Ferguson's Adm'r v. Teel , 82 Va. 690 ( 1886 )

Richardson, J.

(after stating the case), delivered the opinion of the court.

The appellants first assignment of error is, that there should have been no decree in the cause until the bill had been matured as to all the parties defendant. And for specification it is said, “Elizabeth A. Tench, the wife of Edmund Tench, and a sister and heir of the aforesaid Isham M. Ferguson, deceased, was made a party defendant to said bill, and a writ of summons was sued out against her, but by the return made it appears to have been served upon her husband, and not upon her. The bill was, therefore, not ready for a hearing as to her, and yet the record shows that it was taken for confessed as to all the defendants, and a decree was entered affecting the rights of all.”

This admission of what appears by the record, demonstrates that the objection for want of notice cannot and ought not to prevail. It is true that a judgment against a person who has not been served with notice is a void judgment, and is ex vi termini, a nullity. Kyles v. Ford, 2 Ran. 1; Hickman v. Sarkey, 6 Gratt. 212; Underwood v. MeVeigh, 23 Gratt. 418; Wade v. Hancock, 76 Va. 620, and Lavell and Jordan v. McCurdy, 77 Va. 763. Hence, to impeach and overturn judgments of courts of competent jurisdiction involves consequences of too much moment to be lightly regarded; and when a court of general jurisdiction has pronounced judgment, its adjudication should be as conclusive on the question whether a party was duly notified as on any other point necessary to a proper determination of the cause. Trimble v. Long, 13 Ohio, N. S. 431; Hill v. Woodward, 78 Va. 765, and authorities cited.

It is true the copy of the summons which appears in the record, and in which Mrs. Tench’s name appears, is returned executed on her husband, Edmund Tench. This, at the utmost, only creates a doubt, for both husband and wife are made parties defendant in the bill, and process issued for both; and whilst there could be but one original writ, there could be as many copies as necessary, and for aught that appears by the record the return of service on Mrs. Tench may have been made on another copy, or the fact of service may have satisfactorily appeared to the court, though not appearing affirmatively by the return here. Iiow'ever, there is nothing in the record to show affirmatively that process was not served on Mrs. Tench. On the contrary, it appears that .the cause was matured at rales as to all the defendants. To impeach a judgment under such circumstances, it being a judgment of a court of general jurisdiction, and the party being within its jurisdictional limits, it is not enough to raise a doubt merely; nor will it suffice that the record fails to show that notice was given, the onus lies upon the party assailing the judgment to show that it is wrong, and it is only when he satisfies the conscience of the court that the judgment is wrong that it should be disturbed, the recognized rule being that every thing must be presumed in favor of the proceedings of a court of general jurisdiction, unless there is a plain excess or want of authority. Wade v. Hancock and Agee, supra; Hill v. Woodward, supra; Harman v. City of Lynchburg, 33 Gratt. 43. In the last, named case, Burks, J., said: “The judgment of a court of competent jurisdiction is always presumed to be right until the contrary is shown, and a party in an appellate court alleging error in the court below, must show it in the regular way, or the presumption in favor of its correctness must prevail.”

Moreover, this objection, for want of notice, was not made until long after the rendition of the final decree of May 20, 1884. The first intimation we have of it is found in a vacation decree pronounced on the 6th day of November, 1884, in these words: “ This cause came on this day to be again heard upon the papers formerly read -and upon the motion of the defendant, Henry S. Trout, administrator of Isham M. Ferguson, deceased, to correct the record in this cause, so as to have the bill matured against Elizabeth A. Tench, one of the heirs of Isham M. Ferguson, deceased, in pursuance of notice, to which motion the said George Teel appeared by counsel and waived exceptions to said motion because of want of time, and was argued by counsel. Upon consideration whereof, the said motion of the said defendant is overruled.” No proceeding could well have been more irregular than was this. No proper proceeding is taken to rehear or review and set aside the decree, but the court is simply asked to correct the record so as to mature the bill as against one of the defendants, and this after final decree. Of course, the motion should should have been refused as absurdly irregular and wanting in merit.

The appellants’ second assignment of error is, that the appellee, Teel, had no right to recover in this suit upon the contract filed. The contract referred to is the receipt of 17th of August, 1870, executed by Isham M. Ferguson to George Teel, the appellee, for $450 for, and in part payment for, the land in question, in which occurs this language: “The understanding of the above contract is, if the airs of William Childress should get a redivision in the lands, I am to pay the said Teel his money back.”

As respects the effect of this stipulation in the contract, it is urged by counsel for the appellants that there is no evidence that the “heirs of Wm. Childress” did get a “redivision” of the lands. That on the contrary, it appears that Teel, the purchaser from Ferguson, was not interfered with for over ten years, when, after the death of Mrs. Ferguson, her heirs claimed the land, and procured a sale thereof for partition among them; and that the possession of Teel was not disturbed until after her death, and that the fact that her heirs then inherited the land, is conclusive evidence that the heirs of Wm. Childress did not get a “redivision in the lands.” And, in support of this view, it is further urged that there was no breach of the contract by Ferguson; that Teel had only a right of action upon the implied contract to make a good title, for the breach of which he was entitled in a court of law to such damages as might be assessed in his favor; and that Teel’s claim was for unliquidated damages and did not entitle him to a creditor’s bill, and the same should have been dismissed.

This contention, in the light of the attendant circumstances, is wholly untenable. The receipt of August 17th, 1870, contains the only written evidence of the terms of the contract between the parties, is signed only by Ferguson, and must be takeq most strongly against him as the party executing the instrument, and is, moreover, plainly the awkward work of an illiterate person. And it is equally clear that the words “airs of Wm. Childress,” were used simply to designate the persons who, by reason of the surrounding circumstances, might in the then future assert a title to the injury of Teel. The land had been allotted to Mrs. Ferguson in the division of the estate of her deceased father, Wm. Childress, and was absolutely hers, and not the property of her husband, Isham M. Ferguson.

It was an open fact to both Ferguson and Teel, that if Mrs. Ferguson should fail or refuse-to join with her husband in the sale and conveyance of her land, or if she should die without joining in and completing the contract, the land would be subject to any testamentary disposition she might make in respect thereto, or, in the event of her intestacy, would go to her heirs at law, who were the lineal descendants and heirs at law of Win. Childress also.

Under such circumstances it was reasonable and natural for Teel to stipulate to have his money paid back to him if he failed to get the land, and it was but justice for Ferguson to pay it back on the happening of the event named. The event thus in the contemplation of the parties at the time of entering into the contract, has transpired; the heirs at law of Mrs. Ferguson, who were also the heirs at law of Wm. Childress, have, by due process of law, taken the land away from Teel; and upon the happening of that event, Ferguson became the debtor of Teel to the amount of $650, paid by the latter to the former, with interest on the respective payments constituting that sum from the time they were made.

Being thus the creditor of Ferguson, who, at the judicial sale, failed to come forward and purchase the land, as he might have done, and thus place himself in a position that would not only have protected his vendee, Teel, but would have enabled him to demand and have of Teel, specific execution of the contract, it became and was the duty of Ferguson to pay, as it was the right of Teel to demand and have back, his money with interest.

The plain common sense meaning of the contract is, and the intention of the parties was, when viewed in the light of the language used by Ferguson in the receipt of August 17th, 1870, as explained by attendant circumstances, that if Teel did not get the land Ferguson was to pay back the purchase money received. Such was Ferguson’s promise, and he having in his lifetime failed to comply, or put himself in a condition that he could comply, with his contract when he had an opportunity of doing so, he became Teel’s debtor in a fixed and definite sum, and it was competent for Teel to proceed by a creditor’s bill, have the proper accounts taken and reported, and to have a decree for the amount due him.

We find no error in the decree, and the same must be affirmed.

Decree aeeirmed.