Shultz v. Hansbrough

Citations

• 76 Va. 817
• 1882 Va. LEXIS 84

Syllabus

<p>Practice in Chancery—Creditors' bill—Construction of decree—Case at bar.—H files his bill to enforce his and the liens of other judgment creditors on the lands of S. An account of the liens and lands is taken. Report shows numerous liens and parcels of land. H’s judgment was a lien on all the lands, and a vendor’s lien on the parcel first aliened by S—viz : to R. There were also three deeds of trust of different dates; the first and third securing each one debt on one parcel; and the second securing on all the lands numerous debts, as well judgments as debts not reduced to judgments. Bus this second trust deed was not enforceable until 3d May, 1882. Besides H’s, there was no lien on R’s parcel. Exceptions to report being overruled, the circuit court decreed that, unless within 60 days, S paid the costs of the suit, the judgment of H and the other judgments appearing from the report’ to be chargeable on the lands of S, then commissioners should sell so much of the lands of S, described in the report, as might be necessary to pay said costs and judgments, but should sell first so much of the land conveyed by S to R as might be necessary to pay said costs and the judgment of H; and then sell so much of the other lands of S as might be necessary to pay the balance (if any) of the judgment of H, and the other judgments chargeable thereon as set forth in the report. On appeal by defendants—</p> <p>Held :</p> <p>1. By the plain meaning and import of the language of the decree, R could only prevent the sale of his land under it by the payment of all the judgments reported by the master and all the costs of the suit.</p> <p>2. Under the circumstances of this case, any decree requiring and directing the sale of R’s land, unless he paid the costs of the suit and all of the judgments, would be erroneous. °</p> <p>3. In such case, this court will not construe, amend and affirm the decree (though it be erroneous in no other particular), but will reverse it with costs to the ap