9 W. Va. 680 | W. Va. | 1876
Luther Haymond, trustee, filed his bill in the circuit-court of Harrison county, at February rules, 1868, against Richard Snowden Andrews, and Gideon D. Camden, as non-residents, and William E. Lovett and Lott Bowen,, as home defendants. The bill alleges that Luther Hay-mond, trustee, on July 15, 1859, sold to Richard Snow-den Andrews, then and still a non-resident oí the S’ate, a tract of eight hundred and nineteen acres of land in Harrison county, at the price of $15,151.50, of which $1,732.7'-), was to be paid in -cash, $1,099.70 on April 3, 18(50, three several sums of $670.70, on the third days of April, .1861, .862 and 1863, respectively, and the balance $10,307, on April 3, .864,; that all these deferred payments bare interest, which interest was to be paid annually; that Andrews paid the cash payment, and executed his notes for all the deferred payments, with Camden as his surety; that, thereupon, a deed for the land was executed to Andrews, reserving the vendors lien for the unpaid purchase money, and a copy of the deed is filed with the bill. The bill further alleges that Andrews paid the first instalment, and the interest on all of them to April 3, $1416., but had wholly failed to pay any further amount. The bill claims that this unpaid purchase money was a lien on the land, and that it should be sold to pay the same. It further stated that Andrews and Camden were both by the laws of the land, non-residents of the State; that they had estates and effects in this State liable to attachment; that Camden owns a house and lot in Clarksburg, and a tract of land near Clarksburg, and perhaps other estate; and that Andrews, besides this eight hundred and nineteen acres of land, had some personal property or effects in
The bill was sw'orn to, and an order in vacation was. thereupon made, directing a special commissioner to rent out Andrew’s land. An order of publication against Andrews and Camden, was duly made and executed, in which it is recited, that it appeared, by affidavit, that they were non-residents of this State; the affidavit referred to. is not, however, copied in the record.
Lovett filed his answer, stating that he had nothing in his hands, except a lease ot a part of Andrew’s land to. Bowen, on which he owed $300, but a portion of which was subject to a previous attachment in the county court of Harrison, issued by Henderson and Paydon, against Andrews and others. The commissioner to rent,-reported that he had rented Andrew’s farm for $750 for one year to April 1, 3 864, payable January 1, 1864. This report was confirmed, and he was ordered to collect the rent when it should become due. On December 12, 1863, after reciting that order of publication had been returned duly executed against -the absent defendants, Andrew's and'Camden, and decree nisi as to them, and that process had been duly'executed on Bowen, wTho failing to answer, the bill was taken for confessed as to him,
The commissioners of sale reported that on March 12, 1864,. they sold this tract of land of eight hundred and nineteen acres, at public auction, in the manner prescribed by the decree, and that James Lynch -was the purchaser at the price of $12,110, and that he had complied with the terms of sale.
On June 14, 1864, the court ordered the taxes on said land for 1863, amounting to $44.23, to be j>aid by the commissioners out of the proceeds of the sale, and on March 18, 1867, the court, reciting that Bowen had paid plaintiffs counsel $375.60, the amount of his indebtedness, it was ordered to be applied, first to the discharge of the decree in favor of Henderson and Paydon against Andrews and others, which suit was then dismissed, and the residue to L. Hayrpond, on his decree, and the suit was then dismissed as to Bowen.
On June 4, 1870, Camden, by leave of the court, filed his answer, in which he states, that shortly after April 1,1861, he was in the town of Beverly, Virginia, attending to business, and, while there, hostilities began in that region between the United States and the Confederate States. That, on August 16, 1861, the President, of the United States, pursuant to an act of Congress of July 13, 1861, issued a proclamation, declaring certain States, and parts of States, to be in insurrection against the United States, and prohibiting all intercourse between the inhabitants of the United States and these insurrectionary districts; that the ’part of the State of Virginia of which he (Camden), was then an inhabitant was a portion of the territory thus declared to be in insurrection, and that therefore no interest could be properly charged against him, in favor of the plaintiff, during the continuance of this state of things, which lasted till the war closed, and that it was still more improper to have charged him compound interest, as had been
Certain depositions were taken by Camden, and filed in the cause intended to sustain his answer, but they are not referred to in the decree as any portion of the papers
The appellee, by his counsel, insists, that it is now too late for the appellant to appeal from the decree of December 12, 1863, it being, as he claims, a final decree.
Whether this decree can now be reviewed by this Court, depends upon whether it was final or interlocutory. Judge Baldwin in Cocke’s, Admr. v. Gilpin, 1 Rob. R. page 27 and 28, says, “ that the proper criterion tor determining whether a decree is interlocutory or final, ig where the further action of the court.m the cause is necessary to give, completely, the relief contemplated by the court, then the decree upon which the question arises is to be regarded, not as final, but interlocutory. I say the further action of the court in the cause to distinguish it from that action of the court, which is common to both finaTand interlocutory decrees, to-wit, those measures which are necessary for the execution of a decree that has been pronounced, and which are properly to be regarded as adopted not in, but beyond, the cause, and as founded on the decree itself, or mandate of the court, without respect to the relief to which the party was previously entitled upon the merits of his case.” This criterion seems to me to be the proper one ; and applying it to the decrees of December 12, 1863, and of March 26, 1864, neither of them were final, either as to Andrews or Camden. By the bill he claims, to be due from them, and to become due afterwards from them, $15,151.50, but he recovers only by these decrees, $3,504.52 with interest and costs. A large portion of the debt claimed by the bill, that is $10,307, was due in a few months after the decree ivas rendered, and the court rendered no decree therefor, but it is obvious that the court contemplated rendering a decree therefor against the defendants Andrews and Camden, at a future period, when it had become due. The decree of December 12, 1863, on its face, shows that the court contemplated this further
The errors alleged in the decree of December 12, 1863, are :
First, The computing of interest upon interest in ascertaining the balance due from Andrews;
Secondly, In not crediting him with the proceeds of the rent of the farm on the lease made by a commissioner of the court;
Thirdly, in not collecting and applying the money due from Bowen before such decree was rendered ;
Fourthly, in charging Andrews and Camden with interest during the war, they being, as alleged, inhabitants then of a country at war with the country of which the plaintiff was an inhabitant;
And, lastly, that the court had no right in 1863 to render any decree against Andrews and Camden, or against their real estate, because they were not before the court, the order of publication against them being a mere idle form, as neither of them could then have come to Harrison county to defend the suit, or could have known of the pendency of the suit, all intercourse between them and said county of Harrison, being then illegal, they being then residents of a section of country at war with the residents of Harrison county.
If the three first of these be errors, they are of such a character, that this Court, if they had not been corrected, would have done no more then to direct that the credits
The last two errors in the decree of December 12, 1863^ alleged have no foundation in fact, so far as the record shows. They are both based on the supposition, that there was proof in the cause establishing that the plaintiff, and the defendants, Andrews and Camden, resided, when this suit was brought, in hostile counties. But there is no such proof in this cause, which this court can consider. It is true, this is alleged in Camden’s answer, but this answer was replied to generally, and there is no proof which this Court man consider, of the truth of these allegations. There are appended to the record several depositions, designed to sustain these allegations in the answer of Camden ; but the recitals in -the decree of January 24,1874, of what the cause was heard upon, shows that it was not heard on these depositions. Why it was not heard on these, depositions also does not appear, but, in the absence of any objection to their exclusion being made in the circuit court, this Court cannot regard their exclusion as any error. And not having been read in the court below, they cannot be read or considered in this Court. Shumate v. Dunbar, 6 Munf. 431. If the evidence, which this Court could consider, had shown that
There is no error in the decree of June 4, 1864, directing $44.23, the taxes for the year 1863, to be paid out of the proceeds of the sale, of which appellant can complain. They were liens on the lands of Andrews, superior to the plaintiff ?s lien; these taxes accrued while the land was being rented out under an order of the court, and they should have been paid out of the renté of the land when collected under the order of the court; the defendants, therefore, vrere not injured by the order •directing'its payment out of the sale of the land, as the
The order made June 4, 1870, directing the payment of a debt due Henderson & Paydon on an attachment against Andrews and others out of the funds in Bowen’s hands, is complained of by the appellant. It is insisted that this suit of Henderson & Paydon had been dismissed previously, and, therefore, no portion of the funds in this cause could have been properly applied to pay the claim of the plaintiffs in that cause. As I understand the record, this suit had not been previously dismissed, but was then pending in the circuit court; it had been brought in the county court of Harrison and on the abolition of that court, was transferred by law to the circuit court; and, being in the circuit court, it ordered that the plaintiffs, in that suit should be paid the whole of their claim out of the funds in Bowen’s hands, and, by the same order, dismissed that cause as ended. We must assume that this order was correct.
Lov-ett, in his answer, states that the funds in Bowen’s hands were liable first to this attachment of Henderson and Paydon. The circuit court had the records of both causes before it, and we must assume, properly, gave priority to the claim of Henderson and Paydon, as the contrary has not been made to appear, by bringing before the Appellate Court, a copy of the record in the cause of Henderson & Paydon v. Andrews, &c.
It is insisted that the circuit court erred in not treating Camden’s answer as a petition to rehear, and in refusing to permit .him to file his formal petition for a rehearing of the decree of December 12, 1863. This petition was offered January 24, 1874, and was rejected by the circuit court, because, in its view, it was presented too late. That court considered that the time, during which the war was pending, and the time, during which the suitors test oath was required to bo taken, ought not to be added to the time in which the statute requires
But it assigned as an error in the decree of January-24, 1874, that the court did not dispose of the personal estate of Camden, which had been attached before ordering-his real estate attached to be sold. The twentieth section of chapter 106, of Code of West Virginia, expressly provides, that no real estate which has been attached shall be sold under an order of the court, until-all other property and money levied on has been exhausted. In this cause, personal property of Camden had been attached and levied upon; this property was “a negro man, a piano forte, his household and kitchen furniture, and his law library.” It is suggested that this property was never taken possession of by the sheriff, and never was under the control of the court. But the record shows the reverse. It was levied on,, and the court by its decree of December 12, 1863, expressly declared that the plaintiffs had a valid lien on this property for the satisfaction of their claim. Th.e plaintiff’s lien has never been released. And the personal property under the control of the court must be sold, before the real estate attached can be properly sold. We know that, as one of the results of the war, the negro man is no longer subject to sale, and is no longer under the control of the court It may be, too, that a portion of the other personal property attached, or possibly the whole of it, may have been destroyed during the war, but this does not appear to be the case by the record,, ¡now presented.
To avoid misapprehension, we desire it understood that if it shall hereafter appear, that, in point of fact, the circuit court of Harrison had n,o jurisdiction of this-cause, when it rendered its decree ordering a sale of the land of Andrews, and, therefore, no right to render such decree, that neither the decree of the court in this cause,, nor anything in this opinion should be regarded as upholding the decree of December 6, 1863 ordering this sale, or the decree of March 26, 1864 confirming the-same, as against Andrews. This Court, by no decree it could render, can preclude Andrews from showing, even in a collateral controversy, that this land was sold by the court when it had no jurisdiction to make such sale, and-if this be so, that such sale is a nullity. All we mean to say is that this record does not show such want of jurisdiction on the part of the circuit court of Harrison.
The decree of the circuit court of Harrison of date January 24, 1.874, must be reversed and the appellant recover of the appellee his costs- about this appeal ex-, pended. And the cause must be remanded to the circuit court of Harrison, with instructions to proceed with the same upon the principles- set forth in this opinion, and! according to the rules of justice and equity.
Decuee Reversed.