13 W. Va. 732 | W. Va. | 1878
delivered the opinion of the Court:
The plaintiff filed her bill, in the circuit court of the county oí Greenbrier, against Matthew Arbuckle and others, to enforce a lien by judgment against said Arbuckle’s realty, to which he claims to be entitled as assignee. The bill, after setting out the judgment and her claim to part of the amount thereof by assignment, states and alleges, that there are various other judgments against defendant, Arbuckle, and that he had executed deeds of trust on his lands, in whole or in part. The bill states the names of the persons who obtained said judgments, and also the names of the trustees and eestuis que trust, in the said deed of trust. The bill further states, that “certain of said judgments are now for the benefit of James Knight, and certain others of them have been transferred, and assigned to, and are now for the benefit of, the said Alex. F. Mathews, but of this she knew nothing, and the said Knight and Mathews can answer their claims fully, if any they have ; and reference is here made to a list or abstract of said judgments, duly certified from said lien docket herewith filed, marked exhibit No. 4, and prayed to be taken and made as part of this bill.”
The bill alleges, that said Arbuckle is seized, and possessed in fee, of various tracts of land in said county, viz : the Creigh place, on which lie resides, the Ditson place, &c., and that all of said lands are bound by the lien of that portion of said judgment or undertaking assigned to her, and by the lien of such of the other judgments and deeds of trust as have not been paid off,
It appears, that afterwards. the Judge of said circuit court, in vacation, “upon motion of the plaintiff,” referred the cause to J. McWhorter, one of the commissioners of said court, to ascertain, state and report: First, all the lands owned by said Arbuckle; Second, an account of all the liens of every kind upon the real estate of said Arbuckle with tlioir dates, dignities, amounts, and priorities; Third, the order, in which such liens are encumbrances on each of the tracts of land; and Fourth, any other matter deemed pertinent” &c.
It also appears by an order of the said court, entered in the cause, that on May 28, 1877, Alex. F. Mathews, C. Aultman & Co., Robert P. Lake, W. R. Snyder, Jacob Huffnagle and James C. McPherson, guardian ad litem for E. A. Gregory, filed their separate answers to the plaintiff’s bill.
It further appears, that on the 14th day of June, 1876, the cause was recommitted to said commissioner, with instructions to hear such evidence, and take such further proof of debts, as should be adduced before him, and to re-open and restate his original report in accordance therewith, so far as necessary.
It also appears, that on the 13th day of November, 1876, the said circuit court made and entered a decree in the cause, in which it is recited : “ The subpoena having been returned, regularly executed upon all the defendants, and this cause having been set down for hearing, came on this the 13th day of November, 1876, to be
The decree then proceeds to ascertain and determine the several liens against the lands of said Arbuckle, the amounts thereof, and the persons entitled thereto respectively, and the priorities thereof. The decree then proceeds: “and the defendant,'James Miller, who claims to have a debt against said Arbuckle, as a lien upon a tract of land of eighty acres, which has not yet been ascertained and fixed, here entering by his attorneys his consent on the record, that said tract may be sold without waiting to have his said debt judicially ascertained and decided, it is therefore further adjudged, ordered and de
It is then further recited and stated in said decrees: “and upon motion of the defendant, M. Arbuckle and by counsel of the plaintiff, and other creditors, parties to the suit, the said second or supplemental report is recommitted to commissioner J. M. McWhorter, with leave to the defendant, M. Arbuckle, to establish, by sufficient and competent testimony, any credits, payments or offsets upon the debts, reported against him ’ as aforesaid, within sixty days from the date of this decree.” It is afterwards stated and provided in the same decree, and at the conclusion thereof, as follows, viz : “but this decree is without prejudice to the debt, due to A. S. Skaggs, which was overlooked by commissioner McWhorter, or which is due to Austin Handly, if it has been paid by him as security of said Matthew Arbuckle, as set out in the answer of Austin Handly, filed in this cause; and said commissioner McWhorter is directed to report to this court the amount still due on the judgment, rendered in favor of A. S. Skaggs, if anything, to whom due, and the priority of said debt, and what proportion thereof, if anything, has been paid by said Austin Handly as security for the said Matthew Arbuckle.”
It also appears, that afterwards on the 7th day of February, 1877, in vacation, the said Arbuckle present
It is proper to remark here, that said petition of Ar-buclcle contains no assignment of error of law or of fact in said decree of sale, nor does it aver or allege in any form, that he has discovered any new matter or evidence since the rendition of said decree of sale.
It farther appears, that on the 26th day of May, 1877, the cause again came on to be heard before the circuit court upon the papers formerly read, the petitions of M. Arbuckle and I). S. Bell, exhibits filed with said petitions, interlocutory order made therein in vacation since the last term of this Court, the report of commissioner J. M. McWhorter, made in pursuance of said order, to which report there is no exception, the report of sale made by Alex. Mathews and J. W. Harris, pursuant to the decree entered in this cause at the last term of this Court, No. 1, to which report there are no exceptions, and the arguments of counsel; and the Court confirmed said report of said commissioner J. M. McWhorter.
And the last named decree then recites and states, as follows: “and it appears from said report of sale, No. 1, that the said commissioners, Mathews and Harris, pursuant to said decree sold the tract of land of one hundred and forty-eight acres,'more or less, known as the Creigh place, or Arbuckle’s home-place, on the 14th day of March, 1877, at public auction; and that Caroline Bloomer, being the highest bidder for the same, became the purchaser thereof at the price of $8,800.00, of which she paid $347.62, her proportion of the costs of this suit, and all the expenses of said sale; ánd that she elected to pay, and did also pay, the balance of said sum being $8,452.38 in cash also ; it is therefore further adjudged, ordered and decreed, that the said report and sale be and they are hereby confirmed, and a writ of habere facias possessionem is hereby awarded the said purchaser to put her in possession of the said land.”
The report of commissioner McWhorter, in the last
It also appears, that afterwards, on the 16th day of June, 1877, this cause came on to be further heard upon the papers formerly read, &c. The order, made at the time last referred to, is not material to be further noticed here. But it also appeared that. on June 25, 1877? this cause came on again to be heard, before said circuit court, upon the papers formerly read, the report of sales No. 2, made by Alex. Mathews and John W. Harris, commissioners pursuant to the decree entered at October term, 1376, which is the said decree made on the 13th day of November, 1876, to which exceptions were taken and filed by the defendant M. Arbuckle, and the court sustained all the exceptions, and set aside all of the sales, mentioned jn said report of sales No. 2, and directed said commissioners to repay to the purchasers the cash payment, made by them, &c.
And the court in and by said last named decree further adjudged, ordered and decreed, that John "W. Harris, one of the comniissioners theretofore appointed in the cause, the other commissioner, Alex. F. Mathews, having declined to act longer as such, proceed, as soon as may bo, to re-sell the lands, in the bill and proceedings mentioned, upon the terms provided for and mentioned in former decree of sale, entered at October term, 1876 ; and Matthew Arbuckle was directed, as a special receiver of the court, to take possession of said land, directed to be re-sold, and take care of same; and lie was directed
The appeal and supersedeas, heretofore granted by this Court in this ease, were granted on the 20th day of November, 1877; and they were granted and allowed to and from the said decrees of the 13th of November, 1876, and the 7th of February, 1877. The super-sedeas, as granted, only extend to so much of said last named decrees ás appoints commissioners to sell the real estate, in said decrees and bill and proceedings mentioned, and to make report thereof.
Thus it is seen, that none of said decrees or orders, rendered in the cause after the 7th day of February, 1877, are before us for review, and affirmation or reversal. We have seen the character of the decrees, rendered after the said 7th day of February, 1877, among which is the said decree of the 26th day of May, 1877, which among other things confirms the last report of commissioner McWhorter, to which no exceptions were filed, and also confirms the report No. 1 of sale of one hundred and forty-eight acres of the land of said Arbuekle, made by said commissioner to Caroline Bloomer, and also the said decree of the 25th day of June, 1877, which is the last decree, appearing by the record to have been rendered in this cause.
■ This last named decree, as we have seen, sets aside the sale, made by said commissioners Mathews and Harris, of a number of tracts of land, in the bill and proceeding mentioned, which last named sales are mentioned in the report No. 2 of the said last named commissioners, which was returned to the Court, and directs John W. Harris, one of said commissioners, to re-sell said lands, &c.
Under this condition of the case it is manifest, that only a part of the case is now before us for determination; and that there ar.e other decrees, important in their character, which have, in some respects perhaps, an important bearing upon the said decrees to which the
The attention of counsel, practicing in this Court, is respectfully invited to this subject; and the observance of the precision and particularity in petitions, above referred to, is respectfully requested. It seems to me for the foregoing reasons, that, as the appeal and supersedeas in this case stand before us, we can not dispose of the whole case properly ; and before we proceed to review and determine upon the said decrees of the 13th of November, 1876, and the 7th of February, 1877, decrees other than those last named should be before us in connection with said last named decree.
Whether an appeal and supersedeas should, or would, now be granted, or not, in this case, after an examination of said decrees made in the cause after the 7th day of
Some question has been made in the case, as to whether the decree of the 13th of November, 1876, is as to appellant a decree on bill taken for confessed, and perhaps some subsequent decrees or orders, under the circumstances and facts appearing in the record and in the said decree of 13th of November, 1876, in whole or in part, under the true meaning and purpoit of the 5th and 6th sections of chapter 134 of the Code of 1868 of this State. It is not material, or perhaps proper, to decide this question now, as a full record of the case is not before us, and for other reasons. It does not appear by the record before us, that the appellant ever demurred or pleaded to, or answered the bill, filed in the cause; and the orders and decrees, made in the cause at rules, and the writ and notice thereon and questions do not appear in the record, except so far as the recitals in the decree of November 13, 1876, may refer to them or part of them. Without intending to intimate any opinion now upon the subject, and as the appellant may hereafter avoid in this case, if he chooses, any question or difficulty under said 5th and 6th sections of said chapter 134
For the foregoing reasons the appeal and supersedeas in this case must be dismissed, without costs, and without prejudice, &e., as hereinbefore indicated.
Appeal Dismissed.