the statements therein contained were true to the best of 1879. his knowledge and belief. January berry & al. Exhibit A, filed with the said bill, is a copy of the deed of the 15th of November, 1847, before referred to, "be- Quesentween John P. Fant of the first part, Albert Quesenberry of the second part, and Julia A. Quesenberry of the third part." In the answer of the said defendant he admits the truth of the allegations in the bill, and submits the subject to the discretion of the court; and by an affidavit annexed to said answer it appears that respondent made oath that the statements therein contained were true to the best of his knowledge and belief. In the only deposition taken in the case, to-wit: that of Richard T. Nalle, which was "taken in the presence of James Barbour, counsel for Julia A. Quesenberry and her infant children, George S. M. Payne, next friend to the said parties, and Albert Quesenberry, to be read as evidence in" the said case; the said deponent being first duly sworn, deposed and said as follows, to-wit: "That he well knows the land conveyed by the late John P. Fant to Albert Quesenberry in trust for his wife and children, and he knows that the buildings are insufficient for the comfortable residence of the family.' In the decree made in the case on the same day, towit: the 18th of June, 1850, it was decreed " that Albert Quesenberry, after first advertising the time and place of sale for at least six weeks, do proceed to sell the tract of land in the bill mentioned at public sale to the highest bidder, upon such terms of credit as he may deem most expedient for the cestuis que trust in the bill mentioned, and that he report his proceedings under this decree to this court whenever he shall effect a sale." On the 21st of March, 1853, the said commissioner reported to the said court that in pursuance of the said VOL. XXXI-63. N. Barbour. 1879. Term. & al. V. Barbour. decree of the 18th of June, 1850, "he did, after having advertised the same for six weeks, expose to sale at public auction, on the premises, the land aforesaid, on the Quesen- 28th day of June, 1852, when and where Winfield S. berry Coons became the purchaser at $8 per acre, upon the following terms, to-wit: one-third for cash, the balance in five equal annual payments, with interest from the day of sale, as follows, viz:" Then follows a statement showing the gross amount of the sale, the expenses deducted therefrom, and the net proceeds. And the report thus concludes: "Leaving in the hands of your commissioner the above amount of $2,491.11, for which amount the said Coons has executed his bonds as follows: The first bond for the sum of $816.893, payable on demand, it being for the cash payment, and five other bonds for $334.84 1-5 each, bearing date with the first, towit: the 28th day of June, 1852, payable annually for five years from the date aforesaid, with the interest from their dates respectively." On the same day, to-wit: the 21st of March, 1853, the cause coming on again to be heard on the papers formerly read and the said report of the commissioner, was argued by counsel, on consideration whereof it was decreed that the said report be confirmed, and that the said commissioner do execute a deed with special warranty to said Coons for the land in the bill mentioned on payment of the last instalment of the purchase money. To the introduction of which record the plaintiffs objected, and moved the court to exclude the same; but the court, stating that it would only give to said record the weight to which it was entitled, overruled the said motion; to which opinion of the court the plaintiff's excepted; and this being all the evidence in the case the court rendered a judgment for the defendant; to which opinion and judgment the plaintiffs excepted. January The plaintiffs applied to a judge of this court for a 1879. writ of error to the said judgment; which was accordingly awarded. The only assignment of error made in the petition for Quesena writ of error in this case is in these words: "Your petitioners are advised that the said judgment was erroneous because they have never been divested of their interest in said tract of land. The proceedings in the county court of Culpeper in the name of Julia A. Quesenberry, &c., by George S. M. Payne, their next friend, against Albert Quesenberry, in which said land was decreed to be sold, was not binding upon your petitioners because they were not properly before the court. This proceeding was evidently intended to be under the act passed January 20th, 1832, entitled an act authorizing the sale of trust estates in certain cases.' See supplement to the Revised Code, p. 208, ch. 150. But your petitioners are advised that said proceedings were not in conformity with the requirements of said act, so as to bind these petitioners by the decree of said court.” The court is of opinion that the said proceedings were in substantial, if not literal, conformity with the requirements if the said act, and were binding on the parties thereto, and the sale made under the decree rendered therein was a valid sale, and conferred a good title on the purchaser. The subject was undoubtedly within the jurisdiction of the court which rendered the decree. It was the sale of a trust estate; and one, too, in which infants were interested; in each of which cases the statute law existing at the time of the rendition of the decree authorized the court to make the same. The judgment or decree of a court of competent jurisdiction over the subject matter thereof is conclusive against the parties thereto until it is set aside or reversed by some proceeding in berry & al. V. Barbour. 1879. the case in the same or an appellate court. It cannot January be set aside or annulled in any collateral proceeding. Term. & al. V. Barbour. The authorities on this subject are very numerous, and Quesen many of them are cited in the pointed argument of the berry learned counsel for the defendant in error in this case. The following are cited from the decisions of this court: Fisher v. Bassett, 9 Leigh, 119; Ballard & als. v Thomas & Ammon, 19 Gratt. 14; Devaughn v. Devaughan, Id. 556; and Durrett v. Davis, 24 Id. 302. And the following are cited from the decisions of the supreme court of the United States, some of which, he truly says, "are extremely apposite": Kempe's lessee v. Kennedy, 5 Cranch. 173; Thompson v. Tolmie & als., 2 Pet. R. 157; Ex parte Watkins, 3 Id. 193; Vorhees v. Bank of U. S., 10 Id. 449; Grignon's lessee v. Astor, 2 How. U. S. R. 319; Florentine v. Barton, 2 Wall. U. S. R. 210; Harvey v. Tyler, 1d. 328; and Mc Goon v. Scales, 9 Id. 23. In Faulkner v. Davis & als., 18 Gratt. 651, decided by this court in 1868, the subject of such sales was very fully considered in an opinion in which all the judges concurred. Two other cases were cited by the same counsel from the decisions of this court to show that even if the decree for the sale of the land in controversy were reversed or set aside, the title of the purchaser would not be affected thereby; according to the statute which declares that "if a sale of property be made under a decree or order of a court after six months from the date thereof, and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby." The cases here referred to are Cooper v. Hepburn, &c., 15 Gratt. 551; and Dixon, &c., v. Mc Cue's adm'r, &c., 21 Id. 373. The sale in this case was made more than six months after the date of the decree of sale, and more than six months after the Code of 1849 went into effect, in which Code the above statutory provision was made. 1879. January Term. berry & al. V. Barbour. But there was really no ground for reversing or setting aside the said decree, even by a regular proceeding Quesenfor that purpose in the same or an appellate court. The learned counsel for the plaintiff in error seem to suppose that it was error to make the infant parties plaintiffs instead of defendants, and that therefore the decree was not binding upon them, they in effect, as said counsel contend, not being parties to the suit. There is nothing in the statute which requires them to be made defendants instead of plaintiffs. If they had been defendants they would not have been required to answer in person, none of them being as much as fourteen years of age. They would have answered, like any other infant defendants, by a guardian ad litem. They appeared in this case and filed their bill by their next friend, who was, no doubt, a very fit person for the purpose, and made oath to the facts stated in the bill, which were also fully proved by a witness who was examined in the mode prescribed by law in such cases, and whose veracity is unimpeached, and no doubt unimpeachable. And their mother was a co-plaintiff with them, and their father, who was the only defendant in the case, also made oath to the truth of the facts stated in the bill. That father was selected by the donor of the estate as the only trustee to hold it for the benefit of his wife during her life and of her children after her death; and there is no reason for believing that he was unworthy of the trust reposed in him. The court is therefore of opinion that there is no error in the judgment, and that it ought to be affirmed. JUDGMENT AFFIRMED. |