FLOYD COUNTY, VA - COURT - Extract of Howery v. Helms
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Extract of Howery v. Helms, 61 Va. 1, 20 Gratt. 1 (1870), by the Supreme
Court of Virginia involving the estate of Col. John W. Helms, of Floyd
County.
SYLLABUS:

John W. Helms, of the county of Floyd, died in August, 1862, intestate,
leaving eleven children his heirs at law and distributees; and leaving a
valuable tract of land and a number of slaves. His son-in-law, Fleming
Howery, and his son, George M. Helms, qualified as his administrators.

In September, 1862, a bill was filed in the name of Fleming Howery and his
wife, three of the sons, and the husbands of two daughters and their wives,
against Hambleton Helms and four others of the children, all of whom lived out
of the State, and were proceeded against by publication, for the sale of the
land and the slaves of which John W. Helms died possessed. In their bill the
plaintiffs alleged that the land could not be divided among the eleven
children without materially impairing the value of the separate interests.

At the February term, 1863, of the County court, a decree was made, by which
Fleming Howery and George M. Helms were appointed commissioners to sell the
land and slaves -- the land upon a credit of one and two years, and the slaves
upon a credit of six months; or the commissioners might deduct the interest
and receive the whole amount in cash if the purchasers desired it.

Subsequently (but the record does not give the date) Fleming Howery returned a
report, in which he stated that on the 20th of March, 1863, he had made sale
of the land and slaves; and, among the other purchases, he reported that the
home tract of land, containing four hundred and forty-seven acres, was sold to
John W. Helms at $ 30 per acre, equal to $ 13,410; that he had deducted the
interest, as authorized by the decree; and had received in cash, on this
tract, $ 12,203 10.

He made a supplemental report, stating that proceedings had been instituted
against him in Floyd circuit court, by Hambleton Helms' creditors, to get his
share of the proceeds of the sale.

The cause afterwards coming on the report, it was confirmed by the court and a
conveyance to Helms was ordered, and the commissioners were directed to
collect the bonds given for the slaves, and after paying the expenses of sale
and costs of suit, and their commissions, to pay over the balance of the
proceeds of the sale of the land and slaves, one-eleventh thereof to each of
the children of John H. Helms -- the commissioners to retain the share of
Hambleton Helms until it is ascertained who is entitled to it.

In February, 1867, Hambleton Helms and the other parties who had been
proceeded against as absent defendants, in the suit above mentioned, as well
as Roley Simmons and Malinda his wife (the latter a daughter of John M. Helms,
deceased, who had been plaintiffs in the previous suit), instituted a suit in
the Circuit court of Floyd county against Fleming Howery and Eliza his wife,
George M. Helms, John W. Helms and Tazewell Helms, and in their bill they
charged that Howery purchased the tract of four hundred and forty-seven acres
at the sale made by himself, and reported to the court that the land was sold
to John W. Helms; that this report was confirmed and a conveyance was directed
to be made to John W. Helms. They insist that this was a fraud, that the sale
was void, and they ask that it may be set aside.

The bill was dismissed as to Simmons and wife at their own instance, and they
filed their answers as defendants, taking the same grounds as were taken in
the bill; and they say that they have not received any money under the decree
in the first suit.

Fleming Howery, George M. Helms and Tazewell Helms answered the bill. They
objected to the jurisdiction of the court, on the ground that the previous
cause was still pending in the County court, in which all the parties to this
cause were parties. They said the land was purchased by John W. Helms and the
sale reported to the court and confirmed, and Howery was directed to pay the
money to the parties, and also to convey the land to John W. Helms. That he
had collected the money and paid to John W. Helms, George M. Helms, and
Tazewell Helms and his wife, their full distributive shares of said estate.
That Howery, under the direction of the judge of the Circuit court of Floyd,
funded the shares of the non-resident defendants and of the home defendants
who would not receive the money, in bonds of the county of Floyd, in their
names respectively. That it is true Howery did bid for the land, but his
bidding made it sell for much more than it otherwise would have done. They
filed with their answer the deed from Howery to John W. Helms, dated , 1863,
but recorded September 29th, and also a deed from John W. Helms to Howery,
dated December 27th, 1863, and the Floyd county bonds, in which he had
invested the shares of the estate of the parties who lived out of the State or
refused to receive the money.

There was no doubt that Howery purchased the land at the sale made by himself;
and that it sold for a full price. The sale was, of course, during the war,
and for Confederate money.

When the cause came on to be heard, the court made a decree, setting aside the
sale, and the deeds from Howery to John W. Helms and Helms to Howery, and
Howery was directed to convey the land to the heirs of John W. Helms. And
after directing an account of rents, the court being of opinion that the said
tract of land cannot be conveniently partitioned, decreed a sale thereof on
terms mentioned in the decree, with directions to the commissioners to report
to the court. From this decree Howery obtained an appeal.

COUNSEL:

The Attorney-General, for the appellants, insisted that a sale by a
commissioner to himself would not be set aside as a mere matter of course, but
that there must have been something unfair in the mode of conducting the sale.
Custis v. Snead, 12 Gratt. 260; Cox v. McMullin, 14 Id. 82; 2 John. Ch. R.
252; McKey ex'or, &c. v. Young, 4 Hen. & Munf. 430; Anderson & al. v. Fox &
als., 2 Id. 245; Quarles v. Lacy, 4 Munf. 251.

Wade, for the appellees, insisted,

1st. That a sale by a commissioner to himself was a fraud in law, for which
the sale would be set aside. Davoue v. Fanning, 2 John. Ch. R. 252; Michoud v.
Girod, 4 How. U.S. R. 503; Moore v. Hilton, 12 Leigh 1; Buckles v. Lafferty, 2
Rob. R. 292; Baily's adm'x v. Robinsons, 1 Gratt. 4.

2d. That it was no objection that the decree was for a resale out and out, and
not at an outset price. That rule is for the benefit of the party who
complains of the sale, and the appellee could not complain.

JUDGES: JOYNES, J., delivered the opinion of the court. (Staples, J., Absent.
*)

* He had been counsel in the cause.

OPINION: The court is of opinion that it appears, from the evidence in the
cause, that the appellant, Fleming Howery, was the real purchaser of the land
in the proceedings mentioned, at the sale made by him on the 20th day of
March, 1863, as commissioner of the County court, under the decree of that
court, rendered at February term, 1863, although John W. Helms was the nominal
purchaser, and was by the said Howery reported to the said county court as the
real purchaser, and that such purchase by the said Howery, at his own sale,
was fraudulent in contemplation of law; and that any party interested was
entitled to have the said sale set aside and annulled, as of course, without
proof of actual fraud, according to the principles recognized by this court in
the cases of Buckles v. Lafferty, 41 Va. 292; and Baily's adm'x v. Robinsons,
1 Gratt. 4.  And further, that the said Fleming Howery was guilty of a fraud
upon the said County court, as well as upon the plaintiffs in this cause, in
falsely reporting to the said County court that the said John W. Helms was the
real purchaser; and in procuring from the said County court, by means of the
said false representation, a confirmation of the said pretended sale to the
said John W. Helms.

The court is further of opinion that, by reason of the said illegal and
fraudulent conduct of the said Fleming Howery, it was competent for the
plaintiffs in this cause to file their bill in the Circuit court, to have the
said sale, and the deed from the said Fleming Howery, commissioner, to the
said John W. Helms, and the deed from the said John W. Helms to the said
Fleming Howery, set aside and annulled, without resorting to the said County
court for relief; and the more especially, since the said plaintiffs were non-
residents of this Commonwealth, and were ignorant of the said illegal and
fraudulent conduct of the said Fleming Howery until after a final decree had
been rendered in the said County court at September term, 1863.

The court is further of opinion, that it was competent for the said Circuit
court to proceed in this cause to give the plaintiffs full relief, by a
partition or sale of the land in the proceedings mentioned; and that,
although, in a suit for the partition of land, it is the duty of the court,
before making a decree for a sale, to ascertain by an enquiry by a
commissioner, or otherwise, that partition cannot be made in some of the modes
provided by the second and third sections of chapter one hundred and twenty-
four of the Code, without a sale; yet, inasmuch as no such enquiry was asked
in the Circuit court, and the appellants did not suggest to the said court, in
their answer or otherwise, that partition of the said land could be made
without a sale, and as the appellants procured the decree for sale made in the
County court, the appellants cannot raise the objection in this court that the
propriety of a sale was not ascertained by the Circuit court, and insist upon
it as a ground for reversing the decree of that court.

The court is further of opinion that, although it is the usual and proper
course in ordering a resale, in cases like the present, to direct the property
to be offered at an upset price, that practice is adopted for the advantage of
the parties interested in the property, and for whose benefit the resale is to
be made, so that the said Fleming Howery cannot object to the decree of the
Circuit court upon the ground that it contains no such direction. And as the
appellants, George M. Helms, John W. Helms, and Tazewell Helms, have received
from said Fleming Howery their several shares of the proceeds of the sale made
under the decree of the County court, and with a full knowledge of all the
facts, insist that the said sale ought to stand and be confirmed, the court is
of opinion that they must be taken to have ratified the said sale, and that
the shares of the proceeds of the sale to be made under the decree of the
Circuit court, which would otherwise have belonged to them, will belong to the
said Fleming Howery; so that the said appellants cannot object to the decree
of the Circuit court, because it does not direct the property to be offered at
an upset price.

The court is further of opinion that, inasmuch as the sale of the land, and
the title of the appellant, Fleming Howery, are set aside and annulled in
consequence of the illegal and fraudulent conduct of said Fleming Howery, he
has no right to throw upon the appellees any risk of loss from the investment
in the bonds of Floyd county; and that all that he can properly ask is that
said bonds shall be delivered to him as his own property, as directed by the
said Circuit court.

The court is therefore of opinion that there is no error in the principles of
the said decree of the said Circuit court.

But the court is of opinion that the said Circuit court ought to have directed
an enquiry to ascertain what is the interest of Hambleton Helms in the land in
the proceedings mentioned, and that the said land should not be sold until
after such enquiry had been made and the result thereof ascertained; and
further, that the said Circuit court should not have directed the said Fleming
Howery to convey the land in the proceedings mentioned to the heirs of John W.
Helms, dec'd, as such a conveyance is not necessary, and it would have the
effect of vesting interests in the said land in the appellants, George M.
Helms, John W. Helms, and Tazewell Helms, who are not entitled to any such
interest; and that the said decree of the Circuit court ought to be corrected
and amended in those particulars. Therefore, it is decreed and ordered that
the said decree of the said Circuit court be amended in the particulars before
mentioned, and that the said decree, as so amended, be affirmed; and that the
appellants pay to the appellees their costs by them expended in this court,
and thirty dollars damages; which is ordered to be certified to the said
Circuit court of Floyd county.

Decree amended and affirmed.