39 W. Va. 448 | W. Va. | 1894
In 1890 W. G. Bansimer brought a chancery suit in the Greenbrier Circuit Court against John P. Fell, as sole defendant, to assert the lien of a judgment in favor of Ban-simer against Pell upon a tract of three hundred and fifty acres of land, called the “Creigh Tract,” owned by Pell. The suit was in behalf of Bansimer himself and all other holders of liens against Pell’s land; and under a reference to a commissioner to ascertain such liens a report was made finding certain liens as existing on said tract, which report was confirmed. The liens reported were decreed against the land, and it was sold and purchased by A. P. Mathews. One of the judgments reported against the land was a judgment in favor of Whitehill against Pell, which had been assigned to Mathews. The land of Pell did not bring enough to fully satisfy the Whitehill judgment, and then an amended bill was filed to enforce it and other liens unpaid agaiust other lands, which Pell had once owned, but had sold and_ conveyed ; one being the undivided moiety of a tract of seven hundred acres, called
“After said Bell shall have satisfied all of said judgments, viz. by said A. S. Skaggs entering satisfaction of a certain debt, now amounting to one thousand nine hundred and fifty dollars, due from said Bell to said Skaggs, and secured by trust deed upon what is known as the ‘Creigh Property,’ near the town of Brankford, and by paying to said Bell fifty dollars in money, with interest thereon from this date. But it is expressly provided that no part of said two thous- and dollars shall be paid as aforesaid, nor shall the same be considered as due, until the whole of the judgments on the land first above mentioned shall have been satisfied by said Bell as aforesaid.”
One of these cases was heretofore before this Court. Bansimer v. Fell, 35 W. Va. 15 (12 S. E. Rep. 1078). The court then held that the debt under said deed of trust in favor of Skaggs against the Creighs was not barred or precluded by the convention of lienors and. the decree subjecting to sale the three hundred and*fifty-acre Creigh tract as the property of Fell. The reasons given for such holding will be found in the report above cited. They need not be repeated. I will add, however, as to one of these reasons — that is, that neither the trustee nor the creditor in said deed of trust were parties when that convention and decree took place — that subsequent decisions of this Court have held, that notwithstanding the amendments made by chapter 126, Acts 1882, in section 7, c. 139, of the Code in relation to the convention of lien holders, to afl'ect a credi-.
In McMillan v. Hickman, 35 W. Va. 705 (14 S. E. Rep. 227) it was held that in a suit to subject a debtor’s land to a judgment, lien creditors known to the plaintiff, and disclosed by the judgment lion docket <>r records of the court of the county in which the land lies, must be made parties, and that, where there are liens by trust deeds the trustees must be made formal parties, and can not be made informal parties by publication. See also, Turk v. Skiles, 38 W. Va. 404 (18 S. E. Rep. 561). A_nd at this term it was held, in Bank v. Watson (19 S. E. Rep. 413) — a case where there was a convention of lienholders — that the trustees and beneficiaries must be formal parties. The position that any judicial action can have effect to prejudice persons or rights in no way present, when their presence is necessary, is untenable.
The letter of section 7, c. 139, requires the trustee and creditor to be made parties. In the brief of appellant’s counsel it is contended, that this requirement, that the trustee should be a party, is satisfied in the fact that Fell is trustee in the Creigh deed of trust securing Skaggs, and he was sole defendant in the original bill and thus was a party; and, it is asked, what more could have been done ? The answer is, that Fell could have been made a party in his right as trustee, and the rights under the deed of trust could have been set up in the bill, and the creditor under the trust could have been made a party. This thing could and should have been done. Fell was the sole defendant, not as trustee, but only in his own right, as debtor under judgments assei’ted against his land. He was not mentioned as trustee. The deed of trust was not mentioned. The creditor under it, and whether or not he had been satisfied, were not mentioned. As the cases hold that they are necessary formal parties, I am unable to see how a proceeding or decree can be a bar against a man and his right, when he is not a party to the bill, nor his right mentioned therein, and the law is that, to constitute a bar, both the man must be a party, and his right must be alleged in the
The former decision adjudicated a second matter and is res judicata as to it; that is, that said deed of trust was valid. Therefore, the inevitable sequence is that it constitutes a lien on the land conveyed in it for the debt secured by it to Skaggs.
It is suggested — but, seemingly, not urged — that in the sale of the Sinking Creek land by Fell to Skaggs Fell assumed payment to Skaggs of the deed of trust (Creigh) debt, and Skaggs recognized this assumpsit and spoke in the contract of the debt as one due from Fell and looked no longer to the Creighs, and Fell thus made it a lien on his own land, and it was a charge on the Fell land sold under the decree.
First, in the sale by Fell to Skaggs of the Sinking Creek land Fell did not assume the Creigh debt. He had before that assumed it in the contract between the Creighs and himself, selling to him the Creigh land ; and he made sale of the Sinking Creek land to Skaggs to discharge his obligation, leaving in Skaggs’s hands one thousand nine hundred and fifty dollars of the purchase-money to accomplish it. But, if we turn back to the agreement given above, we shall see that it made no lien on the land of Fell, and that Fell was to pay off judgments binding the Sinking Creek land before the one thousand nine hundred and fifty dollars'left in Skaggs’s hands should be applied to the Creigh debt, and that the one thousand nine hundred and fifty dollars should never be considered as even due from Skaggs or paid on the Creigh debt, until the satisfaction by Fell of judgments endangering the Sinking Creek land in Skaggs’s hands, and that the writing expressly referred to the debt as secured — still secured — by the deed of trust. Fair eon-
Here I will pass upon the demurrer of Mathews to the bill of Skaggs, which demurrer was overruled. The contention of Mathews is, that this bill was filed prematurely, as, when it was filed, the moiety in the Sinking Creek tract had not been held liable or sold for any judgment-liens existing against it as the property of Fell, and that after the agreement of September 27, 1878, between Fell aucl Skaggs, the latter “had no right to look to the Creigh laud or his trust deed for any purpose except for indemnity for actual loss then already sustained of some part of the one thousand nine hundred and fifty dollars of purchase-money retained by him, or of the land bought by him from Fell, and taken from him for the payment of debts of Fell which were liens thereon.” In other words, that before suing Skaggs must wait until his land had been sold away from him for liens against Fell, or at least until it had been subjected thereto, and Skaggs had discharged them out of the fund in his hands. It is sought to liken the
Under his covenant of general warranty Fell was bound to remove liens. A fund was left by him in Skaggs’s hands, with which to remove liens if Fell did not. He had a right to apply purchase-money yet in his hands to remove liens, both without special contract, under the law, as manifested in every day’s practice, and under special agreement. He had waited in vain for Fell to remove the lions from September 27, 1878, till August, 1891, and Fell was insolvent. There was the amended bill in the Bansimer Case, filed for the purpose of selling Skaggs’sland sold him by Fell for those liens, under which it once had been subjected, and the decree subjecting it had been reversed, and the case sent back, with an actual adjudication by this Court that the land was liable for Mathews’ lien, and for further hearing after bringing in new parties, and there was every reason to suppose that the laud would be subjected. Mathews owned a debt binding Skaggs’s Sinking Creek land.
The decree rendered in the case is, in truth, nothing but the legal result and enforcement of the decision heretofore rendered by this Court on the same facts, and the same is affirmed.