58 W. Va. 408 | W. Va. | 1905
The Vincents owned Lot No. 37 (sometimes in the record designated No. 27) in the Town of Thomas, Tucker county, and borrowed from the Monumental Savings and Loan Association $600 in two sums, $300 the 25th of August, 1896, and $300 the 20th of January, 1897; and executed two deeds of trust at the dates mentioned upon the said lot and premises to secure the same. In 1897 Joseph Vincent, one of the parties, became the sole owner of the said lot and conveyed the same to B. Baker, the said Baker assuming the debts aforesaid. In 1898, Baker conveyed the same to Chester Brumbaugh for $1,170, taking a check as the cash payment of $390 from said Brum-baugh and his two notes at six and twelve months for $390 each, reserving a vendor’s lien to secure the purchase money. The check was not paid.
At April Buies, 1901, Baker brought his suit in the circuit court of Tucker county against Clayton Brumbaugh, administrator of Chester Brumbaugh who had died,-Brum-baugh, father and heir at law of Chester Brumbaugh, and the Monumental Savings and Loan Association, defendants, for
At the May Buies, 1903, Baker filed his bill in the circuit court of Tucker county against Clayton Brumbaugh, administrator of Chester Brumbaugh, the Monumental Savings and Loan Association, the Scottish Union & National Insurance Co., and J. P. Scott, special commissioner, enjoining and restraining them from collecting the two notes of $167 each; and that the commissioner be required to retain all of said money, then in his hands or to come into his hands from said notes, and that he be in the end directed to pay such cash then in his hands and the notes to be collected to the plaintiff; and that any further claim of the Monumental Savings and Loan Association or the Scottish Union and National Insurance Company be held to be void as against said special commissioner, and for general relief. The injunction was granted as prayed for. The Scottish Union and National Insurance Company filed its demurrer and answer, which demurrer was overruled by the court. Depositions were taken and the cause came on to be heard on the 25th day of March, 1905, upon the bill and answer of the Scottish Union and National Insurance Company and exhibits filed therewith, and the general replication thereto, former orders and decrees, upon the depositions duly taken and filed on behalf of the plaintiff, when the court held that the lien of the Monumental Savings and Loan Association on Lot No. 37 was discharged by the payment to said association of the amount due it by the Scottish Union and National Insurance Company under the said policies of insurance; and the said defendant Scott, special commissioner, was restrained and enjoined from paying to the Scottish Union and National Insurance Company or the Monumental Savings and Loan Association, their agents or assigns, the money arising from the sale of ■ the real estate in this cause; and it was decreed that said commissioner pay the
The only question really involved in the cause is, whether the appellant insurance company had a right to purchase from the Monumental Savings and Loan Association its lien for $366.50 which had been reported by the commissioner as the first lien upon the lot No. 37, and so decreed to said association, and to be. subrogated to the rights of said association under said decree or whether the payment of said sum to the association was a discharge of the lien. It is contended by counsel for appellant that the decree of March T, 1902, fixing the priorities of the liens and making the amount in question the first lien and directing its payment in that order was res adjuclieata and it was too late to change the priorities and to disturb its relation. It is not a question of res adjudicate/,, as it would be if the purpose was to change its relation as a lien, but a question of the subsequent payment of the decree by the appellant company.
Plaintiff Baker conveyed the lot No. 31 to Chester Brum-baugh by deed dated December 10, 1898, reserving his vendor’s lien for the purchase money, from which time he ceased to own the lot q>r have any other or further interest in it than his vendor’s lien upon it. It is true he had an insurable interest in the property for the further security of his lien, but he took out no insurance upon it. After the policies first taken out by the Vincents expired, on the 27 th day of January, 1900, and the 4th day of September, 1900, the Monumental Association, without the knowledge that Baker had conveyed the property more than a year prior thereto to Chester Brum-baugh, took out two policies of insurance of $300 each in the name of B. Baker in the appellant company, loss, if any, payable to the said Monumental Association, as a further security for their said two loans. This the Association had an unquestioned right to do for its own benefit. The fire which destroyed the property insured occurred November 12, 1901,
For the reasons herein given, the decree of the circuit court of Tucker county is reversed and set aside, the injunction dissolved, and the plaintiff’s bill dismissed.
Sever sed.