#### Davis & Wife v. Crews.

March, 1845,

Richmond.

(Absent Stanard,* J.)

1. Decrees—Award of Arbitrators—Pinal Decree—Reversal of.†—D. and wife plaintiffs, and C. defendant in equity, agree to refer the matters in controversy in the cause, to arbitrators; their award to he entered as the decree of the court. The award is made, hy which D. is directed to pay to C. 994 dollars 22 cents, with interest; and that O. within ninety days after the award shall he entered as the decree of the court, shall convey to the wife of D. a good title to the property in controversy; and if he failed to do sq, he should pay her 1500 dollars. The award is entered as the decree of the court; and C. fails to convey the property within the ninety days. Hui/d, Í. This is a final decree which can only he reversed or altered hy hill of review. 2. The conveyance must he made within the ninety days, or C. is hound to take the property, and pay the 1500 dollars.

*2. Same —Same — Directing an Account. — D. and wife coming into court some four or five .years after the decree, and asking for an award of execution for the sum decreed them conditionally, with interest; and D. having had possession of the property referred to in the decree; it is proper for the court to direct an account of subsequent transactions between the parties; and to award execution in favour of the party ascertained hy that account to he the creditor of the other.

- James Franklin of the counts’- of Amherst, died in the year 1813. By his will, *173he, among other things, devised to his daughters Nancy C. and Elizabeth H. Franklin each, an undivided moiety of his milt with its appurtenances, in the county of Amherst, called the Montpelier mills; subject to a charge of 2000 dollars in favour of his daughter Sally W. Franklin, to be raised out of the profits thereof. At the time of his death all his children were minors ; and Thomas Crews qualified as the executor of the will, and guardian of the children.

In 1817, Crews sold the mills, and conveyed them to the purchaser with general warranty: and in 1819, Nancy C. Franklin having then attained the age of twenty-one years, executed a deed confirming the title of the purchaser to one undivided moiety of the property. In 1823, Nancy C. having married Henry L. Davis, they filed a bill in the late superior court of chancery for the Lynchburg district, against Crews as executor of Franklin, and former guardian of the female plaintiff, and the other parties interested under the will of James Franklin, seeking a settlement of Crew’s accounts as executor, and guardian, charging that the sale and conveyance made by Crews of the Montpelier mills was injudicious, illegal, and prejudicial to the interests of the plaintiffs; and that the confirmation thereof by the female plaintiff, was procured from her by undue influence, very shortly after she attained her full age: and proposing to Crews the alternative of returning the property, with the rents accrued after a period, which, according *to an estimate made by them, it would have taken to raise the sum of 2000 dollars for Sally W. Franklin, if it had not been sold; or paying to them the purchase money received for it, with interest from the time it was received.

Soon after the institution of this suit, Crews, that he might be enabled to restore the property to the female plaintiff and her sister, purchased it from a certain James Powell, to whom it had come by a regular chain of conveyances from the vendee of Crews, for the sum of 3000 dollars; and executed his three bonds of a thousand dollars each, for the purchase monejT; but Powell’s wife did not unite in the conveyance. He then answered the bill, offering to reconvey the property to the female plaintiff and her sister. The accounts were referred to a commissioner, who reported a large balance due to the executor. To this account the plaintiffs filed numerous exceptions; but before they were passed upon by the court, the parties interested referred the whole matters in controversy to arbitrators, whose award was to be entered up as the decree of the court.

On the 15th of December 1828, the arbitrators made their award, by which they directed that the plaintiff Davis should pay to Crews the sum of 994 dollars 22 cents, with interest on 704 dollars 19 cents from December 31st, 1825 till paid ; and that Crews, within ninety days after the award should be entered up as the decree of the court, should convey to Nancy C. Davis as good a title to one undivided moiety of the Montpelier mills and appurtenances as he held prior to the conveyance by her to the purchaser from Crews : and if she should fail to do so, he should pay her 1500 dollars. And that Crews should issue no execution against Davis for the sum directed to be paid by him, until such complete title as aforesaid should be tendered to Nancy C. Davis. On the 22d of October 1829 this award was entered as the decree of the court: and the cause was retained on *the docket for the purpose of enforcing it, if it should become necessary. Crews did not make the conveyance to Nancy C. Davis in the time prescribed by the award; but Henry L. Davis, having been put into possession of the undivided moiety of the property in October 1825 as tenant, continued in possession until 1834.

In 1832, Davis and wife gave notice to Crews, that at the next term of the circuit superior court of law and chancery for the town of Lynchburg, they would move the court for award of execution against him for 1500 dollars, with interest from the 31st of December 1825, till paid, under the award and decree aforesaid. When this motion came on to be heard, the court, by consent of parties, made an order directing a commissioner to state an account between the parties since the 31st of December 1825. The commissioner made a report, which' the court on the 1st of February 1834 set aside; and then expressing the opinion that Crews had failed to comply with the award and decree thereupon of 1829, in that he had not conveyed to the plaintiff Nancy C. Davis as good and perfect a title without incumbrance, to one undivided moiety of the Montpelier mills as she held before the conveyance by Crews; he authorized the plaintiffs, at any time during that term of the court, to elect to hold the mills without paying rent therefor from the 22d of October 1829, provided, they chose to look to Crews thereafter to remove all outstanding incumbrances on the property. But the plaintiffs were not to have the benefit of this election, if Crews, within sixty days from the date of this decree, should remove all incumbrances from the mills. But if he failed to remove the incumbrances within the sixty days, and the plaintiffs declined to take the mills, it was decreed that one of the commissioners of the court should state the accounts between the parties, by crediting the defendant Crews with the sum decreed to him by the decree of *1829, and interest thereupon according to said decree; and any other credits he might shew himself entitled to against the plaintiffs since the date of said decree; and with a fair annual rent for the mills from the date of the decree of 1829 till they should be surrendered to him. And that said Crews should be debited in said account with the sum decreed against him by the decree of 1829, with interest thereon from the 31st of December 1825; and all such other sums as the plaintiffs might shew themselves enti*174tied to charge him with, since the date of said decree; together with all charges paid by the plaintiffs for the usual and necessary annual repairs of the mills, being such repairs as were contemplated by a contract between the parties, and incident to the first three years that the plaintiff Henry L. Davis held them as tenant.; and for such repairs as Crews would have been compelled to encounter and pay for, had the said property remained in his. hands. The. plaintiffs immediately declined to take the mills upon the terms prescribed in the decree ; and the court then proceeded to decree that Crews should pay and satisfy all incumbrances on the property, and all other moneys due the plaintiffs; and if the parties disagreed as to what was a lien upon the property, or a satisfaction thereof, then that these subjects, respectively, as well as the accounts before ordered, be referred to one of the commissioners of the court to examine and report thereon.

The commissioner, to whom the matters in the above decree were referred, stated in his report that, the parties disagreed as to what constituted a lien on the property; and he therefore reported the title, and the facts ip relation to two liens alleged by the plaintiffs to exist on the property. The title was regularly deduced from the conveyance by Crews in 1817, and the plaintiff Nancy C. in 1819, to Crews again in October 1824; and the wife of Powell, from whom Crews purchased, having died in 1832, there was no objection to the title on account of her claim for dower. *The first lien reported on by the commissioner, was claimed by Samuel Garland, to whom Powell had assigned Crews’s bonds for the purchase money. Garland had filed a bill in the superior court for the county of Amherst, in November 1831, against Crews and Powell, to enforce the vendor’s equitable lien on the land for the purchase money; but the court decided the case against him, and dismissed his bill: and from this decree, no appeal had been taken. Garland had obtained judgments upon these bonds, one in November 1830, and another in May 1831, previous to filing his bill, above mentioned; and it was objected that the lien of the judgments bound the land; but it appeared that when Powell sold the land to Crews, he knew that the plaintiffs had filed a bill impeaching the deed made by the female plaintiff; and that the suit was then pending : and that the land was purchased by Crews for the purpose of restoring it to the plaintiffs.

The second lien reported’on by the commissioner, was in favour of the Mutual Assurance Society. In November 1812, James Franklin, the testator of the female plaintiff, declared for insurance in the Mutual Assurance, Society on the mills in controversy. In ,1819, 1820, 1821, 1822, certain quotas upon this property,’ amounting on the 1st of April 1831, to 132 dollars 13 cents, fell due. For this sum the society had obtained a decree in the superior court of Amherst county; and it appeared that before the final decree in the court below, the mill houses had been sold under this decree, and purchased by H, E. Brown, who had married Elizabeth H. Franklin, for the sum of three hundred dollars.

The commissioner also stated an account between the parties, by ■yyhich it appeared that Crews was indebted to the plaintiffs, on the 15th of October 1834, in the sum of 926 dollars 59 cents, with interest on. 827 dollars 31 cents, a part thereof, from that date till paid. To the report of the commissioner on the title, as well as *on the accounts between the parties, the plaintiffs filed exceptions; and the defendants filed exceptions to the report of the accounts between the parties.

The cause came on finally to be heard on the 12th day of February 1835, when the' court was of opinion that Garland’s judgments created no lien upon the property. That Crews having accounted for all the rents of the mills up to 1829, at the time of the award, was not bound to discharge the decree in favour of the Mutual Assurance Society; and that the deed which he had made to the female plaintiff conveyed a good title, free from all incumbrances which he was bound to remove, to the one undivided moiety of the Montpelier mills. The court therefore overruled the motion of the plaintiffs; and gave to Crews an execution against the plaintiffs for the sum of 994 dollars 22 cents, with interest on 704 dollars 19 cents from the 31st of December 1825, till paid; that being the amount allowed him by the award and the decree thereon of October 1829. From this decree the plaintiffs obtained an appeal to this court.

C. & G. N. Johnson, for the appellants.

Stanard, for the appellee.

*

He had been counsel in the cause.

†

Decrees—When Pinal—When Interlocutory.—See *foot-note*to Fleming v. Bolling, 8 Gratt. 292.

The principal case is cited in this connection in Manion v. Fahy, 11 W. Va. 493.

See generally, monographic *note*on “Decrees” appended to Evans v. Spurgin, 11 Gratt. 615.

B ADD WIN, J.,

delivered the opinion of the court.

The court is of opinion, that by the award of arbitrators in the proceedings mentioned, the matters then in controversy in this cause between the parties thereto, were finally settled and determined; and that the decree of the late superior court of chancery for the town of Eynchburg, in which the cause was then pending, of the 22d of October 1829, confirming said award, and decreeing. the matters thereof, was a final decree, which it was not competent for the said circuit superior court in any wise afterwards to reverse or alter, unless upon a bill of review filed for that purpose: that the effect of "'said award and decree was to subject the appellant Davis to payment to the appellee of the sum of 994 dollars 72 cents, with interest on 704 dollars 19 cents, part thereof, from the 31st of December 1825, till paid; and in the event of the appellee’s failure to reconvey within ninety days from the date of said decree, to the female appellant, as therein directed, the undivided moiety of the mill property therein mentioned, to constitute him the absolute owner of said undivided *175moiety from the date of said decree, and to subject him to payment to the appellants therefor, of the sum of 1500 dollars; but to suspend execution for the moneys so decreed until the further order of the court; and that the further proceedings in the cause of the said circuit superior court subsequent to said decree, except so far as they provided for the due execution thereof, were irregular and erroneous. And the court is further of opinion, that though the suspension by said decree of execution for the moneys thereby decreed, did not render it the less final in its character, yet that upon the motion of the appellants in the proceedings mentioned, for award of execution upon said decree for the balance due them thereupon, of said sum of 1500 dollars, it was proper for the court, to enable it to act advisedly upon the subject, to direct an account between the parties, upon the principles of so much of its decretal order of the 1st of February 1834, as directs such account, but with the following modifications, to wit: no allowance of interest on said sum of 1500 dollars ought to have been directed anterior to the date of the said decree of the 22d of October 1829; and the allowance to the appellants for one-half of the repairs of the mills ought not to have been permittted to exceed the aggregate amount of the rents during the whole period for which said rents accrued, unless authorized by some agreement of the parties. And the court is further of opinion, that upon the principles aforesaid, modified as aforesaid, the said circuit superior court ought *to have proceeded to ascertain the balance due, whether to the appellants or the appellee, of the moneys decreed to them respectively as aforesaid, by deciding upon the exceptions filed by the parties to so much of the report of the commissioner, made in obedience to said decretal order, as relates to said matters of account between them, and by the recommitment of said report, if necessary ; and that after so ascertaining such balance, the said circuit superior court ought to have awarded execution therefor, in favour of the appellants or of the appellee, as the case might be, and also for the costs expended by the successful party in the prosecution or defence of said motion. Wherefore it is decreed and ordered that the said decree of the said circuit superior court, first above mentioned, be reversed and annulled, with costs to appellants. And- it is further decreed and ordered, that the cause be remanded to the said circuit superior court,' for further proceedings to be had therein, according to the principles of the foregoing opinion and decree. But this decree is to be without prejudice to any suit which the appellants may be advised to bring for the purpose of enforcing a lien, if any they have, Upon the said undivided moiety of said mill property, for any balance which may be found in their favour of the money decreed to them by the said decree of the 22d of October 1829; and without prejudice to any suit which the appellee may be advised to bring, for the purpose of obtaining relief, if any he be entitled to, in consequence of the sale of said mill property, to raise the quotas of insurance which were due to the Mutual Assurance Society, and the purchase thereof by Howell B. Brown, in the proceedings mentioned.