| W. Va. | Sep 11, 1876
On the twenty-fourth day of February, 1874, George JDavis and Theodore Moore executed a deed of trusty by Which they conveyed to William Alexander, 'trbátefij' a lot of land on the north side of Elk river, opposite the town of Charleston, in the county of Kanawha, on which the parties had,-or were erecting, a machine shop, blacksmith shop; and other buildings* together with certain personal property, to wit, an engine and boiler, shafting-hangings, pulleys,.&c., one eighteen and one fifteen-foot lathe, one drill, one plainer, belting,.lot gas-pipe tools, shop tools, and all other tools necessary for machine and engine building, now on the premises, or that may be hereafter on the premises, including blacksmith tools.. Also, all the tools used in the foundry, and patterns for foundry use, now bought and owned by the parties of the first part, or hereafter used on the premises. In trust, to secure James A. Grajr $5,275, payable in instalments, with power to the trustee to sell for cash, such portion of the property as may be necessary to pay off and satisfy the amount then due, &c. It appears that George W. Atkinson was the owner of one-third of said property.
In November, 1872, all three of the parties conveyed the same to the plaintiff, at the consideration of twenty-five thousand dollars.
The plaintiff was to pay the debt secured to Gray by the deed of trust.
The plaintiff obtained an injunction to stay the sale of the realty, mainly on the ground that the property ought to be sold as a whole; that a mere sale of the realty would produce great loss to them, as the personal property would be of little, or no, value when separated from the realty; in short, that this property was a foundry property, a mach/iae and manufacturing property, and to make it valuable'for use, it was necessary all the property, real and personal, should be kept together. They alleged that they had paid something to the creditors. It was admitted.by Gray, in his answer, that $454.18 had been paid in September, 1873.
The defendants filed separate answers, claiming that the action of the trustee was legal, and that he ought to be allowed to make said sale. The trustee justifies his action on the ground that he had understood that all the personal properly had been worn out, and that all that was of a personal nature, would be fixtures, and pass with the realty.
Upon the hearing of the cause, the court decreed that the $454.18 should be applied to the remaining instal-ments, eight in number, as of the date of twenty-seventh of September, 1873, and that the injunction should be dissolved, arid the bill dismissed with costs to the defendants.
The Stove Company appealed to this Court from this decree.
When a man takes upon himself the office of trustee, he becomes the impartial agent of all the parties in interest, and it is his duty so to act, as to promote, and pro-
I am, therefore, of opinion that the court erred in dissolving the- injunction, and dismissing the bill, instead of which, it should have ordered the trustee to proceed to sell the property as a whole, under the control of the court., so as to avoid any sacrifice thereof.
The decree of the circuit court is therefore reversed, with costs to the appellant.
And this Court, pi’oceeding to render such decree as the circuit court should have rendered, it is adjudged, ordered, and decreed, that the credit of $458.18 in the proceedings in this cause mentioned, be applied, as of the date of the twenty-seventh day of September, 1873, to the payment of the first instalment, to wit, to the one for the sum of $175, payable August 15, 1872, and the residue of that sum be applied as a credit upon the note payable February 15, 1873. And that if the plaintiff
And that he report his proceedings to the circuit court of Kanawha county.
Which is ordered to be certified to the circuit court of Kanawha county.
Decree Reversed.