Muse v. Friedenwald

Citations

• 77 Va. 57
• 1883 Va. LEXIS 36

Syllabus

<p>1. Judicial Sales—Rents and Profits.—Before sale of realty can be decreed to pay judgment liens, the court must, in some way, be convinced that the rents and profits will not in five years satisfy those liens. When the insufficiency is alleged and not denied, there need be no enquiry; but where not alleged, or if alleged, the allegation is denied, there must be enquiry before a sale can be decreed. Ewart v. Saunders, 25 Grattan, 203, and Horton v. Bond, 28 Grattan, 815, approved.</p> <p>2. Principal—Surety.—It is well settled that a court of equity will not sell the realty of a surety until that of the principal has been exhausted.</p> <p>3. Tenancy by the Curtesy.—To create such estate three things must concur. (1). Actual seizin in fee of real estate in the wife; (2). Marriage and the birth of a child alive; (3). The death of the wife.</p> <p>4. Case at Bar.—Creditor’s bill of W. & Co., and other judgment creditors of J. O. and G. O., deceased, principals, and M. surety. J. O.’s estate was insolvent. G. O.’s realty was not only not exhausted, but was not fully ascertained. To M.’s wife for her life a tract of land had been devised. It did not appear that a child had been born alive of their marriage, or that she had actual seizin of the land, or that she was then living or dead. There was no allegation that the rents and profits of M.’s interest in the land were insufficient to satisfy the judgments within five years, and there was no enquiry. Yet,°court below decreed sale of M.’s interest to pay those judgments. On appeal here—</p> <p>Held :</p> <p>1. The decree was premature and erroneous.</p> <p>2. An account of rents and profits preessential to decree of sale.</p> <p>3. The realty of G. O. must be exhausted before M.’s can be touched.</p> <p>4. On the facts M. had no curtesy in the land. But if the wife be living and made a party, by proper proceedings M.’s interest in her lands during their joint lives may be subjected.</p>