Staunton spectator. [volume] (Staunton, Va.) 182?-183?, 1831-10-14

9th day of January, 1881.
Between Robert Wiley, plaintiff, and
Nash l.. Pitzer, and Benjamin Welch,
ed'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
plaintiffs in this cause, to participate in
the proceeds of the real estate in the
bills mentioned, upon paying ain equiva-
lentproportion of the costs: 81 this cause
came oh to be heard this 9th day of ia
nuary, 1881 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
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-
cri6ced i'll the market from the idea that
decree rendered in this court, on the
18th day of July, 1929, 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 his
heirs, in satisfaction of their claim, con-
stituted specific charge upon the pro-
perty. In this application, the counsel
for Caruthers's administrators, in said
suit, insisted that by the decree aforesaid
in favor. of Caruthers's administrators,
they had obtained legal preference to
satisfaction oftheir claim out ofthe real
assets of John Pitzer, dec. and in case
the sale was confirmed, they would in
sist upon subjecting the property in the
bands of the purchaser under the decree
aforesaid, to satisfy their claim, and the
question as to the validity Of said sale,
and the nature of the claim held by Ca
ruthers's administrators upon the pro-
perty, under the decree aforesaid, were
argued by counsel, and maturely con-
sidered by the court :-Whereupon the
court is of opinion, for reasons assigned
in writing, and filed with the papers in
this cause, that the decree of Carbthers's
administrators Us. Pitzer's administra-
tors and heirs, above referred to, mas
much as the claim of the plaintiffs was
not then, and is not now ascertained, is
nothing more than a decree quod COM
putet, and cannot give to the administra-
tors of VIM. Caruthers, dec. a prior
right to satisfaction out of the real assets
OF John PitZer, dec. over the other spe-
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 as none
OF the creditors of John Pitzer, dec, who
are seeking to charge the real assets by
descent, i'll the hands of his heirs, have
obtained judgments at law, against the
heirs, that no priority has been obtained
in the administration of the real assets,
and that the decree of the Oath Deem
Der, 1929, made in the above cause OF
Wiley cs. Pitzer, Sc, directing the real
estate in the hands Of the heirs of John
Pitzer, dec, to be sold in satisfaction of
Wiley's claim, which was an ascertain
ed demand, was decree which enured |
to the benefit of all the specially creditors
of the said Pitzer, dec, in which his !
heirs were bound, and draws the admin
istration ofthe real assets by descent, of
John Pitzer, dec. into this COURT be-
ing fund out of which such creditors,
under such circumstances are entitled to !
be paid pari passu-and among them
Robert and Hazlet Kyle, being special
ty creditors Of the said John Pitzer, in |
which his heirs are bound, and George |
Poage, in his own right, and as admins
traitor of John Poage, dec, for the a
mount of the claims set forth in his bill, !
as standing in the place of specially crea
ditors by obligations, i'll which the heirs
were bound, who have been satisfied !
(as appears from commissioner Woods |
report, filed with the papers in this
cause,) out of the personal estate of John
Pitzer, dec. 1t is, therefore adjudged,
ordered, and decreed, that this cause be
referred to Master Commissioner Tho
mas J. Niche, with instructions to re-
port to this court the amount due to the !
plaintiffs, upon their several judgments,
and also, to report all unsatisfed de- |
mands against John Pitzer, dec, consti- ,
tuting charge upon the real assets in
the hands of his heirs-frst calling up /
on such creditors as are not parties TO |
this suit, by advertisement, Tor sixty .
days, in the Staunton Spectator, to pre- |,
sent their claims before him for adjust
ment. 4 copy. Teste,
WM. S. ESKRIDGE, c. c. c.