18 W. Va. 370 | W. Va. | 1881
announced the opinion of the Court:
In March, 1875, A. N. Curry filed his bill in the circuit court of Putnam county against George W. Curry and others, in which he alleged, that in 1857 he executed a deed of trust on two tracts of land in said county of Putnam, to secure certain sums of money therein named; that in July, 1859, he executed another deed of trust, to secure another debt, on another tract of about thirty acres of land; that in March, 1859, he executed'a deed of trust on all said tracts of land, to secure George W. Curry $2,186.38, and Robert Curry the sum of $1,200.00; that the wife of complainant joined in the second deed, but not in the other two; that said George W, Curry has long since become the owner of the bonds and promissory notes secured in the two first deeds .set forth. He alleges in the bill, that he had made sundry payments on the debts so secured; that he had paid Robert Curry money, which he specifies, on the debt due. to him; that he understands, that all of the moneys paid to said Robert Curry have been credited on the notes except the last two payments amounting to $280.00, but that said George W. Curry refuses to allow any credit for the said last two payments; that Robert Curry is dead, intestate, and has no personal representative in this State, with whom the plaintiff could adjust the balance due
In October, 1875, the defendant, George W. Curry, answered the bill. The answer avers, that shortly after the execution pf the deed of trust, sale under which was enjoined, Robert Curry borrowed of him $282.00 and delivered to him the $1,200.00 bond secured in said trust-deed, which was an equitable assignment to him of that amount to secure him the payment of the sum so loaned. Respondent admits the payment as charged in the bill, and denies, that he has refused to allow such credits, and avers, that he has offered to allow said credits if the plaintiff would give him the date of the payments, which he failed and refused to do. Respondent insists, that the trustees were proceeding to sell, as the law required them to do, and that he denied plaintiff no credits, but that the trustees would have sold the property only to pay what was due, and only so much as was necessary for that
On the 26th day of October, 1876, the cause was heard on bill, answer and exhibits; and the. court dissolved the injunction, and subsequently dismissed the bill. From the said decree the plaintiff, A. N. Curry, appealed, and here insists, that the court should not have dissolved the injunction and dismissed the bill, but should have ascertained the balance due upon the debts secured in the several trust-deeds.
It was held in Rossett v. Fisher, 11 Gratt. 499, that a trustee may and ought upon his own motion to apply to a court of equity to remove impediments to a fair execution of his trust; to remove any cloud hanging over the title," and to adjust accounts, if neeessary, in order to ascertain the actual debt, which ought to be paid by the sale, or the amount of prior incumbrances, if disputed. And he will be justified in delaying the sale for these preliminary purposes, until such resort can be had to a court of equity. If he should fail however to do this, the'party injured by his default has an unquestionable right to do it; whether such party be the creditor secured by the deed, or a subsequent incumbrancer, or the debtor himself, or his assigns. But if there is no doubt as to the amount of the debt due, the sale will not be enjoined until an account is taken. Michie v. Jeffries et al., 21 Gratt. 334. In the case at bar, the bill alleged, that the plaintiff was entitled to certain credits, which the cestui que trust denied, and therefore the bill alleged sufficient to authorize the interposition of a court of equity, but the answer denied this allegation of the bill, and no proof was taken to sustain the bill. Of course if there was no other ground for an injunction it was properly dissolved.
But it is further insisted, that George W. Curry, the cestui que trust, having bought the debts secured in the first two deeds for the benefit of Seashol, the injunction ought not
The mere fact that Curry had bought the notes secured in the first two deeds could not change his right to have the property sold to pay his debt secured by the third deed of trust.
It is alleged that the injunction should not have been dissolved, because the advertisement did not say that the trustees would sell the lands, or so much thereof as was necessary to pay the liens.
The authority under which the said trustees acted, declared, “Should default be made in the payment of said debts as aforesaid, then the said Joseph R. Hill and James Curry, trustees, whenever they shall be required, shall proceed to make sale of the property hereby conveyed to the highest bidder for ready money, having first advertised the time and place of sale,” &c. There is nothing in the deed or the law applicable to trust-sales that required the trustees to say in the advertisement of sale, that they would sell so much as might be necessary to pay the debts. The interest of the debtor might require that they should sell all the property, as in Anchor Stove Works v. Gray et al. supra, and it might bring much more than enough to pay the debts, and of course the
It is further insisted by counsel for appellant, that Robert Curry was interested in this last deed of trust and by virtue of it in the first lien on one hundred and ninety acres, but he had no interest in the first two deeds of trust, and how could it be said, after the sale had been made of the whole five hundred acres in the manner proposed by the trustees, what sum the one hundred and ninety acres had brought, and what sum had been realized by the sale of the three hundred and thirty-seven acres? Rossett v. Fisher, 11 Gratt. 499, is cited to show, that a sale can not be made in this way. Here again is an authority not at all applicable. In Rossett v. Fisher, at the time the deed of trust was executed, the grantor had only an equitable title to the land ; and the court held, that it was an abuse of the power of the trustee under such circumstances to sell the property before obtaining the legal title. That is a very different case from this. Here Curry had the legal title, when he executed the first deed of trust, and afterwards he of course only conveyed his equity of redemption; and the amount of the prior liens being certain and ascertained, the sale of the equity of redemption under the last trust would be proper. Shurtz et als. v. Johnson et als., 28 Gratt. 657. As to all the lands not before conveyed, the trustees held the legal title, and as to the residue only the equity of redemption ; and the trustees under the last deed of trust were simply executing the contract of the grantor, nothing more, and he certainly has no right under the circumstances of this case to complain.
The apppellant, further claims by his counsel, that it was unjust and inequitable to sell his land to pay the whole of a debt, of which he himself owned a part. No such fact appears in this case. Robert Curry, who was secured in the last deed of trust, is dead, it is true, and it is also true, that A. N. Curry, the appellant, is one of his heirs at law; but it is not true, that because he is an heir at law, he is entitled to
There is no error in the decrees complained of; and they are affirmed.
Decrees Appirmed,