7 W. Va. 454 | W. Va. | 1874
This is a case of an attachment in equity. Complainant proceeded against the Rathbone Oil Tract Company, as a non-resident of this State, and its agent Wells, alleging that the Company had, at the commencement of tbe proceeding, estate in the county of Wirt, in this State. The proceeding was. commenced in February, 1867, the ..summons on which the attachment was endorsed was made returnable to the first Monday in March, after the date thereof. The attachment was levied, as appeal’s by the return of the Sheriff, on all the right, title and interest of the Rathbone Oil Tract Company, in and to the tract of land situated on the Little Kanawha river, Burning Spring Run &c., in Wirt county, and all the partnership property,in said county .formerly owned by Rathbone and
The first error assigned and relied upon before us is “that the court below erred in decreeing the sale of the lands attached, because the bill shows that the trustees, holding the legal title to the lands on which the attachment was levied, were not made parties to the suit.” The bill does show on its face that the lands on which the attachment was levied were conveyed by William P. Stratton to Wm. Whiteright, and J. P. Girard Foster, trustees for said Company. The bill professes
“The second error assigned is that “the court erred in not quashing the attachment and dismissing the proceedings thereon/’ No reason was stated in argument in support of this error and in fact it was abandoned in argument by the appellant’s counsel. No reason having been given why this assignment of error should be sustained, and being unable to see any, this assignment of error must be overruled.
The third error assigned is that “it was error to refuse the filing of the cross bill. No relief could be given upon appellant’s answer. !ATter the answer was filed and proofs taken, Baker, the appellee, removed from the State and became a non-resident insolvent. The Company’s said cross bill sets up, substantially, the same matters against complainant, as are relied on in the answer of the Company in its defense, chief and most important of which is, that the oil tanks were warranted to be of first class quality, as to material of which they were constructed, whereas, in fact, they were made of inferior 1 amber, and were not of first class, as agreed to be constructed, &e. Benjamin on Sales, 680, says: “Where the goods delivered to the buyer are of inferior quality to that which ivas warranted by the vendor, the buyer has three remedies: First. He may refuse to accept the goods, and return them, except in the case of a specific chattel in which the property has passed to him, as explained in the preceding chapter. Second. He may accept the goods and bring a cross action for the breach of the warranty. Third. If he has not paid the price, he may plead the breach of warranty in reduction of the damages in the action brought by the vendor for the price.” If this had been an action of assumpsit to recover the price of the oil tanks the Company would be entitled, on a proper issue being made, to have deducted or abated from the actual price, so much as it proved itself entitled
The complainant’s demand in the case before us is a legal, and not an equitable demand, and this suit is a proceeding-in equity to enforce the legal demand by foreign attach-ent, based upon a statute, and the defendant is, and should be, entitled to make at least such defences against the plaintiff s demand, in whole or in part, as he would be entitled if the case were an action at law, leaving out of view equitable defences. On the examination of the Company’s answer, I feel satisfied that if the Company had succeeded in establishing the warranty, and breach thereof, stated and set up in the answer, it would be entitled to a de-
The fourth assignment- of error is, that “it was error to decree for the appellee, upon the pleadings and proofs in the cause.” On a careful examination of the evidence disclosed by the record, I am of opinion that the court below did not err in rendering a personal decree against the said Company, (as the Company had appeared and filed its answer in the cause,) for the amount stated in the decree, together with the costs of the suit. While the evidence adduced by complainant and defendant is somewhat conflicting, the weight of the evidence is in favor of the complainant’s claim against the Company, as to amount, as ascertained and adjudicated by the court below, in its decree rendered in the cause on the 27th day of November, 1871. The fourth assignment of error must, therefore, be overruled.
The fifth assignment of error is that “the mechanic’s lien of P. D. Bees was a proper set off, and should have been allowed.” As to this assignment, it is sufficient to say that the record fails to disclose proof of any such mechanic’s lien.
The sixth assignment of error is that it was error to decree the sale of the land for cash, and not to require the special commissioner to give bond with security, conditioned according to law, before making the sale. Under the statute, as it was at the date of the decree of sale, it was certainly not error to direct the sale of the land to be made for cash. But as the sale was directed to be made for cash, both of the real and personal property levied on, I think the court ought to have required the commissioner to give bond, with good personal security, in a penalty fixed by
The appellee, by his counsel, has asked us if we were of opinion that the personal decree rendered against the said Company was authorized by the evidence to strike out so much of the decree as directs the sale of the property and appoints a special commissioner, &c., and leave the personal decree against the Company for the money and costs of suit, standing in full force against the Company. The decree in this cause is, on its face, very similar in form, to the decree in the case of Woodson, Trustee, v. Perkins, 5 Gratt., 345. In that case there was a personal decree against the plaintiff for a sum of money, followed, as in this case, with a provision that unless the money was paid within a specified period, that certain slaves should be sold, &c., and directed to whom the proceeds of sale should be paid. But the court said it was an interlocutory decree, and that no execution could issue on the decree, for the money decreed, without leave of the court. And that, as there was no ground for a personal decree against the plaintiff, who was a mere trustee, it would have been competent for the court at any time before final decree, so to have modified the decree as to have relieved the trustee from any supposed personal liability growing out of the general terms of the interlocutory decree. The case of Muller v. Bailey, 21 Gratt., 521, was also cited by appellee. But I do not think these cases sustain the appellee’s position in this case. The views of the judges in these cases are predicated upon the idea"
The attachment, I think, is a lien on the oil tanks upon which it was levied, if they are not so attached to the land as in legal contemplation to be a part thereof. That the tanks are a part of the realty, there is nothing in the record to show. The bill, in effect, alleges that the oil tanks are personal property and the answer does not contest the facts, and there is no evidence in the record upon the subject. The sheriff’s return says that that the
The following is the decree entered in this suit here:
And this court proceeding to render such decree as the court below should have rendered .• Itis adjudged, ordered and decreed that the complainant, J. W. Baker, recover against the defendant Bathbone Oil Tract Company the sum of $1,842.05, with interest thereon from the 16th day Februaiy, 1867, subject to a credit, of $1,000, paid on said 16th day of February, 1867, and the further sum of $150, paid February, 8,1867, and that the complainant also recover from defendant Bathbone Oil Company his costs about the prosecution of this suit in said circuit court expended, and leave is given the complainant to sue out execution thereon, if he so desires. And this cause is remanded to the said circuit court of Wirt •county, with directions to said court to proceed to direct so much of the personal property levied on, as may be necessary, to be sold, if the the complainant’s debt and costs are not paid or otherwise made, within some reasonable time, to be fixed by the court, if asked by the complainant ; and with further directions, if it should become necessary to resort to a sale of any part of the land on which the attachment in the cause was levied, not to proceed to make a decree to sell any part of the land to pay said debt, interest and costs, or any part thereof, until
Decree Reversed.