19 W. Va. 135 | W. Va. | 1881
announced the opinion of the Court:
The first error assigned is, that the decree of the 13th of November, 1876, is erroneous, because, as is claimed, the answer of A. F. Mathews and the exhibits filed therewith show the origin and history of the debt decreed to him and show, that Andrew Beard was sheriff of Greenbrier county, and as such sheriff had in his hands several executions against the defendant Arbuckle, that he voluntarily paid them off as sheriff, and having thus discharged them he treated the judgments, on which they issued, as his own and assigned them to James H. Renick and S. L. Beard, and they assigned them to Mathews. The appellant’s counsel further insists, that these judgments having been voluntarily paid off by Beard as sheriff were discharged and satisfied and no longer had any legal existence. That neither the executions nor the judgments, on which they were issued, nor the original evidences of debt, on which the judgments were obtained, were ever assigned to said Beard.
The appellant Arbuckle did not answer the bill, and never until now has he denied, that Mathews was entitled to all, that is due upon said judgments. It does not appear in the record, whether the original creditors assigned the said judgments or claims to Beard the sheriff or not. If that matter had been put in issue, Mathews might have been able to show, that such was the fact. None of the creditors raised the ques
In Neely v. Jones, 16 W. Va. 628, this subject was carefully considered. It was there held, that a stranger, who pays a debt without request or anthority of the debtor, when the payment is not afterwards ratified, may, if he chooses, bring a suit in equity stating this fact and praying, that if the payment be not ratified by the debtor, the debt may be enforced in his favor as the equitable owner thereof, or, if the payment be ratified by the debtor, that the court will decree to the stranger the repayment of the amount so advanced by him for the use of the debtor, and the court will give the one relief or the other. The stranger, when he pays the amount of the debt to the creditor, may without the consent of the debtor take an assignment of the debt and enforce it against the debtor; and if, when he pays the amount, it is agreed between the creditor and himself, that the creditor will assign him the debt, though no actual assignment be made, the stranger will be regarded as the equitable assignee of the debt, and the transaction will be considered equivalent to the purchase of the debt. If a sheriff, who has had or has an execution in his hands, pays the debt to the creditor, whether he takes an assignment of the j udgment or not, he will have the same rights and remedies against the debtor, that a mere stranger would have. But the qucere was propounded in that case: “Does not public policy forbid, that such sheriff should have the same rights and remedies as against subsequent judgment-creditors, who have acquired liens on the debtor’s lands, or against a purchaser of such lands for valuable consideration without notice, that the sheriff set up such claim V’ The quaire must still remain unanswered, because, although there are subsequent creditors here, none of them-complain of the decree. Arbuckle being liable to pay the
It is also assigned as error in said decree, that it was entered requiring the lands to be sold, before the amounts and priorities of the liens thereon were ascertained. We are sorry to have to consider ¡this question, as it has been so often before this Court. But we must again hold, that it is error for a court of chancery to decree a sale of land to discharge liens thereon until the amounts and priorities of the liens are definitely fixed. At the time the decree, which we are considering, was rendered, the amounts of two liens, to wit, one of Miller and one of Skaags, were not ascertained, and the priority of the Skaags lien was not fixed. There was an effort made in the decree to cure the defect of the Miller lien by his consent-in the decree, that the land, on which he had a lien, might be sold before the amount of his lien was ascertained. But this did not cure the defect; the debtor, as well as the other creditors, were interested in having the amounts of all the liens and their priorities ascertained and fixed, before a sale was ordered. This not being done, it was error to decree the sale at that time. It was error also to leave the amounts of the liens in uncertainty before the sale by re-committing the report to the commissioner with leave to the debtor within sixty days to reduce the amounts of any of the liens by proving payments. Scott v. Luddington, 14 W. Va. 387. If there was any good reason for recommitting the report to the commissioner with leave to the debtor to prove further payments, if he could, it should have been done, before the sale was ordered, and the sale should not. have been ordered, until the report was returned, and the amounts as well as the priorities of the liens definitely ascertained and fixed.
It is further insisted, that it was error in said decree, to direct, “that the ‘ Creigh5 or ‘Home Place5 should be sold for one third cash in hand, and the cash-payment to be paid over to Mrs. Caroline Bloomer without waiting for a confirmation of the sale. It is generally improper to direct the distribution of the proceeds of a sale, before the sale is confirmed, but this irregularity in this cause is not to the prejudice of the appellant. Irregularities in a decree, which do not injure the appellant, are not sufficient grounds for reversing it on his
It is alleged, that there is error in the decree of February 7th, 1877, because upon the petition of Arbuckle the court refused to extend the time, within which petitioner might take his proof of payments. He had six months, before the decree of November 13th, 1876, was entered, within which to prove his payments; and it does not appear in the cause, that before the commissioner he asked for further time, and the granting of the further time from the facts in the record was a mere gratuity and indulgence to Arbuckle, to which he did not show himself entitled.
It is also assigned as error in said last named decree, that the court did not on said petition set aside and cancel exhibit 7. The petitioner does not show any grounds for cancelling said exhibit. What the petitioner alleges as fraud in the procurement of said paper does not amount to fraud. He had the opportunity to see and know, that the calculation of interest was correct or otherwise, as well as Mathews; and there was no such relation existing between them as to this transaction, as should have thrown the said petitioner offhis guard. It was the debtor dealing with his creditor, and not a client dealing with his attorney. The court did not err in refusing to permit said petition to be filed.
It is also assigned as error in the decree of May 26, 1877, that it confirms the sale made to Mrs. Caroline Bloomer of the Creigh or “home place.” The defendant, Arbuckle, took no steps whatever to have the decree, under which said sale was made, reviewed and set aside before the confirmation of the sale to Mrs. Bloomer. Under such circumstances the sale must stand, although the decree, under which it was made, may be reversed. Charleston Lumber Co. v. Brockmyer et al., 18 W. Va, 586.
There is no objection to the said decree of February 7, 1877, which can avail here; and it must be affirmed.
It is assigned as error in the decree of June 25, 1877, that it directs a re-sale of the lands without having the amounts of
For the same reasons we must reverse the said decrees of November 13, 1876, and June 25, 1877. The judge in vacation on the 22d of October, 1878, erred in overruling the motion of plaintiff to correct said decrees in the said párticulars.
For the foregoing reasons the decrees rendered in this cause bn the 7th day of February, 1877, and the 26th day of May, 1877, respectively are affirmed; but the decrees rendered in this cause on the 13th day of November, 1876, and on the 25th day of June, 1877, respectively are reversed with costs to the appellants against all the appellees except Caroline Bloomer; and this cause is remanded to the circuit court of Greenbrier county with instructions to proceed therein according to the principles of this opinion and according to equity.
Two op the Decrees Appirmed asd Two Reversed.
Cause Remanded.
