Staunton spectator. [volume] (Staunton, Va.) 182?-183?, 1831-09-09


Clorerdale, 10th Aug. 1881.
VIRGINIA: At a Superior Court of
Chancery,holden at Staunton, on the
9th day OF January, 1881.
Between Robert Wiley, plaintiff, and
Nash l.. Pitzer, and Benjamin Welch,
ad'mrs Of John Pitzer, dec. and the
widow and heirs of said John, defts.
On the motion of George Poage, in
his own right, and as administrator of
John Poage, dec. and of Robert and
Hazlett Kyle, they are admitted party
PiaintiiiS IN this cause, to participate in
the proceeds of the real estate in the
bills mentioned, upon paying an equiya-
lent proportion of the costs; u this cause
came on to be heard this 9th dav of ia
nuary, 3l,upon the bills. answers, de-
positions and exhibits, together with
the report of the marshal, as to the sale
OF the real estate, made in pursuance of
decretal order, pronounced in the cause,
on the oath of December, 1929, upon a
motion submitted by the counsel, for the
administrators and heirs of John Pitzer,
dec, to set aside the sale aforesaid, con-
tending that the property had been sa-
crltlced in the market from the idea that
a decree rendered in this court on the
18th day of July, 1899, in behalf of the
administrators of VIM. Caruthers, dec
who are plaintiffs in another suit de.
pending in this court rs. the same defen.
dants, seeking to charge the real estate
OF John Pitzer, dec. in the hands Of hi,
heirs, in satisfaction of their claim, con.
stituted specific charge upon the pro
perry. In this application, the counsel
Tor Caruthers's administrators, in sail
suit, insisted that by the decree aforesaid
in favor of Caruthers's administrators,
they had obtained legal preference %
a satisfaction Of their claim out oft rel
assets of John Pitzer, dec. and in cae
the sale was confirmed, they would IL
sist upon subjecting the property in tie
bands of the purchaser under the deere
aforesaid, to satisfy their claim, and tie
question as to the validity of said sac,
and the nature of the claim held by Ca
ruthers's administrators upon the p.o-
perty, under the decree aforesaid, were
argued by counsel, and maturely con-
sidered by the court w hereupon The
court is of opinion, for reasons assigned
in writing, and filed with the papen in
this cause, that the decree of Caruthrs's
administrators rs. Pitzer's adminidra-
tors and heirs, above referred to, mas
much as the claim of the plaintiffs was
not then, and is not now ascertaind, is
nothing more than decree quod tom- |
putet, and cannot give to the adminbtra-
tors of VIM. Caruthers, dec. a prior
right to satisfaction out of the real assets
OF John Pitzer, dec. over the otherspe-
cialty creditors of John Pitzer, dec, who
are claiming by obligations in which the
heirs of said Pitzer are bound-The
court is further of opinion that!a none
OF the creditors of John Pitzer, dec, who
are seeking to charge the real assets by
descent, in the hands of his heir have \
obtained Judgments at law, against the
heirs, that no priority has been obtainedi
i'll the administration Of the red assets
and that the decree of the 9th Decent
Der, 1929 made in the aboveicluse Of
Wiley rs. Pitzer, &c, directing the real
estate in the hands oC the heirs of John
Pitzer, dec, to be sold in satishction of
Wiley's claim, which was an Iacertam-
ed demand, was decree whicb epnrpd
to the benefit of all the specialtcreditorsjHH
of the said Pitzer, dec, inlwhich his
heirs were bound, and drawsfbe admin :
of the real assets byJescent a :
IsNl, I
ing fund out Of which such creditor. !,
under such circumstances, areentitIedlo
be paid pari passu-and fmong them '
Robert and Hazlet Kyle, beng special :
ty creditors of the said John Pitzer in
which his heirs are bound, and George ,
Poage, in his own right, sDi as admihis-
traitor of John Poage, dec, for the a
mount of the claims set forth in his bill, :
as standing in the place 'of specially Gre }
dltors by obligations, in which the heirs .
were bound, who have been satisfied. a.,
Gas appears from commissioner Woods ;
report, filed with The papers in this }
cause out of the personal estate of John ,
Pitzer, dec. 1t is, therefore adiudged,
and dccree6 that this cause be ,
'eferred to MasteriC Commissioner Tho :
mas j. Niche, with INSTITUTIONS to re-
port TO this court the amount due to the i,
plaintiffs, upon their sevcra judgments, ; ;
md also, TO report all dissatisfied de- p
hands against John Pitze6 dec, consti- =
uting charge upon Ee real assets in =
he hands of his eirs-lfrst calling up i
N such creditors as re not parties to s