intelligently at the sale. From page 25 ] the decisions it does not appear that an order of

reference is necessary, yet the record must show that the interests of the .parties has been definitely settled and established by some means prior to the sale. This may be by order of reference or otherwise. Lucy v. Kelly, 117 Va. 318, 84 S. E. 761.

Quoting from 2 Harrison on ·wms and Administrations, page 928, Section 586 :

'' Perhaps there is no principle better settled by the adjudication both in Virginia and West Virginia than, that it is error to decree the sale of real estate without an ascertainm~nt of all liens and charges thereon, their amounts and their order of priority. It is almost unexplainable that this princip!e has had to be enumerated so repeatedly by the courts and always so uniformly. The cases are numerous; they illustrate each possible form of a charge; debts, advancements, legacies, or any other possil>le charge upon the land. The reason .assig11ed for the rule is that those holding charges upon the real estate should he exactly advised of their rights in order to bid upon the property, if necessary, and that the debtor should not be harassed with a multiplicity of suits.''

The case of Stevens v. McCormick, 90 Va., 735, 19 S. E. 7 42, which 'WaR a. partition ·suit, was reversed and sent back for this error. Quoting from the opinion in this case at page 736 of 90 Va:

'' The Circuit Court determined that the land could not be conveniently divided, and without determining the extent of the interests of the several parties, but expressly reserving that question, ordered a sale, by the decree complained of.

1. Appellants contend, and we think with good reason, that it was premature a11d erroneous to order a sale before ascertaining the extent of the respective interests of the parties. When the sale takes J}alce the parties are entitled to know exactly how they stand, in order that if they desire to bid, they may do sq intelligently, and there is no reason that we can perceive ·why in such a case a simi1 ar rule should not be applied to that which prevails in respect to sales of lands to


satisfy liens; as to which see Cole v. McRae, 6 Rand, 644 and Horton v. Bond 28, Gratt. 815.

page 26 ] The failure of the Court to have an accounting of liens and the interest of the parties determined be·

fore the sale of the land, would unboubtedly have been suf· ficient grounds, if brought to the attention of the Court, by Complainant, or any other interested party, before the ~ale was confirmed, for the Court to be compelled to refuse to ~-m· firm the sale. vVbether or not a person, not a party fo the suit, but with full notice and knowledge of the sale and decree confirming same, mayJ in a collateral attack on the sale, at a later date, complain of this error will be discussed later in this opinion.

THIRD: The last complaint is that the administratrix was not compelled to furnish a list of debts of the decedll1it nor to settle her accounts. Ordinarily, since a personal repre· sentative deals solely with personal property, and not with real estate, there would appear to be no cause to require a personal representative to settle her accounts in a partition suit dealing with the decedwn.ts real property and the liens thereon. This would certainly appear to be a sound view in the case of an estate which is unquestionably solvent and there is ample personal property from which all de hts can be paid. But, as pointed out in the discussion of complainants second contention above, it is essential that the interests of the parties be determined prior to the sale. Since, in the case of an insolvent estate, all debts of the decedan.t become liens on his real estate, it is not conceived how the interest of the parties could be determined before the sett1 ement of the Ad· ministration, page 928 Bowden v. Parrish, 86 Va. 67, 9 S. E. 616; Hoge v. Junkin, 79 Va. 220.

The effect of notice and knowledge of this error will also be further discussed in this opinion.

From a consideration of all these errors and the effect thereof, it clearly appears that, if the complainant had objected to the confirmation of the sale, before a decree was entered confirming the sale, for any of the erro_rs complained of above, the Court would have been forced to refuse to confirm

the sale. page 27 ] It also appears that, in the absence of notice of

the suit of Noe1l v. Noell, the complaimmt is not affected by it and therefore the defendants demurrer must be over-ruled.


ERRORS CONSIDERED ON BILL AND ANS"\VER

The defendant's demurrer having been over-ruled, the case must be now considered as being set for hearing on Bill and Answer. In so considering it, of course everything set out in Defendant's answer must be concluded to be true.

The question is now raised as to whether the fact that complainant who had full knowledge and notice of all the proceedings in the case of Noell v. Noell is estopped to complain, after failing to intervene in that suit to protect any rights that he thought he had.

From an examination of the facts, it appears that the complainant had open to him several" remedies as follows:

(1) He could have instituted a creditors suit to have the estate settled and the land sold before the suit of Noell v. Noell was instituted.

( 2) Under the provisions of Section 5397 of the Code he could allow the land to be sold and then persue the assets in the hands of the heirs.

(3) He could have filed his petition in the suit of Noell v. Noell, at anytime, and complained of the decree confirn1ing the ~a'e, or of any errors that were made in that suit.

In passing, it is not desired to overlook the complainants contention that the heirs elected to sell the land with the lien of this debt still on it and that he elected to bring his suit later to enforce this lien which remained .attached. If an examination of the record of the suit of Noell v. Noell had disclosed that there was any such intention on the part of the heirs to sell the land with complainants lien still on it, then his position might be sound. But on the other hand, the record clearly discloses that the heirs intended to sell, and the pur-

chaser intended to buy, free of liens. From an expage 28 ] amination of the widow's (Administratrix) ans-

wer, in which she states that the personal property will not satisfy the debts, certainly an inference should have been drawn that it was intended to sell the land free of any lien except the first lien which was specifically mentioned, and that the proceeds of the sale, if any. would he applied on decedants debts or other liens in the order of their prio1ity.

It is we'l settled by custom and the decisions in this State, that unless the record affirmatively shows that the purchaser


intends to assume definitely ascertained liens, then the land is sold· free of liens.

Quoting from Bartoll Chancery Practice, Section 356 at page 1104:

EFFECT OF A SALE

By the sale and purchase of the land the purchaser holds the same free of all liens and claims, except dower, or such claims as being of a nature not to be certainly ascertained, the land is sold subject thereto; and the general rule is that such a sale diverts the land of .all liens whether general or specific, and the money is substituted for the land.

No claim asserted or judgment recovered after the sale ]ias any effect upon the land.

It appears that the complainant may have conceived of this ingenious argument in an effort to get out of a bad position that he was put in by having elected the remedy of versuing the assets in the hands of the heirs after sale, but then finding himself in the unfortunate position of being a creditor whose debtor died without assets sufficient to reach and pay his debt, conceived of this argument.

This leads to the final, and what is beHeved the controlling point in this case, and that is whether or not the complainant, with full knowledge of his rights and remedies in the suit of Noell v. Noell is now estopped to complain after having stood by and failed to assert his rights in the manner provided by law.

If, in the present case, a n·efarious scheme had been entered into on the part of the .. heirs of R. C. Noell,

page 29 ] and these heirs had defrauded the creditors out of the proceeds of the sale of the real estate, then no

doubt the sale should be set aside. But nowhere in the pleadings before the Court is there any allegations of such fraud. On the other hand, it appears from the record that the suit of Noell v. Noell, was conducted under the supervision of the Court, and the land sold, after befog well advertised, at public auction, to the highest bidder, a bon~ fide purchaser for value who paid an adequate and fair price for the property. Not a cent of the purchase money went into the hands of an heir and a 11 the purchase money was properly divided in accordance with the proper priority of liens on the land.

LO\vry, Receiver, etc. vs. Noell, et als. 49

Our Courts are loathe to set aside any judicial sale for the very good reason that it tends to prevent bidding at judicial sales and works an undue hardship on any purchaser who bids at such sale. Unless. it can be clearly shown that prejudicial error has been committed, through no fault of the complaining party in speaking later w·hen he should have spoken sooner, then the Courts will not disturb the possession of the property; more particularly ,vhen it is in the hands of a bona fide purchaser who has paid fair value.

It seems to be well settled law in this State as well as other states that the time to complain of errors committed ·in judicial sales proceedings is before the sale is confirmed, and if the complaining party, whether he be a party to the suit, or a stranger to the suit with knowledge and notice of the suit, fails to comp1ain before the sale is confirmed, he is estopped to complain thereafter. A few of the authodties on this subject will be set out below:

TITLE ESTOPPEL

16 Cyc. page 764, 2 (B) JUDICIAL SALE (1) In General. ·when a person having title to or an interest in property lo10wingly stands by and suffers it to be sold under a judgement or decree, without asserting his title or right, or making· it known to the bidders, he cannot ~fterward set up his claim; so too if he has knowledge of an irregularity in the proceedings, but permits the sale to be made without objec-

tion, he is estopped to contend its validity afterpage 3J ] wm·d. Ponder v. :Mosely, 2 Fla. 207, 48 Am. Dec.

194, Lentz v. Chambers, 27 N. C. 587, 44 Am. Dec. 63, Pease v. Ritchie, 132 Ill. 638, 8 L. R. A. 566.

An extensive annotation in which numerous authorities on this point arc collected, is contained in 50 A. L. R. at page 671. The following is quoted from that annotation:

'' rrhe principle that an individual shall not be permitted to take advantage of his own wrong, and after having induced another, either by tacit acquiesence or express words, to expend his money in the purchase of land or personal property, deprive such person of the benefit of his purchase by setting up a supel'ior title in himself, is wen established, in Equity. Philhower v. Todd, 11 N . • T. Eq. 312.


Quoting from 19 American Jurisprudence, Title Estoppel Section .91, pag·e 7 49:

"The doctrine of estoppel as to real property for failure to disclose title or interest therein by one not a party to a transaction was fully established in England before the end of the seventeenth century and has frequently been applied since then. The earliest American cases which reach the conclusion that an estoppel may be predicated under such circumstances date from the end of the· eighteenth century and shortly after the beginning of the nineteenth century. The doctrine has been stated in a similar form in a leading American case by Chancellor Kent thus: 'There is no principle better established in this Court. nor one founded on more solid considerations of equity and public utility, than that which declares that if one man knowingly, though he does it passively, by looking on, suffers another. to purchase and expend money on land under an erroneous opinion of title, without making· known his claim, he shall not afterward be permitted to exercise his legal right against such person. It ,vould be an act of fraud and injustice and his conscience is bound by this equitable estoppel. "Qui tacet consentire videteir.' Qui protest et debet verari, jubet." Annotation 50 A. L. R. 672.

This principle has been approved by the Virginia page 31 ] Court of Appeals in the case of Patterson v. Patterson, (19'26) 144 Va. 113, 131 S. E. 220. This was a case in which an executor sold a certain tract of land under authority of a certain clause in his testator's will that he, the executor, thought gave him authority to sell the land. Later, the descendent of au heir set up a claim to the land on the ground that the executor had no authority to sell the land. It appeared that the heir knew of the executor's intent to sell the land and in fact stood by and watched it sold without voicing any objection. The Court of Appeals held the heir and his descendants estopped to claim any interest in the land by the action of the heir in standing by and consenting to the sale. Quoting from the opinion in this case we find:

'' If a man knowingly, though passively, by looking on, suffer another to purchase land for valuable consideration, under an erroneous impression of title, without making· known ]1is claim he will not be permitted thereafter to exercise his legal right against such person. Bigelow on Estoppcl 6th Edition p. 657."


As said in 2 Harrison on Wills and Administration Section 6()4, ( 1) at page 951 : '' The time to make objections to a judicial sale by a party to a suit, is before confirmation, and if he fails to do so, he cannot afterward be heard thereon, unless he was prevented through fraud or other adventitious circumstances beyond his control.'' This rule is universally applied to parties to a suit; the authorities also hold universally that it s1lou1d apply ·with equal vigor to a stranger ~o the suit who has notice and knowledge of the suit, and no reason can be conveived why it should not so apply. 16 Cyc. p. 764, supra.

Viewing· this case as a whole, no reason appears why this . principle, so amply" supported by the authorities above set out,

should not be applied. The complainant had ample opportunity to inter""J"ene by Petition to protect any rights that he thought he had at any stage of the proceedings in Noell v.

Noell. Even at the time complainant filed his Bill })age 32 ] in the later suit of Landon Lowry, Receiver v.

Noell, since the suit of Noell v. Noell was still on the docket, he could have intervened by Petition, and accomplished anything that a new suit could accomplish, and save the unnecessary costs and expenses of the additional suit. Why be did not intervene by Petition does not appear from the record. But since he did not, he remains in the unfortunatH position of a creditor whose debtor died without assets sufficient to- pay bis debt and by his slumbering when he should liave spoken is estopped to proceed further.

CONCLUSION

Your Commissioner rerommends that the Defendants Demurrer be over-ruled and the Complainants Bill be dismissed as a result of hearing on Bill and Answer.

No other accounts were requested or deemed pertinent by your Commissioner. · "r1·ittcn notice of the date of filing this report was mailed to all counsel of record in this case prior to the date of filing same in the Clerk's Office.

Respectfully submitted,

Cornmis~ioncr 's Fee ~35.00.

AUBREY E. STRODE, .Jr., Commissioner in Chancery Circuit Court ·of Bedford County.


Exceptions to Commissioner's Report, Filed August 19, 1939.

To the Honorable A. H. Hopkins, Judge of the Circuit Court of Bedford County:

The undersigned; Landon.Lowry, Receiver of the Bedford County Bank, Inc., complainant in the above entitled cause excepts to the finding of Aubrey E .. Strode, Jr., Commissioner in Chancery, filed on August 11, 1939, to whom this cause was referred by decree entered herein on the 29th day of July, 1939, and which said report bears date on the 11th day of August, 1939, in the following respects, to-wit:

(1) That said Commissioner does report that the undersigned complainant is estopped to file this suit and to secure a sale of the tract of 157:lh acres of land of which one R. C. Noell died seized and possessed, for the purpose of distributing the proceeds thereof among the creditors of the said R. C. Noe1l, whereas in truth .and in fact your said complainant was not a party to the partition suit of Noell v. Noell formerly pending in this Court, no order of reference was entered therein, no account of the debts of the said R. C. Noell was taken therein, no duty devolved on said complainant to intervene therein under such circumstances, and with full knowledge of the facts and of their rights, the defendants to this suit deliberately instituted the said chancery suit of Noell v. Noell, lately pending in this Court, and elected to omit there· from as parties or otherwise the undersigned complainant and the other creditors of the said R. C. Noell. deceased, and did thereby deliberately elect to leave undetermJned the ri!?,'hts of the creditors of the said R. C. Noell with respect to said tract or parcel of land and to leave unaffected the interests of the said creditors of the said R. C. Noell therein.

(2) That said Commissioner does report that the undersigned complainant is estopped to file this suit and to secure a sale of the tract of 15711:z acres of land of which one R..

C. Noell died seized and.posseRRed, for the purpose page 34 ] of distributing the proceeds thereof among the · erecliton.; of the said R. C. Noell. where!-ls in truth and in fact. and in addition to the grounds set forth in Grounds of Exception No. 1 above. t]1e said tract or parcel of 1571/:~ acreR of laml w~s purchased by one R. B. Arrington, a l)l'other of Bettie P. Noell. the widow and administratrix of R. 0. Noell, deceaf:ed, for an inadequate price, as the under-


signed is prepared to show, sufficient only to pay the mortgage of the GreenlJrier Joint Stock Land Bank of Lewisburg, ,vest Virginia, certain delinquent taxes· on said land and the costs of said suit, the said R. B. Arrington well knowing· that the creditors of the said R. C. Noell, deceased, were not parties to said suit or their interests directly or indirectly represented therein or affected thereby; and by the direction of the said R. B. Arrington the said land was forthwith conveyed, without additional consideration, to Bee Noell and Woodrow Noell, heirs of the said R. C. Noell and parties to said suit, the said Bee Noell Qeing 23 years of ag·e and the said Woodrnw Noell being 20 years of nge, both of whom well knew the facts hereinabove recited, and who now hold said land, alleging· that the unpaid debts of their :father, the said R. C. Noell, deceased, which are liens upon said land. cannot be collected therefrom by reason of the partition suit of Noe11 v. Noell from which they had elected to omit the R.. C. Noell creditors.

1Vherefore said complainant doth except to the said report of the said Commissioner and prays that his said exception may be sustained and that the said report may be corrected iii the manner herein set forth and that the claim of the said defendants that the said complainant is estoppecl to institute this suit, as set foth in the answer of the said defendants, be overruled and tho cause proceeded with.

LANDON LOvVRY, Receiver of Bedford County Bank, Inc.

By Counsel. W"JLLIAM ,v. BERRY, JR., p. cl.

page 35 ] In the Circuit Court of Bedford County, Virginia.

LANDON L.OWRY, Receiver, Bedford County Bank, Inc. vs. BETTIE P. NOELL, et als.

OPIKTON OF ~rffrn COURT

The Court deems it proper to state that after it had decided this case, and had expressed the purpose to support its decision by a written opinion, counsel for the respondents submitted to the Court a memorandum which so nearly expressed the Court's views that this memorandum, with a few modifications, has been adopted by the Court as an expression of its opinion.


This is a chancery suit brought by Landon Lowry, Re· ceiver of the Bedford County Bank, Inc., v. Bettie P. Noell, in her own right, and as administratrix of the estate of R. C. Noell, and the children and heirs at law of said R. C. Noell, named in said bill of Complaint, and, further, against R. B. Arrington, Charleston National Bank, successor to the Union Trust Company, a corporation, and the Greenbrier Joint Stock Land Bank of Lewisburg, vVest Virginia, defendants.

The suit appears to be general lien creditor's suit. Tho first paragraph of the bill of complaint is as follows:

"Your complainant, Landon Lowry, Receiver of the Bedford County Bank, Inc., and aU of the other lien creditors of the estate of R. C. Noell, who may come into this suit upon the condition of contributing their ratable proportions of the costs thereof, respectfully shows unto Your Honor the follow· ing facts" etc.

The bill of complaint was filed November 3, 1934. The infant defendants, heirs .at law of R. C. Noell, answered by Guardian ad Litem, an order of pubHcation was awarded against the non-resident defendants, who failed to answer. and the cause ,vas set for hearing as to them.

On December 19, 1934, the adult heirs, at law of R. C. Noell and R. B. Arrington filed a joint demurrer and answer to the bill of complaint. In this answer the said defend

ants, without waiving their demurrer, charg~

page 36 ] '' That the said Landon Lowry, Receiver, is estop· . peel from the bringing of this suit as all questions

involved in the suit broug·ht hy Landon Lowry, Receiver, could have been properly adjudicated and decided in the sui~ brought by March Noel1, et al., which suit is now pending in this eourt. AJ1d the said Landon Lowry could have intervened in said suit by virtue of Section 5281 of the Code of Virginia, and your respondents aver and c!iarge that the said Landon Lowry, Receiver, had full knowledge of the suit, aud the sale of said tract of land.''

The. answer does not admit any of the allegations or complainant's bill, but calls '' for strict proof of all and every allegation contained therein".

The foregoing answer of 1Iarch Noell, et al, was filed, as stated, on December 19, 1934, pursuant to a decree entered on the same date allowing· said answer to be filed, which decree

Lowry, Receiver, etc. _vs. Noell, ct als. 55

is found in Chancery Order Book 25, page 477. On the same day, namely, December 19, 1934, another demurrer and answer by Bettie P. Noell, in her own right, and as administratrix of the estate of R. C. NoeU, appears to have been filed. There is an endorsement on the coYer of this demurrer and ans,ver, evidently made by the Clerk: '' Filed in Court December 19th, 1934.''

There is precisely the same notation, in the same hand· writing, on the cover of the answer filed by March Noell, tt al, the filing of which ans,ver, as has been stated, is supporten by a decree of court duly entered in the Court's Order Book. But there is no decree of court authorizing the filing of the answer of Bettie P. Noell. in her own right, and as adminis· tra trix of R. C. Noell.

It seems evident that this last mentioned ans,ver was presented at the bar of the court, that it has been treated as an answer du!y filed througho1.1t the proceedings, and that tho failure to support the filing of this answer of Bettie P. Noell, etc., by a formal decree of court was an inadvertence. It is thought proper, therefore, that a decree nunc pro tune should now be entered, permitting- and co11..foming the filing of the

said answer of Bettie P. Noell. page 37 ] The bill of complaint is a lengthy document. It

sets forth, with great detail, every allegation pert· inent to the case disc1osed by the l)ill, and prays, with pre· cision, for the relief desired. It seems unnecessary to refer in detail to all of the allegations of the receiver's bill. Cei·· tain allegations arc, hmvever. of moment in re~ation tu the conclusions reached by the Court.

Among these allegations of the bill are the following:

That R. C. Noell departed this life on December 31, 1932:, survived by his widow and hvelve children, of whom seve11 were adtds and five infants; that on January 8, 1934, the said Bettie P. Noell, widow, qualified as administratrix of the personal estate of R. C. Noell;

That ou March 31, 1934, Landon Lowry, Receiver of the Beclf ord County Bank, Inc., recovered judgment agai11st Bet· tie P. Noell, Administratrix. in the sum of $570.00, with interest, from :May 15, 1933, until paid, and the costs of the pro· ceeding, including 15% additional as attorneys' fee, upon an instrnmeut waiving the homestead exemption;

That said R. C. Noell died seized of a certain tract of land c>ontnining lfi71/:.! ~wres, "situated near l\fontva 1e, in Bed-


ford County, Virginia"; that the indebtedness of the said R. C. Noell, to the Bedford County Bank, Inc., constituted a valid and subsisting lien on said tract of land; that the said tract of land is all of the real estate of which R. C. Noell was seized at the date of his death; that the personal property owned by said decedent is entirely insufficient to pay off and discharge the liens thereon, or the debts due by said decedent;

That at the time of his death the said land was subject to a cert.a.in deed ol: trust dated ,July. 1, 1925, and recorded in Deed Book 144, page 54, executed by said H,. C. Noell and Bettie P. Noell, llis wife, to the Union rrrust Company, a corpo:ration of Charleston, "\Vest Virginia, as Trustee, to secure a debt due the GreeniJrier Joint Stock Land Bank of Lewislnirg, Vl est Virginia, amounting to $18D2.02, with several instalments of interest overdue, as of ,January 1, 1934; that the

loan secured by said deed of trust was on the amorpage 38 ] tization plan, and that this deed of trust lien was

a. valid lien on the aforesaid real estate at the date of the death of said decedent. The hill of complaint then proceeds to set forth these additional facts:

That on the 2d day of February, 1934, March Noell, .Jack Noell, Emmitt Noell, Pete Noell, ,Jewel N. Luck, Bee Noell and Obera N. Garrett, filed their bill in chancery in the Clerk's office of tl1e Cireuit Court of Bedford County, Virginia, against Bettie P. Noell in her own right, and as administratrix of said estate, and ag·ainst the infant heirs at law of R. C. Noell, in which bi]} it was alleged that the said R. C. Noell died seized of the aforesaid tract of land described as being .,,, situated in Li shorn District, near :Montvale, in Bedford County, Virginia, containing 157 lh acres. more or less, adjoining the lands of J. l\I. Luck, ll. L. Tankersley, Lance De,vitt, et al;" that the said land was subject to the aforesaid deed of trust in favor of the Greenbrier Joint Stock Land Bank, already referred to; that tlle said deed of trust and taxes for the yea rs 1931, 1932 and 1933 "were the only liens on said real estate''; that said tract of land could not be conveniently partitioned in kind among the heirs -at law of R. C. Noell, that the entire tract could not he allotted to any party who would accept it and pay therefor to the others such su111 of money as their interests would entitle them to; that the interest of all parties would be promoted by a sale of the entire tract, and a division of the proceeds among the partiei-i entitled thereto; and that an a l]otmcnt of part and sale of the


residue could not be had among said parties; tliat it would be to the interest of all parties if the said land should be soU subject to the balance due to the Greenbrier Joint Stock Land Bank.

There is the further allegation that the prayer of the bill in Hie said partition suit was that the said ·widow and infant parties might be made defendants to the bill and be required to answer the same, the infants hy Guardian ad Litcm, that a sale of the said land might he directed, and that the proceedsmight be distributed among the parties entitled thereto; that all proper accounts be ordered and taken, and that complain-

ants might be granted all further relief, general page 39 ] and special, as their case might requirG.

The said receiver's bill of complaint further alleges that the said Bettie P. N ocll, in her o-wn right, and as Administratrix, filed her answer to the said hill, admitting the allegations of the bill of complaint, that she did not believe there was sufficient personal estate to pay the debts, that she was entitled to one-third life estate in the surplus arising from the sa1e of the farm after payment of the deed of trust debt aforesaid, and that she concurred in the prayer for the sale of the property, either publicly or privately, in order to effect the partition thereof;

That ·wmiam Eubank, as Guardian ad Litem, filed an answer for the infant defendants; that on February 20, 1934, the cause ""as heard on the bill or complaint and affidavits filed therewith (which affidavits are to the effect that the land could not be conveniently partitioned in kind among the parties entitled) upon the answer of the infant defendants, upon the answer of Bettie P. N oc1l in her o,~-n right. and as Administratrix, and that upon the allegations of the hill, the ·court being of opinion that the real estate could not he partitioned in kind among the 8aid romplainants, etc., the said tr.act of land should be sold suh,ket to the deed of trust aforesaid, aml that "\V. R. Saunders wns appointed a commissioner to sell the same, subject to said deed of tmst;

That the said ·w. R Sam1ders, as eonnnissioner, executed bond m; required by said decree, that at the :March term, rn:1_4, of said Court, the said "\V. R. Saunders, Commissioner, filed 11is report. from which it appears that he gave bond as required by the deere(~ of sale, and that, "after du1y advertising tlle time, ternu; and place of sale, and after having in all other rei-:pects complied with the terms ol' said decree, he ol'fored said


land for sale, on the 5th day of March, 1934, in front of the courthouse of Bedford County, Virginia, by way of public auction, at which sale one R. B. Arrington, being the highest bidder, became the purchaser thereof at the price of $2,150.00, that said purchaser had elected to pay the said purchase price by the assumption oi: the aforesaid deed of trust debt of $1,-

892.02, with interest from January 1, 1934, and by page 40 ] the payment of the balance of $257 .98 in cash'' ; • That the said Commissioner further reported "that said sale was well advertised and was well attended, and he recommended that the above sale be confirmed and that the court direct that said property be conveyed to R. B. Arrington or to whom he might in writing direct, subject to the above deed of trust'' ;

'That by further decree entered in said cause on d10 6th day of March, 1934, the report of said vV. R. Saunders, Commissioner and the sale therein mentioned ,vere approved and confirmed, and the said commissioner was directed to collect from R. B. Arrington the sum of $257.98, and out of the same to pay the costs of the suit, the taxes upon the real estate, and an attorney's fee of $75.00 to himself; that by deed bearing date April 24, 1934, recorded in the Clerk's Office of Bedford County in Deed Book 168, page 472, the said "\V. R. Saunders, Commissioner, on behalf of the heirs at law of R. C. Noell, deceased, R. B. Arrington and wife ( the said R. B. Arrington having so directed) conveyed the said property to ·woodrow Noell and Bee Noell.

It is further alleged that the complainant-receiver was not made a party to said suit of March Noell, et al v. Bettie P. N oe.l, et al; t;hat the other creditors of the said R. C. Noell were likewise not made parties to said suit; that no order of reference was had in said cause to ascertain the liens on said · real estate, and their relative priorities; that the said Bettie P. Noell had not paid any of the debts against the estate, that she-had not settled her accounts as Administratrix, and that "the said proceedings bad in the said suit of :March Noell, et al v .. Bettie P. Noell, ct al, are utterly void and of no effect, and amount to a mere nullity insofar as the rights of your cornp!ainant as a creditor of tho estate of R.. 0. Noell, d,~ceased, are concerned, and insofar as the rights of the other ,ereditors of the said R. C. Noell, deceased, are concerned.''

It may he stated that nowhere in the bill of complaint are the parties referred to as the other ereditors designated, nor


does it appear that any other ereditor has joined with the receiver in objecting· to the validity of the sale made

page 41 ] in the Noell partition suit. · It is further alleged that all of the parties to said

suit had positive lmowledgo of the fact that R. C. Noell, at the time of his death, was indebted to the Bedford County Bank, Inc., "tha t the said Bettie P. Noell and said R B. Arrington discussed with your said complainant at length the said indebtedness prior to the qualification of the said Bettie P. Noell as Administratrix of the estate of R. C. Noell, deceased''; and '' that acting upon the advice of your said complainant ( the receiver) in his capacity as an attorney at law, the said Bettie P. Noell, on the 8th day of .January, 1934, qualified as the Administratrix of the estate of the said R: C. N ooll, deceased; that R. B. Arrington is a brother of the said Bettie P. Noell, and unc1e of said Woodrow Noell and Bee Noell.''

Thero are further recitals which seem to have been covered by recitals already made in said bill of complaint, after which recitals follow the foi.nal prayers of the bill and the prayer for ro·ief, which is important to set. forth, namely, "decree the proceedings had in the chancery suit of March Noell, et al. v. Bettie P. Noell, Administratrix of tho personal estate of the said R. C. Noell, deceased, and others, to be null and void and of no effect, and to amount to a more nullity insofar as the rights of your complainant, as a creditor of the estate of the said R. C. N ocll, deceased, are concerned, and insofar as the rights of the other creditors of the said R. C. Noell are concemecl; that the said real estate whereof the said R. C. Noell died seized and possessed may be directed to be solcl under a proper decree of this court, and that the proceeds which may be derived therefrom may he first applied to the payment of the costs of this suit, including a reasonable fee to complainant's attorney for instituting and conducting thi~ suit, and that the residue thereof be applied to the paYJ.11ent of the debts dne by the said R. C. Noell, as ascertained by the report of the said Commissioner in Chancery and particularly that the debt of your complainant may be paid out of the proceeds of the sale of the said real estate, and that any residue of the proceeds of said sale, after the payment of said

em;ts, attorney's fees, and debts clue by the estate page 42 ] of the said R. C. Noell, deceased, may be paid over

to the 1wo1wr parties entitled tlwreto.


rrHE COMPLAINANT, LANDON LO"WRY, RECEIVER~ IS AN OFFICER OF THE COURT BY THE

COURT'S APPOINTMENT

This case ha~ been elaborately argued before the Court, ·hut the status of tho complainant has not been stressed in any brief filed before the court. It seems both appropriate and important to understand that the complainant, Landon Lowry, Receiver of the Bedford County Bank, Inc., is not a litigam in the ordinary sense, but that he is in reality an arm of thl1

court, an officer of the court.

It may be propPr to quote from the case of Deckert v. Chesapeake \Vestcrn Company, 101 Va. p. 812, as follows:

"By his appointment the receiver becomes an officer of the court, and is required to give bond and security for the faithful discharg·e of his duties; he is subject to the direction and control of the court, and entitled to its protection. Throug·h his agency the court becomes invested ·with possession of the property, with powe1~m1d authority to preserve it from waste and destruction; to secure and collect rents, issues and profits, and to make such orders touching the same as may best promote the interests of ·an parties concerned.''

The above quotation from the opinion of the Supr<~mc Court of Appeals of Virig11ia is in harmony with the general hody of the law as to receivers. :b..,rorn 23 R. C. L. p. 7 and 8, Section 2, the following quotation is taken:

'' Generally speaking, a receiver is not an agent, except of the court appointing him; the very term receiver negatives such an idea. He is merely a ministerial officer of the court, or, as he is sometimes cailed, the haml or arm of the court. He stands in an indifferent attitude, not representing the p:aintiff or the defendant, but really representing the court, nnd acting under its direction, for the benefit of all the parties in interest. x. x His acts and possession are the acts and posRession of the court. x x The 1Jartics to the litigation have not the least authority ovPr him; nor have they any right to de-

termine what liabilities he may or may not incur. page 43 ] His authority is derived f,;olely from the act of the

court appointing him, and he is the subject of it~ order only.''

The special aspect of this case. which grows out of th(~ fa('t that the complainant is a l'erei n~r appointed by this

Lowry, Receiver, etc. vs. N oeU, et als. 61

court, imposes upon the court a duty and a prerog·ative somewhat broader than, and sommyhat different from, the case of a litigant who is not '' subject to the direction and control of the court," a.s is true in the case at bar.

In this particular pro-ceeding, the receiver is attacking other proceedings in chancery in this court. He is asking for a decree from this court annulling other decrees of this court in the partition suit which he is attacking.

!furthermore, it is significant that in the receiver's bill of complaint he does not allege that he did not have notice of the pendency of the Noell partition proceedings. It seems reasonable to assume that he did have such notice, and for several reasons.

In the first place, the receiver alleges, as has been noted, that the Noell land which was the subject of the partition suit was situate near Montvale. The b~nk of which the complainant, Landon Lowry, is receiver is located at Montvale. Furthermore, it is a matter of record in the receivership proceedings in this court-and of this the court may take judicial notice-that J. \V. Caldwell has been appointed by decree of this court assistant to the receiver, that said Caldwell resides at Montvale and that in the discharge of his duties he is occupying the bank building in which the Bedford County Bank did business.

It seems inconceivable. therefore, that the receiver could have failed to know of the bringing of the Noell partition suit and of the pending of said suit when the receiver, on March 31, 1934, obtained judgment against R. C. Noell's administratrix. '.L1his inference is strengthened by the allegation in tbe receiver's bill, hcrcinbefore quoted, that, even prior to tbe qualification of the administratrix, she and her brother, R. B.

Arrington, '' had discussed with your said compage 44 ] plainant at length the said indebtedness,'' and that

'' acting upon the advice of your said complainant in his capacity as an attorney at law," the said Bettie P. Noell, on the 8th day of January, 1934, qualified as administratrix.

As the receiver alleges that the Noell partition suit was not brought until February 2. 1934, it thus appears from the receiver's bill of complaint that he was in personal touch and pen,onal conferenec both with Mrs. Noell and her brother, R. B. Arrington, even before the partition suit was brought.

And, even assuming, for the moment, the remote possihility that the rceefrer, with the facts l1efore him herein re-


cited, yet did not know of the pendency of this partition suit, it seems in1possible to continue such as assumption in the face of the further allegation of receiver's bill that the proceedings in the Noell partition suit show· that the sale of the land for partition was duly advertised, as to the time, term~ and place of sale, that the sale 'Nas at public auction in front of the cou l'tlwuse, 011 March, 5, 1934, and that said sale was well advertised and well attended.

·with the receiver's admitted close touch with said Bettie P. Noell and R. B. Arrington, her brother, even before the partition suit was brought, with the re<~eiver's assistant, J. ,v. Caldwell, residing· at :Montvale, in the immediate vicinity, of the land involved, the same being the residence of the N oells, and with the office of the receiver at the scat of the courthou.se, and only comparatively a few yards therefrom, there seems to be no room whate.ver to doubt that the rec;eiver know of the appointed time, place and terms of the sale of the Noell land in ample time to have intervened in the proceedings ior the assertion of the claim which he now seeks. to assert. in a separate suit, after the sale has been made and confirmed in the Noell partition suit. ·

The court, as already indicated, conceives that under the law· it has, not only the authority, but the duty, to supervise and discharge of a receiver's functions. It is not intended, how.ever, to imply a criticism of the receiver by reason of his

institution of this suit to avoid the proceedings in page. 45 J the suit of Noell, et al v. Noell, ct al, since the re

ceiver no doubt thought he had authority to institute his suit.

,v e now come to a consideration of the issues raised by the two answers fi1ed in the instant ca~e hy the adult N oeil heirs and R .B. Arrington on the one part, 'and by Bettie P. Noell in her own right, and as administratrix, on the other part. In each of these answers it is charged that the receiver had full knowledge of the partition suit and of the sale therein made. that he could and should have intervened in said suit under the provisions of Section 5281 of the Code of Virginia, and that, having failed to do so, he is now estopped to hrh!g his suit to annul the proceedings in tho Noell partition suit.

~Phis contention seems to be meritorious in equity, and sound in law.

It is proper to recall that the bill of Lowry, Receiver v. X oell, et al, was filed N ovemher 3, 1984. ':tihe tw-o answers re-


ferred to were both filed in court on December 19, 1934. Shortly thereafter counsel for respondents filed a brief in opposition to the right of the receiver to maintain his suit. The 1;eceiver asked indulgence in the preparation of his brief, which was granted by the court. Four years or more having passed without the filing of a reply brief by the receiver, no motion to speed having been made by respondents in the interval, the court appointed an attorney for the receiver with instructions that a brief he prepared, in order that the allegations of the receiver's bill of complaint mig·ht be maturely considered, after full argm~ient. A studious, and thorough brief was :filed by the attorney so appointed, to which the respondent's replied. The court then refened the cause to Aubrey ID. Strode, tT r., Commissioner in Chancery for certain accounts which it. was thought. might clarify the issue. The Commissioner filed his report on August 11, 1939, to which report the receiver, by counsel, filed exceptions.

During all this time,. and during all these proceedings, there has been no denial hy the rec.eiver of the allegations of the two answers referred to. It must, therefore, be conclusive-

. ly presumed that the allegations of these answers l)age 46 ] are true, namely, that the receiver did in fact

know in advance of the time, place and terms of the sale of the Noell land for partition, and that he did in fact stand by a.nd permit the Noell Partition suit to proceed to its conclusion without uttering a protest or taking any step to assert. the debt which he is now seeking to assert in the pending suit as the basis of a complete annulment of the whole proceedings in the Noell partition suit.

Assuming these undisputed facts we face the provisions of Section 5281, of the Code, which are invoked by the respondents. The section is as follows: ·without quoting the statute verbatim, except that portion of section 5281 which is specially pertinent, it may he said that the general purport of the statute, as is well known to the profession, is that when partition cannot be coi1veniently made the entire subject may be allotted if any party will aceept it and pay to the other parties such sums as are due them, or there may be in a proper case allotment of part and sale of the residue, but that, when none of these methods are feasible, the entire subject may be sold and the proceeds distributed among the parties entitled. rrhen follow:-; tlw pertinent portion of this statute in the following. quote<l words:


'' taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceas·ed person's part applied according to the rights of such creditors. And when there are liens by j,nclgmemt or otherwise on the vnterest of a:ny party, the coi1,rt 'IJHf.:lJ, on the Jletition. of any person holding a lien, ascertain the liens, and apvly the dfo-idend of s-nch party ,i,,11, proceeds of sa.le to the discharge thereof, so fur as the swme 1nay be necessary.''

(Underscoring supplied.)

It seems proper, further, to call attention to Section 5279 of the Code whieh confers jurisdiction in suits for partition. This seetion is as follows:

"Tenants in conunon, joint tenants, and coparceners shall be eornpe1Iable to make partition; and a Uen crecli

page 47 J tor or any owner of undivided estate in real estate may also compel partition for the purpose of sub

jecting- the estate of bis debtor or tl1e rents and profits thereof to the satisfaction of his lien. Any court having general equity jurisdiction of the county or corporation wherein the estate, or any part thereof, is, shall have jurisdiction in cases of partition. and in the exercise of such jurisdiction may take cognizance of all questions of law affecting the legal title that may arise in any proceeding, between such tenants in common, ;joint tenants, coparceners and lien creditors."

It seems evident, therefore, that the partition statutes in force in Virginia contemplate, not merely the exercise of general equity jurisdiction in the partition suit, but particularly contemplate the adjustment of, and ·the provision for, the payment of liens.

It seems within the bounds of a reasonable construction of Section 5281 that the above quoted provision authorizing a lien creditor to file a petition constitutes nothing short of an invitation to all persons having liens to assert against land which is in process of sale for partition, to come forward and by petition to intervene in the partition suit, with every opportunity provided for the protection and satisfaction of the rights of such lien creditors insofar as the proceeds from the sale of the land may make possible.

Even if there were no such provisions as we find affirmatively set forth in the statutes, it would be quite compatib1e with the general equity jurisclietion of a court of chancery,


which avoids a multiplic.ity of suits in all cases, and which seeks to do complete justice in every pending suit, to take cognizance of any and every claim, whether by lien or otherwise, which a claimant may wish to assert.

Thus it would appear, assuming as the court must assume, that the receiver· of the Bedford County Bank had actual notice of the pendency of the Noell partition suit, that he stood by, and permitted the partition suit to proceed to the point of

a pub~ic sale of the subject of partition, and to the page 48 ] attainment of the objects for which such suit was

brought, without accepting the invita.tio11 of the statutes to intervene and assert the claim of the Bedford County Bank; and that after the objects of the Noell suit had been accomplished, while it was still upon the docket, in fact very shortly after the sale of the Noell land had been made by the Commissioner, the receiver brings this separate suit for the assertion of a claim which could have had full protection in the original partition suit.

In the light of these faets, the Court does not feel that it can sanction the receiver's suit. It is no doubt true that the land sold for a price ·w-hich would have been very inadequate. measured by average economic standards. The Court may know judicially that when this land was sold a ,vorld-wide depression prevailed, almost without precedent, with the result that land values had vanished everywhere. But the sale appears to have been fairly made under the conditions which prevailed, and it is not thought that if a second sale had been ordered pursuant to the prayer of the receiver's bill, a better price would have been obtained. And if a better price could have been obtained by the co-operation of the receiver of the Bedford County Bank, it would seem that there was a duty on the part. of the receiver to of fee such co-operation by intervening in the pending suit pursuant to the provisions of the partition statutes above quoted.

It has been decreed by this Court that the land in question was offered for sale after first being well advertised; that the sale was well attended, and brought a fair market value. The hill does not allege that the land did not bring a fair market value; it does not allege fraud. T am aware that under some C'ircurnstances, and on rare occasions, a private sale may be more adYantagous to the parties, but I am also aware that there is no better method of deterrning tl1c value of real est.ate than to have same propel'ly advertised nnd sold at public


auction. The Court, therefore, has before it the strongest proof adducible not only that the land sold for a fair market value, but also that if the land had been resold within a rea-

sonable time thereafter, there would have l,een no page 49 ] possible equity for the receiver. It would, there-

fore, follow·, that if the land should now be resold at a price in excess of the original price it would be due either to the increase in -value occasioned by the delay of the receiver, or by improYements ma~le on the property subsequent to the original sale. lt seems to me that a statement of the facts is sufficient ·to convince the impartial mind that there is, and never has been, any equity in this suit.

The fact that demurrers to the receiver's bill of cumplaint have been filed by respondents has not been overlooked. The com:t reserves action on the questions rnised by tliese dedemurrers, should such action become necessary, which from the present outlook seems unlikely.

In the view which now controls the mind of the Court, it appears that the receiver, an officer of the court, has filed a bill, the prayers of which, by reason of the facts and the pleadings herein referred to, could not be granted without doing injustice to innocent persons who are parties to the Noell partition suit, and without giving· judicial sanction to the inactivity of the receiver, when he should have been active, to bis failure to intervene, while there ,vas time and opportunity and legal rig·ht so to do, and knowledge on his pa.rt, during the progTess of the Noell partition suit. As before stated, no criticism of the receiver is to he implied from the failure of the court to sanction his views as expl'essed in his hill of complaint.

The aetiou of the court proceeds merely from what is conceived to he the 'judicial prerogative to supervise, to direct and to control the functions, the actions and the proceedings of its officer, a reeeiver appointed by the court.

It would be possible to support the court's conclusions upon other µ;rounds, notably upon the grnund of estoppel, ap.Plicablo to any litigant and in principle no less applicable to a receiver. In the briefs of counsel issue has been joined on still other questions of lmv, ·which counsel have argued at length.

It seems, however, unnece~sary to prolong this opinpag-e 50 ] ion by embarking upon the discussion of legal


questions raised in the briefs when in the court's view the instant question is whether the proceeding· brought by an officer of the court shall receive the sanction of the court.

But it may be said that in reaching its conclusion the doctrine of estoppel has strongly influenced the judicial mind. This doctrine, applicable to litig·ants who sue in their own right, seems yet more applicable to the case of a complainant whoso functions arc under the direction and control of the court.

The doctrine of estoppel, as applied to the case at bar, has a settled place in the law. The rule may be sustained by very many decisions of the 8upreme Courts of Virg'inia and vVest Virginia collected in 4 Digest of Va .. & W. Va. Reports (Michie), p. 220, Section W. The principle is well stated in Herman on Estoppol and Res J udicata, Vol. 2, Sections 1061 a.nd 1063, cited by the West Virginia court in Despard v. Bennett, 44 S. E., at p. 456, where the author says:

'' Acquiescence in a transaction may bar a party of his relief in a very short period. Thus, if one has knowledge of an act, or it is done with his fu 1l approbation, he cannot afterwards have relief. I-Io is estopped by his acquiesenco, and cannot undo that which has been done. So, if a party stands by, and sees another dealing with property in a manner inconsistent with his rights, and makes no objection, he cannot afterwards have relief. His silence permits or encourages others to part with their money or property, and he cannot complain that his interests are affected. His silence is acquiesence, and it estops him.'' Again, at section 1063, he says: "vYhen a man with full knowledge, or at least with suffieicnt notice of means of know-ledge, of his rights, and of an the material circumstances of the ·case, freely and advisedly does anything which amounts to the recognition of a transac.tion, or acts in a manner inconsistent with its repudiation, or lies by for a considerable time, and knowingly and deliber-

ately permits another to deal with property or inpage 51 ] cur expcrn,c under the belief that the transaction

has been recognized, or freely and adYisedly abstains for a considcrn hle lapse of time from impeaching it, there is acquicsccnsc, and the transaction, although originally impeachable, becomes unimpeachable in equity.''

l~or the reasonH herein stated, the court is of opinion that


the complainant's bill should be dismissed. A note for decree to this end may be submitted.

November 6. 1939. Dec. 11, 193.9.

A. H. HOPKINS, Judge, Cireuit Court of Bedford County.

page 52 ] At another day, to-wit, Circuit Court of the County of Bedford, January 4th, 1940.

This cause came on thi~ day to b.e heard upon the papers formerly read, upon the report of Aubrey E. Strode, Jr., Commissioner in Chancery, filed herein pursuant to decree of reference entered in this cause on ,July 30, 1939, upon the exceptions to said commissioner's report filed on behalf of the complainant, Landon Lowry, Receiver, by his attorney, and was argued by counsel.

UPON CONSIDERArrION ""\VI-IEREOF, it having been shown to the court that a demurrer and answer to the bill of complaint in this cause was filed in court by March Noell, et al, on December 19, 1934, with endorsement on said demurrer and answer showing that the same was so filed, and with decree of December 19, 1934, allowing said answer to be filed, and that a further answer was filed to said bill of complaint on the same day by Bettie P. Noell, in her own right, a.nd as administratrix of R. C. Noell, with Jike endorsement on said demurrer and answer showing that the same had heen filed in court, but wij,hout a formal decree 9f court allowing the last mentioned demurrer and answer to be filed; and it appearing to t.he court that the said last mentioned demurrer and answer have been treated a.s having been duly filed in this cause by all of the parties hereto, and the court being ot' opinion that the failure to have formal leave of court by decree du1y entered permitting said answer of Bettie P. Noell, in her own right, and as administratrix, to be filed was an inadvertence ;

Doth now, on motion of t11e said Bettie P. Noell, grant leave to file said demurrer and answer nunc pro tune, as of December 19, 1934.

AND TT FURTHER APPEARING TO THE COURT that the bill of complaint herein was filed by said Landon LowTy, Rcceive1· of Bedford County Bank, Inc., on November 3, 1934, that the demurrers and answers of the aformmid res-


pondents thereto were filed December 19, 1934, denying the allegations of said bill of complaint, and calling

page 53 ] for proof thereof, that said answers alleg·e;d and charged that the said receiver had actual ki1owl·

edge that the chancery suit of March Noell, et al v. Bettie P. Noell, et al, was pending in this Court when he filed his said bill, and like knowledge that the tract of land of which R. C. Noell died seized was advertised for sale, and was sold at public auction in said partition suit; and that said complainant made no denial of the allegations of said answer;

AND IT FURTHER APPEARING TO THE COURT that the said receiver, having such ac.tual knowledge of said Noell partition proceedings, and having had opportunity, pursuant to the statute of Virginia for such case made and provided, to file his petition to said Noell partition suit. setting up tJ1e debt alleged to be due the Bedford County Bank, Inc., and having failed to file such petition, or to take any steps to intervene in said Noell partition suit;

THE COURT IS OF OPINION that the said receiver is now estopped to object to the validity of said proceedings, and doth so ADJUDGE ORDER and DECREE.

AND THE COURT, BEING FURTHER OF OPINIO~ that this Court bas jurisdiction to supervise and direct the said receiver in the performance of his official functions and duties, and that under the allegations of said receiver's bill of complaint, and of the answers filed thereto, said receiver's suit was unadvisedly brought, doth so decide.

AND THE COURrr DOTH FURTHER ADJUDGE, ORDER and DECREE that the finding of Aubrey E. Strode, ,Jr., Commissioner in Chancery, in bis report filed herein, pursuant to decree of reference, that said receiver is estopped to bring· suit, be, and the same is, approved and confirmed, and that the exeeptions filed to said report be, and the same are, overruled.

"'WHEREFORE, the Court having now considered its opinion, and reserving for future uetion, Rhould such action hb

necessary, its decision upon the demurrers filed by page 54 J said respondents; and being of opinion, for rea-

sons set forth in writing bearing date the 11 day of Dec. 1939, signed by the Judge of this Court and ordered to he made a part of the record in this cause, that the bill or complaint. filed hy said Landon Lowry, receiver, Bedford County Bank, Inc., iR without equity, doth so decide, and doth


ADJUDGE, ORDER and DECREE that said bill of complaint lJe dismissed.

And the Court doth further ADJUDGE, ORDER and DECREE that the said Landon Lowry, Receiver ol: the Bedford County Bank, Inc., shall, out of the assets coming to his hands as such receiver, pay the costs of this proceeding.

And the said complainant, Landon Lowry, Rec~iver of the Bedford County Bank, Inc., having indicated his desire to present to the Supreme Court of Appeals of Virginia a petition for appeal from this decree, it is ORDERED that the operation of this dec.ree be suspended for a period of ninety days from the date hereof, in order that said petition may be presented, provided that the said complainant shall first execute a suspending or supersedeas bond in the penalty of

. $200.0J, payable and conditioned according to law.

At another day, to-wit, Circuit Court of the Cot,nty of Bedford, .March 2nd, 1.940.

It appearing to the Court that the record in tho chancery suit under the short style of Uareh Noell, et als., v. Noell'~ Administratrix, et als., has b~en treated as a part of the record in this case by all the parties hereto since the institution of this suit, and by the Court in deciding the issues in this case, but that no order ha.s been formally entered incorporating into the record in this snit the record in the said chancery suit under the short style of March Noell, et als., v. Noell;~ Administratrix, et als., although said record in said suit is of material assistance in arriving at a proper understanding or the issues presented by thh;; cause, and that all parties hereto desire that the said record in the said suit of March Noell, et als., v. Noell's Administratrix, et als., he incorporated into

. the record in this suit, the Court doth ADSUDG"Bt page 55 ] ORDER and DECREE nunc pro tune that the

said record h1 the said chancery suit under the short style of l\farch N ocll, et als., v. Noell's Administratrix, et als., be incorporated into and made a pa.rt of the record in the suit or L,andon Lowry. Receiver of the Bedford County Bank, Incorporated, v. Bettie P. Noell, et als.

page 56 ] l\farch Noell, ,Jack Noell, Emmett Noell, Pete Noell, ,Tewel N. Luck, Bee Noell,

and Ohera N. Garrett., Plaintiffs ag·ain8t


Bettie P; Noell, in her own right and as Administratrix of the ~~state of R. C. Noell, Deceased, '\V oodr°'v Noell, Iris Noell, Dock Noell, J. K. Noell, and Louise Noell, the last five of whom are infants

71

under the age of twenty-one, Defendants

BILL Filed February 2nd, 1934.

To tbe Honorable A. H. Hopkins, Judge of the Circuit Court of Bedford, Virginia:

Your complainants, March Noell, ,Jack Noell, Emmett Noell, Pete Noell, Jewel N. Luck, Bee Noell, and Obera N. Garrett, respectfully show unto Your Honor the following facts:

That one R. C. Noell, late of the County of Bedford, de_partecl this life intestate on or about the 31st day of December, 1933, leaving as his sole heirs at law bis widow, Bettie P. Noell, 53 years of age, and twelve children as follows: Ma.r~h Noell, 30 years of age; Jack Noell, 28 years of age; Emmett Noell, 27 years of age; Pete Nqell, 25 years of age; Jew~l N. Luck, 24 years of age; Bee N~~ll, 23 years of age; Obera N. Garrett, 22 yea rs of age ; ·w oodrow Noell, 20 years of age ; Iris Noell, 18 years of age; Dock Noell, 16 yea.rs of age; .J. K. Noell, 13 years of age ; Louise Noell, 11 years of age. Y om~ complainants further represent that each of said children is entitled, after the payment of the debts, to a. one-twelfth undivided interest in said estate both real and personal, subject to the dower rights of the widow, Bettie P. Noell.

Your complainants further represent that the said R. C. N ocll died seized and possessed of a certain tract or parcel of land, situate in Lisbon Magisterial District, near Montvale, in Bedford County Virginia, containing 157% acres, more or less, adjoining the lands of .J. !L Luck, M. L. Tankersley, Lance De ,vitt and Others. and being the same land conveyed to R. C. Noell by .T. N. Nichols and wife by deed dated tlw

19th day of Oetoher. 1914, of record in the Bedpage 57 ] ford Cireuit Court (;lerk's Office in Dee<l Book

112, nage 321. A duly certified copy of thh, deed wil1 be filed with tl1is bill, if required or deemed necessary.

Your comnlainants further represent tl1at Robert Callo,rny Noell a.nd Bettie Pearl Noe11. his wire, conveyed the aboYe tract or parcel of land to The Union Trust Company. a Cornomtion of Charleston, West Virginia, as Trustee. hy deed elated the 1st dny of ,July, J!-)25, of reconl m the aforesaid

_72 Supreme Court of .Appeals of Virginia

Clerk's Office in Deed Book 144, page 54, in trust to secure the Greenbrier Joint Stock Land Bank of Lewisburg, West Virginia the sum of Two Thousand Dollars ($2000.00) evidenced by a negotiable promissory note in the sum of $2000.0J of even date of this deed, payable in sixty semiannual payments of ,$72.28 each, payable on the 1st day of January and July in each year, the instal1ments paid on flieir due date bearing intetest at the rate of six percent per annum, and defaulted payments bearing interest from their due date at the rate of eight per cent per annum. Your complainants further aver and charge that there is a balance due the said Greenbrier Joint Stock Land :J3ank of $1892.02 as of January 1, 1934. A duly certified copy of the above deed of trust will be filed with this hill, if required or deemed necessary.

Your complainants further represent that Bettie P. Noell qualified as Administratrix of the Estate of R. C. Noell, deceased, on January 8, 1934, and that there are certain items of personal property to be ~old by her, and the same will probably be sufficient to pay all of the debts of the estate other than the deed of trust upon tlre above land.

Your complainants further represent that the above deed of trust and t.be taxes for the years 1931, 1932, and 1933 are the only liens on said real estate. · Your complainants further repreRent that the said tract or parcel of land c.annot he conveniently partitioned in kind among the heirs at law of the said R. C. Noell, deceased, and

that the entire tract cannot be allotted to any parpage 58 ] ty or parties wl10 will accept it and pay therefor

to the other parties such sums of money as their interest therein will entitle them to; and that the interest of all parties will be promoted by a sale of the entire tract or parcel of land and a division of the proceeds among the parties entitled thereto; and they further represent that. an allotment of part and a sale of the residue cannot he had among said parties.

Your complainants further represent that it is to the advantage of all parties to this suit that a sale of said ]and be had, and that it be sold subject to the balance due the Greenbrier Joint Stock Land Bank.

Your complainants further represent that it is to the best interests of a11 parties to this suit that a receiver be ap-. pointed for the purpose of renting said real estate for the year 1934.

Lowry, Receiver, etc. vs. Noe11, et als. 73

In tender consideration whereof and forasmuch as your complainants are without remedy save in a court of equity, where such matteTs are properly cognizable a.nd relievable, they pray that the said Bettie P. Noell, in her ow~1 right and as Administratrix of the Estate of R. C. Noell, deceased, Woodrow Noell, Iris Noell, Dock Noell, J. K. Noell, and Louise Noell, the last five of whom are infants under the age of twenty-one, be made pa.rties defendant to this bill, and be required to answer the same, the five infants by a Guardian ad Litem appointed by the Court to represent them, and the adults in proper person, but answers under oath are hereby expressly waived; that the Court direct a sale of the said tract or parcel of land, and that the proceeds of said sale be distributed among· the parties entitled thereto, direct that all proper accounts be ordered and taken, grant unto yqur complainants' attorney a reasonable attorney's fee for instituting and conducting this suit, grant unto your complainants all such other and further relief both general and special as the nature of their case may require and to equity and good conscience may seem meet and proper; and as in duty bound, they will ever pray, etc.·

page 59 ]

·w. R. SAUNDERS, p. q.

M:ARCH NOELL JACK NOELL E·:MMETT NOELL PETE NOELL JEWEL N. LUCK BEE NOELL OBERA N. GARRETT

By vV. R. SAUNDERS Counsel

ANSWER OF INF ANT DEFENDANTS BY THEIR GUARDIAN AD LlTEM, Filed, 1934, February R. (1 M.)

The answer of the five infant. def endauts, Woodrow Noell, Iris Noell, Dock Noell, J. K. Noell, and Louise Noell, by William Eubank, their Guardian ad Litem, to a bill in equity exhibited against said inf ants and others in the Circuit Court of Bedford County, Virginia, by March Noell and others.

These defendants, by their said Guardian ad Litem, do answer and say that they are infants of tender years and not ab, e to understand and protect their rights as to the matters

7 4 Supreme Court of Appeals of Virginia

alleged in the bill of complainants ; and whether or not said defendants have a right to demand a partition of the property set out in the bill and proceedings, they are not advised, neither are they advised as to the proper price said property should bring in case the Court should decree a sale thereof. They do submit their rights and interests to the protection of the Court.

WOODH.ffW NOELL IRIS NOELL DOCK NOELL J.K. NOELL LOUISE NOELL

By ,VILLIAM EUBANK, Their Guardian ad Litem.

ANSWER OF BETTIE P. NOELL, in her own right and as Administratrix of R. C. Noell, Deceased, filed

19134, February R. (1 M.)

The separate answer of Bettie P. Noell in her own right and as administratl'ix of R. C. Noell, deceased, to

page 60 ] a bill in equity exhibited against her and others in the Circuit Court of Bedford County by March

Noell and others. This defendant, for answer to said bill or so much there

of as she is advised it is meet and proper that she should answer, does answer and say that the allegations made in said bill are true and correct; that, after the payment of the debts of the estate, she is entitled to one-third of all of the personal estate, but your defendant states that she does not believe there is sufficient personal estate to pay the debts; and that she ·is entitled to a. one-third lifetime interest in the surplus arising from the sale of the farm, after the payment of a debt secui·ed by a deed of trust on which there is a balance due of $1892.02 as of January 1, 1934, all of which is set out in paragraph 4 of complainants' bill.

This defendant concurs in the prayer of the complainants and recommends that the Court make sale of the property described in the bill and proceedings, either publicly or privately, in order to effect a partition thereof.

And, now having fully answered, etc.

BETTIE P. NOELL, In Her Own RigM. and as Acl-


ministratrix of R. C. Noell, Deceased.

By Vil. R. SAUNDERS, Counsel.

Affidavit of J. P. llf arsha.ll

THIS TO CERTIFY that I, J.P. Ma.rshall, knew R. C. Noell of Montvale, Virginia, who died on or about the 31st day of December, 1933. He was the owner of a _tract or parcel of land, situate in Bedford County, Virginia, about five ( 5) miles north of Montvale, containing 157.% acres, more or less. Mr. Noell was the father of a large family, and I am informed that he is survived by his widow and twelve (12) ehildren.

In my opinion, it would be utterly impossible to divide the place in kind among the children and widow of Mr. Noell, and

I am sure the interests of all parties will be propage 61 ] moted by a sale of the entire farm and a division

of the proceeds among the parties entitled thereto.

J.P. MARSHALL.

Subscribed and sworn to before me, Elizabeth E. Spradlin, a Notary Public in and for the County of Bedford, in the State of Virginia, this 20th day of February, 1934 .

.Affidavit of Frmik K. Sa.wnders

THIS IS TO CERTIFY that I, F. K. Saunders, knew R. C. Noell of Montvale, Virginia, who died on or about the 31st day of December, 19'33. He was the owner of a tract or parcel of land, situate in Bedford County, Virginia, about five ( 5) n1iles north of Montvale, containing 15J1h acres, more or less. Mr. Noell was the father of a large family, and I am informed that he is survived by his widow and twelve (12) children.

In my opinion, it wou1d he utterly impossible to divide the place in kind among the children and wido·w of 1\fr. Noell, and I am sure the interests of all parties will be promoted by a sale of the entire farm and a division of the proceeds among the parties entitled thereto.

FRANK K. SAUNDERS.

Suhi::cribed and sworn to hefore me, G. C. Luck, a Notary

76 Supreme Cour.t of A.ppeals of Virginia

Public_in _and f.or_ the County of Bedford, in the State of Virginia, this 20th day of February, 1.934.

My Commission Expires July 7, 1937.

G. C. LUCK, Notary Public.

Virginia: At Bedford Circuit Court, February 20, 19'34.

This cause came on this day to be heard upon the complainants' bill and affidavits filed therewith; the answer of the infant respondents, Woodrow Noell, Iris Noell, Dock Noell, J. K. Noell and Louise Noell, by \Villiam Eubank, their Guar-

dian ad Litem, to said bill ; the answer of Bettie P. page 62 ] Noell in her own right and as Administratrix of

R. C. Noell, deceased; and complainants replication to said answers ; and was argued by counsel.

ON CONSIDERATION WHEREOF, the Court doth approve and confirm said orders and proceedings had at Rules; and, it appearing to the satisfaction of the Court from the bill filed by the complainants that one R. C. Noell departed this life intestate seized and possessed of a tract or -parcel of land situate in Lisbon Magisterial District, Bedford County, Virginia, containing 157% acres; and it further appearing to the Court from the said bill that the said real estate cannot be partitioned in kind among the said complainants, and that it would be to the best interests of all parties concerned to sell the same and to divide the proceeds of such sale among those entitled thereto; and it further appearing to the Court that a partition of the entire real estate in the bill and proceedings mentioned, or any part thereof, cannot be made to advantage, but that a· sale of said real estate will be to the best interests of all parties concerned; and it further appearing to the Court that said land is subject to a deed of trust due The Greenbrier Joint Stock Land Bank of Lewisburg, West Virginia, on which there is a balance due of $1892.02 as of January 1, 1934, and that it ·will be to the advantage of all parties concerned that said tract or parcel of ]and be so1d subject to said deed of trust; the . Court cloth, therefore, adjudge, order and decree that W. R Saunders he, and he hereby is. appointed a commissioner to sell the said tract or parcel of land in the bill and r>roceedings mentioned, containing 1571/z acres; and the said Commissioner is hereby authorized to sell the said tract or parcel of land sub:iect to the deed of trust due The Greenbrier Joint Stock Lank Bank of Lewisburg, West Virginia; and, in

Lowry, Receiver, etc .. vs.~ N oeH, et als. 77

event said tract of land is sold subject to said deed of trust, any amount over said deed of trust shall be paid by the purchaser in cash.

But, before the Commissioner shall execute this depage 63 ] cree, he shall enter into bond before the Clerk of

this Court with approved security in the penalty of two thousand .dollars ($2000.0D) conditioned according -to law;

COMMISSIONER'S REPORT, MARCH TERM, 1934

The undersigned commissioner, who was, by a decree entered in the above entitled·cause on the 20th day of February, 1934, directed to sell the tract or parcel of la_nd in the bill and proceedings mentioned and described, containing 157%i acres, after giving the bond required in said decree and duly advertising the time, terms and place of sale, and after having in all other respects compHed with the terms of said decree, begs leave to report that on the 5th day of March, 1934, in front of the Court. House of Bedford County, at Bedford, Virginia; he offered said property for sa~e by way of public auction, at which sale one R. B. Arrington being the highest bidder became the purchaser thereof at . tJie price of hvo thousand one 1hundred and fifty dollars ($2150.00) and he has. elected to pay .the said sum of $2150.00 by the assumption of a debt of $1892.02 with interest thereon from January 1, 1934, due The Greenbrier Joint Stock Land Bank of Lewisburg, West Virginia, which said debt is secured by a deed of trust dated the 1st day of July, 1925, of record in the Bedrord Circuit Court Clerk's Office in Deed Book 144, page 54, and the said R. B. Arrington had elected to pay the balance of said purchase money, amounting to $257.98, in cash.

Your commissioner reports that said sale was well advertised and well attended, and he recommends that the above sale be confirmed and that the Court direct that said property be conveyed to R. B. Arrington, or to whom he may in writing direct, subject to the above deed of trust, unless the purchaser should, before said deed is made, elect to pa.y the full purchase-price in eash.

Rsepectf ully submitted,

W.R. SAUNDERS, Commissioner.

78 Supreme Court- of Appeals of Virginia

page 64 ] Virginia: At Bedford Circuit Court, '.Marc.h 6, 1934.

This cause came on this day to be again l1eard on the papers formerly read and on the report of ,v. R. Saunders, Commissioner, who was by a decree entered in said cause on the 20th day of -February, 1934, directed to sell the tract or parcel of land in the bill and proceedings mentioned and described, together with a handbill showing sale of said property containing· 1571/2 acres to one R. B. Arrington for the sum of $2150.00, and it being suggested to the Court that the said R. B. Arrington has elected to assume a deed of trust due The Greenbrier Joint Stock Land Bank of Lewisburg, West Virgir~.ia, upon which deed of trust there is a balance due of $1892.02 as of January 1, 1934, and to pay the balance amounting to .$257 .98 in cash, to which report there are no exceptions, and ,Yas argued by counsel.

ON CONSIDERATION WHEREOF, the Court doth approYe and confirm the report of W. R. Saunders, Commissioner, and the sale made by him to the said R. B. Arrington.

The Court doth further ad.judge, order and decree that ·vv. R. Saunders, Commissioner, collect from the said R. B. Arrington the said sum of $257.98, and out of same that he pay the costs of this suit, the taxes upon said real estate for the years 19'31 and 1932, and an attorney's fee of $75.00 to l1imself for instituting and conducting this suit.

The Court doth further adjudge, order and decree that the said ,v. R. Saunders be, and he hereby is, appointed a :commissioner to convey unto the said R. B. Arrington, or to whom he may in writing direct, the said tract or parcel of land so purchased by him by proper deed, with cover1ants of special warranty of tif e, when the said R. B. Arringion shall ilmve complied with the terms of this decree.

page 65 ] COMMISSIONER'S FINAL REPORT, MARCH TERM, 1936.

The undersigned Commissioner, who wa.s by a decree entered in the above styled cause on the 6th day of March, 1934, authorized to collect and disburse the money from the sale of the land mentioned and described in the bill and proceedings, makes the following report of his receipts and disbursements:


RECEIPTS

By cash from the sale of land $ 257 .98 By assumption of deed of trust loan due the Greenbrier Joint Stock Land Bank 1892.02

DISBURSEMENTS

1934, April 24 To State tax on suit To V. ,v. Nichols, Clerk To V. W. Nichols, Agent, premium on bond To ·wmiam Eubank, Guardian ad Litem To vV. R. Saunders, 5% commissions To L. D. Johnson, Auctioneer To ,v. R. Dooley, Treas., taxes for the years

$2150.00

1.50 13.21 10.00 5.00

107.5(} 5.00

1931 and 1932 85.56 To ,v. R. Saunders, on fee allowed by Court 24.71 To fee for deed and acknowledgment 5.50 To amount of mortgage assumed by purchaser 1892.02

$2150.00

79

Your Commissioner has executed and delivered deed to purchaser of the property on April 24, 1934.

Respectfully submitted,

W. R. SAUNDERS, Commissioner.

Virginia: At Bedford Circuit. Court, May 16th, 1936.

This cause came on this day to be again heard on the papers formerly read and on the final report of Yv. R. Saunders, Commissioner, and was argued by counsel.

And it appearing to the Court that said report is page 66 J in clue form and that all of the funds that have

come into the hands of vV. R. Saunders, Commissioner, have been properly disbursed, and the said "\V. R. Saunders has executed and delivered a deed to the purchaser of the property involved in said suit, and that all the purchase

80 .. . Supreme: Court of Appeals of Virginia

money for said property has. been collected, the Court doth ADJUDGE, ORDER and DECREE that said report, in all respects, .be approved and CQnfirmed ..

And the Court doth .he1~eby release W. R. Saunders, Commissioner and his surety from, any. further liability on the bond given- -in the above styled cause.

Virginia:

In the Clerk's Office of the Circuit Court of the County of Bedford. ·

I, V. W. Nichols, Clerk of the Circuit Court of the County of Bed.ford, Virginia, do hereby certify that the foregoing is a true transcript of the record in the chancery cause pending in said Court under the style of Landon Lowry~ Receiver, vs. Bettie P. Noell and others, and in the cause of Noell vs. Noell, made a part thereof; and I further certify the notice required by Section 6339 of the Code of Virginia was given to the defendants and legal service accepted by them by counsel.

Given under my hand this the 2nd day of May, 1940.

V. "\V. NICHOLS, Clerk of the Circuit Court of the County of Bedford, Virginia.

We, the undersigned do hereby agree that the order of the· Circuit Court of Bedford County, Virginia, dated J anuary .29, 1931, of record in the Clerk's Office of the Circuit 0'ourt of Bedford County, Virginia, in Chancery Order Book No. 25 at Page 11, in suit of the State Corporation Commission v. The Bedford .County Bank, Incorporated, shall be written into and made a part of the record in the case of Landon Lowry, Receiver of the Bedford County Bank, Incorpo·rated, v. Bettie P. Noell, et als., now pending in the Supreme Court of Appeals of Virginia on an appeal from a certain decree of January 4, HMO, entered by the Circuit Court of Bedford County, Virginia.

HUNTER SMITH, Guardian ad Litem, W.R. SAUNDERS, S. S. L.!\.MBETH. Jr.

Counsel for Appellees. ,vILLIAM Vl. BERRY, Jr.,

Counsel for Appellants.

Lowry, Receiver, etc. vs. Noe~l, et als. 81

Virginia: In Bedford Circuit Court, January 29, 1931.

STATE CORPORATION COMMISSION, Plaintiff, against

BEDFORD COUNTY BANK, INCORPORATED, Defendant

This cause, which appears to have been regularly matured at rules and set for hearing, came on this day to be heaTd on the bill of the complainant; the orders and proceedings had -at rules; the order of this Ceurt entered herein on the 10th day of December, 1930, appointing Landon Lowry, Receiver of the Bedford County Bank, Incorporated; the injunction that day awarded against the said defendant, its agents, attorneys, and employees; the motion of Landon Lowry, Re· ceiver, in open Court, to file his report, marked ''Receiver's Report No. 1", together with the audifof the Bedford County Bank, Incorporated, marked "Exhibit A", made by Pace, Gore & :McLaren, expert accountants, showing· the condition of the said Bank at the time it was placed in the hands of said Receiver, and ,vas argued hy Counsel.

On consideration whereof, the Court doth approve anrl confirm the said orders and proceedings had at rules, and .the defendant failing· to appear, plead, answ·er, or demur to the said hill of tl1e said complainant, the same is taken for confessed as to it.

And the Court cloth adjudge, order, and decree that the said injunction awarded in this cause on said 10th day of December, 1930, be, and the same hereby is, made perpetual.

And the Court doth approve and confirm the said report and the acts of the said Receiver, as are therein set forth, in all respects; and doth authorize, empower, and dir.ect the said Receiver to continue to conduct the said Receivfn·ship of said Bank in the banking house of the said Bank at Montvale, Vir~ ginia, and to continue to employ the said J. \V. Caldwell, Jr., JlS his as8istant, at the rate of *125.00 per month, for such period of time as, in his j~dgment, may seem best.

And the Court doth further adjudge, order. anq. decree that the ~mid Receive1· be, and he hereby is, authorized, empowered, and directed to renew, from time to time, any and all notes owned by said Bank, in the sum of $15{).00 or less, ,vhich, in his discretion, should he renewed for a period of thirty days; and that he likewise be. and he hereby is, autl1orized, empowered, and directed to renew, from time to time, any and a 11 notes owned by said Bank, and all notes re-


discounted by it, in excess of the sum of $150.00, which, in his discretion, should be renewed for a period of not exceeding ninety days at a time; all renewals, however, shall be made only upon the condition that all past due interest on ~my such note, tog·ether with the discount thereon, shall be first paid by the maker or endorser, or by some one for them.

':l1be Court doth further adjudge, order, and decree that, in the event the makers and endorsers fail or refuse to pay their said notes, or fail or refu~ to renew any such of them as the said Receiver is willing to renew, or fail to pay the interest and discount due thereon, then and in that event the said Receiver is authorized, empowered, and directed to take such action against the makers, endorsers, and all other persons liable thereon, by suit or othenvise, as, in his judgment, may be necessary to enforce collection of the same.

And the said Receiver is further directed, whenever, in his judgment, any note or notes are not properly secured by endorsement or otherwise, to require the said maker or endorser to furnish security therefor satisfactory to said Receiver, and, in the event of their failure to do so, said Receiver, in his discretion, is authorized to proceed forthwith to enforce collection of such note, by suit 01· otherwise.

And it further appearing to the Court from the said report of the said Receiver that said Bedford County Bank, Incorporated, at the time of the said Receivership, was indebted to The Citizens National Bank of Bedford, in tne sum of $16,-300.00, and that it had pledged as co]ateral security therefor with said Bank sundry notes, aggregating the sum of $24,-556.00; that it was at that time likewise indebted to The Peoples National Bank of Lynchburg, in the sum of ,$35,000.00, and that it had pledged with said Bank as security for said indebtedness sundry other notes, aggregating tlie sum of $52,053.48; and that both the said Citizens National Bank oi Bedford and The Peoples National Bank of Lynchburg have delivered to the said Receiver for collection the said collatercil notes he'd by them, respectively, the proceeds of said co1-Jateral notes to be applied by him when and as collected as a credit on the indebtedness of the Bank which held said note~ so collected; and it further appearing from the said report that the said collateral notes held by said respective Banks are collectible, and, in each instanr~, the amount of the said co1 latera.l notes is at least one and one-half times as much as the indebtedness of the said Bedl'ord County Bank to said

Lowry, Receiver, etc. vs. N oe~l, ct als. 83

Citizens National Bank of Bedford, and to said Peoples Nat· fonal Bank of Lynchburg, the Court doth further adjudg·e, order, and decree that the said Receiver be, and he hereby is, authorized, from time to time, to pay to said Citizens National Bank of Bedford, and to pay to said Peoples National Bank of Lynchburg, out o~ his general collections, the indebtedness of the said Bedford County Bank due to said Citizens National Bank of Bedford, and the indebtedness of said Bedford County Bank due to said Peoples National Bank of Lynchburg, and that when such payments are made by him out of said general collections-and from the said collateral notes held by said respective Banks-the said Citizens National Bank of Bedford and the said Peoples N a.tional Bank of Lynchburg be, and they, and each of them, are hereby, required to deliver to the said Receiv.er, for the Receivership, such of the collateral notes held by them, respectively, as will be equal to the amount of such payment or paynwnts; and that when the said Re· ceiver shall have paid off and discharged in full the s3:id in· debtedness due by said Bedford County Bank to said Citizens National Bank of Bedford, and, when he shall haye paid off t.1,nd disc.barged in full the said indebtedness due by said Bedford County Bank to said Peoples N a.tional Bank of Lynch·hurg, then that each of the said J3.anks shall release and de.liver unto the said Receiver all of the aforesaid collate1\al notes held by them, respectively, and· the said Receiver shall proceed to handle and collect the same for the Receivership in the same manner as he is handling and collecting the other notes of the said Receivership or said Bedford County Bank.

And it further appearing to the Court that the said Bedford County Bank is the owner of its banking house and cer· tain land adjacent thereto, situate at Montvale, in Bedford County, Virginia, and that it owns certain other real estate situate in the County of Bedfor<l, Virginia, the Court doth further adjudge, order, and decree that the said Landon Lowry, Receiver, a.s aforesaid, be, and he hereby is, authorized, empowered, and directed to sell any and all of the real estate owned by said Bedford County Bank, Incorporated, whereso· ever the same may be situated, either at private sale or at public auction, and on such terms and conditions as, in the judgment of the said Receiver, may seem to he to the best interests of the creditors of the said Bank.

And the Court doth further adjudge, order, and decree that when any such sale or sales shall hnw hcen made by the

84 Supreme Court of .Appeals of Virginia

-said Receiver of any part or of all of the said_ real estate belonging to the said Bank, and when the purchase money therefor shall have been paid in full, or when the said purchase money shall have been satisfactorily secured, then Landon Lmvry, the Receiver, as aforesaid, shall convey the said real estate so sold to the said purchaser or purchasers for and 011

behalf of the said Bedford County Bank, Incorporated, by proper deed, containing covenants of special warranty of title.

The Court doth further adjudge, order, and decree that in 1any case where the makers and endorsers of notes held by said Bedford County Bank, Incorporated, fail to pay the same, when demand for the payment thereof shall have been made by the said Receiver, and such note or notes are secured by a deed of trust whereby real estate or personal property has been conveyed to a Trustee, then that the said Receiver be, and he hereby is. authorized and empowered to require the said Trustee or T_rus.tees named in the said deed of trust to advertise and seH the said real or personal property thereby conveyed, in accordance with the terms and conditions 0£ the said deeds of trust; and in the event, in the judgment of the said Receiver, it shall become necessary, to protect tl1e interests of the creditors of said Bank, for him to purchase said real estate, or in the event any other real estate upon which said Bank has a lieu is heing· sold under any other deed of trust, decree of Court, or otherwise, and, in the judgment of the said Receiver, it shall be necessa.ry for him to purchase such real estate for the Receivership, in order to protect the .creditors of the said Bank, the said Receiver he. and he is hereby, authorized, empowered, and directed, in either e_vent, to purchase such real estate for the said Receivership. And in the event the said Receiver should become the purchaser of any such real estate, Im is hereby authorized and empowered to resell the same, eitlrnr privately or at public auction, to such purchM,er or purchasers. either as a who1e or in parcels, and on such terms and conditions as in his .judgment may seem to he to the best interests of the said creditors of the said Bank; and in the evcrit he shall make such resale of such real estate, or of any part thereof, he shall convey the same to the purchaser or purchasers thereof, upon receiving the payment of the purehase money therefor in full, or by having said purchase- money satisfactorily secured, for and on behalf of said Bedford County Bank or this Receivership, hv -proper deed, containing covenants of special wa.nanty of title.


And it further appearing from the said report that it may be necessary for the said Receiver, in order to collect some of the outstanding indebtedness now due, or which may hereafter become due to said ijank, or to him as such Receiver, or for other purposes, to institute sundry suits in the Courts of this State and/or in the Courts of other States in the United States the Court doth, therefore, further adjudge, order, and decree that the said Landon Lowry, Receiver, as aforesaid, be, and he hereby is, authorized, empowered, and directed to institute such suits, actions, or other proceedings as he may deem to be necessary or advisable in this Court, o:r- in any other Court in this State, or in any Court in any other State of the United States, for the purpose of collecting any indebtedness due to the said Bank, or to him as such Receiver thereof, or for any other purpose which he may deem necessary or· advisable to wind up the affairs of the said Bank, or to protect the property or the creditors of the said Bank.

And in the conduct of this Receivership, the said Receiver is given liberty and broad po,Yers to use his discretion in the settlement, by compromise adjustment, or otherwise, of any and all douJ)tful indebtedness due by any person to said Bank, whether as maker or endorser, on any notes or other indebtedness to said Bank.

And the Court doth further adjudge, order, and decree that this cause be referred to one of the Commissioners in Chancery of this Court, to take, state, settle, and report to Court the following accounts, to-wit:

(1) An account showing the assets of said Bank, what the same consists of, including all real estate owned in fee simple by said Bank, and conveyed to it; all real estate owned by said Bank, the title to which has not been conveyed to it; and all real estate to Which said Bank has the equitable title. And the said Commissioner shall, in each instance, give a brief description of such real estate, its location, when, and from w 110111 said Bank purchased the same.

(2) An account show'ing all of the liabilities of the said Baul{;

(3) An account showing· all of the liens on the assets of the said Bank; together with their relathre priorities, if any, and

86 Supreme Court of Appea:s of Virginia

( 4) Any other account which may be requested by any party to this suit, or party in interest, or which may be deemed necessary or pertinent by the Commissioner taking th~ same.

And in taking the said accounts the said Commissioner is authorized to use, as a basis for· the taking of the, same, so far as is pertinent, the said audit made by said Pace, Gore & McLaren, expert accountants, a copy of which is filed in the Clerk's Office of this Court with the papers in this cause as a part of Receiver's Report No 1.

But before taking· the said accounts, the said Conunissioner shall give not.ice of the time and place of taking the same, by publication of such notice in at least two consecutive publications in The Bedford Bulletin and The Bedford Demo'Crat, newspapers published in the County of Bedford, Virginia., and the publication of such notice_ shall be in lieu of personal service on the parties to thts suit, and such publiGation shall likewise be in lieu of personal service on any party interested in the taking of the said accounts.

A Copy, Teste :

V. W. NICHOLS, Clerk. Chancery Order Book No. 25 Page No. 11.

A Copy Teste: J.M. KELLY,

Deputy Clerk.

Low1y, Receiver, etc. vs. Noe.I, et als. 87

INDEX TO RECORD

1-'age

Petitio11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Record ................................................ 24 Bill ................................................. 24 Decree of December 19, 1934 . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Demurrer and Answer ................................ 36 Demurrer and Answer ................................ 39 Order 1935, March R. (3M.) .......................... 40 Memorandum as to answer of infants . . . . . . . . . . . . . . . . . 40 Decree of July 30, 1939 .... ,. . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Report of Commissioner ............................. 41 Exceptions to Commissioner's Report . . . . . . . . . . . . . . . . . . 52 Opinio11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53 Decree of January 4, 1940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68 Decree of March 2, 1940 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70 Noell v. Noell-Bill .................................. 71 Answer of Infants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73 Answer of Bettie P. Noell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 4 Affidavit of ,J. P. Marshall ........................... 75 Affidavit of J.i.,rank K. Saunders ....................... 75 Decree of February 20, 19:34 ........................... 76 Commissioner's Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77 Decree of March 6, 1934 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Commissioner's Final Report . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Decree of May 16, 1936 ............................... 79 Clerk's Certifieate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80

(° CLER•'°' SUPREME CDUR1' Of APPEALS iffi~ CEeVE

Dj JIJN 24 1840 ~.

ECEIVE Iii! fi!CHM0ND, ViRGiN!A ,

record ho. 2313. - washington and lee university

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