24 W. Va. 287 | W. Va. | 1884
In March, 1876, the -plaintiffs filed their bill in the county
The lease as well as the said assignment thereof were both promptly recorded. Upon petition, the lessees in the original lease were made parties defendant to the suit and demurred to the bill for want of equity. As there is no provision in said lease, that it should not be assigned nor the premises sub-let without the consent of the lessors, it does not appear in the record, why said lessors were made defendants to the bill; no error to the making of the lessors defendants is assigned. Brewer Smith and the Semi-Cannel Coal Company also demurred to the bill.
From this decree the plaintiffs, W. and T. Cole, appealed to this Court.
The question here presented is: Where a lease is sold and transferred, and in the same transfer or conveyance personal propei’ty on the lease is sold, and a vendor’s lien is reserved on the face of the assignment for the payment of the purchase-money, as between the parties and those having notice thereof, is the vendor’s lien valid, and can it be enforced in a court of equity ? The agreement, as it is called, made between the plaintiffs and the defendant, Brewer Smith, first “assigned, transferred and, set over” the lease, describing it. Then this clause follows: “And the said parties of the first part further grant, bargain, sell and convey to said party of the second part all the improvements they have put upon the property aforesaid, and all thq personal property they -own in and upon or about said property, and which they have procured for the purposes of operating the same under the lease aforesaid; in consideration of all of which, the said party of the second part agrees to pay the said parties of the first part the actual cost of said improvements and personal property amounting to four thousand six hundred dollars, * * and the said party of the second part also assumes and agrees to pay in addition to the sum above named certain debts and liabilities incurred by said parties of the first part in making the improvments and purchasing the personal property aforesaid, set out and specified in the schedule hereto annexed, amounting in the aggregate to $-; and the said parties of the first part agree to give immediate possession of the premises to the said party of the second part, and the said party of the second part hereby assumes all the liabilities and obligations of the lessees to the lessors in the lease aforesaid; and the said parties of the first part. hereby retain a lien upon the lease, property, 8pc., herein sold and transferred, to secure the payment of the purchase-money aforesaid, and the debts and liabilities assumed as aforesaid.”
Here the lease, the interest in the real estate and the mere personal property were sold together for a gross sum; and it is impossible to distinguish the purchase-money of the one from that of the other. In McCandlish v. Keene, 13 Gratt. 629, Judge Lee said: “I am aware of no case, in which such alien has been declared on a sale of both real and personal property for a gross sum. * * * The great inconvenience and embarrassment that would follow, if a
The court by Tucker, President, said: “It is objected, that uo specific execution of a sale of personal property can be enforced;.and that no lien on the personal property for the purchase-money exists, especially when money has been paid by the purchaser, the possession delivered to him and he is solvent. As to the first, the contract being for-the sale of the real estate alone, and as there is clearly jurisdiction as to that it must carry with it jurisdiction as to the personalty also.” He further said : “Under the second contract the retention of the title is plain. Curtis agreed to execute a deed for the property to Clarke whenever ‘he should make the payments they should agree on.’ He was not then to have the property till he paid the money. A lien therefore clearly existed.” Brooke, Cabéll and Allen J. J. concurred. Judge Stanard dissented as to the opinion, that any lien existed on the personal property. He said in his dissenting opinion, page 581: “The opinion I have expressed places the right of the vendor to relief in equity on a foundation, of which his retention of a lien on the personal property for the purchase-money forms no part. I am strongly inclined to think no such lien remained ; that the delivering of the personal property and the execution of the bonds by the purchaser under the first contract passed the full property, in that part of the subject to them, without any further act, and no lien upon it for the purchase-money existed after the title in, and possession of it had passed to the purchaser. The new contract made no change in this respect. It only converted the joint-title in, and possession of the personalty before held by Clarke in common with the other original joint-purchasers, into the sole title and possession of Clarke, and the joint responsibility of the original joint-purchasers into a sole responsibility of him alone. But upon this point my brethren hold a different opinion, and I readily acquiesce.”
The foundation on which Judge Stanard declared, that the relief in equity in that cause existed was, that there v?as no adequate relief at lawn He said: “Had the purchaser brought his suit for specific performance, there could not have been a
As the authorities on this question are few, and judges Lee and Stanard, both having in a case like this thought that there could be no vendor’s lien as to personal property, we shall be careful upt to go farther than authorized by the case in 11 Leigh 559. It seems to us, that where a lease is sold with all the personal property thereon for a gross sum for both, and in the writing transferring the lease and the personal property a lien is reserved for the payment of the purchase-money, and a suit is brought by the vendor to subject the property to sale for the payment thereof, as between the parties to the'contract of sale and those having actual notice of it the lien will in a court of equity be declared to be valid and will be enforced by a sale of both real and personal property for the purchase-money of both. There certainly can be no harm resulting to the public from a sale of this kind, as the rights of creditors and innocent purchasers do not intervene. "We are not disposed in this case to consider whether or not the writing could be regarded as to the lease and the mere personal property as an equitable mortgage, and whether or not it might under section 5 of chapter 74 of the Code be regarded as duly recorded and as giving notice thereof to anybody. That question does not arise here and will not be considered. The bill shows on its face, and the demurrer admits that the Kanawha Semi-Oaunel Coal Company had actual notice of the writing and of the lien retaiued thereon, and undertook to. carry out its provisions.
Reversed. Remanded.