61 W. Va. 19 | W. Va. | 1906
This is a suit in chancery, brought in the circuit court of Greenbrier county, by the Ga,uley Coa.1 Land Association against Henry Spies and R. H. Ely, having for its object the enforcement of a vendor’s lien retained by .the plaintiff in a deed executed by it to the defendants, conveying to them all of the timber above a certain size standing upon various tracts of land in Greenbrier and Nicholas counties. From a decree in favor of the plaintiff, the defendants have appealed.
The defendants demurred to the bill, assigning as a ground therefor that the plaintiff filed copies of the contract, notes
A party is not required to file with his bill the original papers which form the basis of his claim, but he may aver -the contents of these papers, or' file copies of them with his bill as exhibits, at his pleasure. It is not ground for demurrer that he does not file the originals. The bill is clearly good, and the demurrer was properly overruled.
It is also claimed that the court erred in sustaining the exceptions of the plaintiff to the answer of Henry Spies. There were no exceptions to the answer, properly speaking. Exceptions are only taken to an- answer after it is filed. This answer was not filed, but uppn objection, the court rejected it. A court should, when an answer presents no defense to a bill, refuse to permit it to be filed when objected to. This answer presents no defense whatever. It does not deny a single allegation of the bill, neither does it allege affirmative matter of any kind. It is said, however, that it alleges that the plaintiff has computed interest on interest, and that therefore it constitutes a plea of usury, and is sufficient under sections 6 and 7, chapter 96, Code 1899, sections 3431 and 3432, Anno. Code 1906. The answer charges that there is no statement contained in the bill showing the amount due, and then says that the plaintiff has, in ascertaining the amount due, calculated and charged interest on interest, thus making the transaction usurious. The bill does not show any calculation as having been made by the plaintiff. It simply alleges the sale of the timber to the defendants, at a stipulated price, and that the defendants executed their notes for the deferred payments, and that all except two of them are due. Copies of the notes are exhibited with the bill, and no calculation is made. It is purely a question of calculation for the court. The plaintiff does not claim usury. It only claims the amount of the notes, with interest. The answer certainly presented no issue, and the court properly refused to allow it to be filed.
The next ground for reversal is, that the court .overruled the motion of the defendant, Ely, to quash the return of service as to him. He appeared specially and moved to quash the return, on the ground that it failed to show in what
Another point relied upon by the defendants is that the decree did not provide for the proper advertisement of the sale of the property, in this, that there are various tracts of land proceeded against, some lying in Greenbrier and some in' Nicholas counties, and that the decree only provided for the advertisement in a newspaper published in Greenbrier county, when it should have required it to be published in newspapers published in both counties.
Section la of chapter 132, Code 1899, section 3993 Anno, Code 1906, provides: “That whenever a court shall hereafter decree the sale of real estate, if it appear to the court that such real estate is of the value of five hundred dollars or more, it shall prescribe in the decree that such sale shall be
This statute was before this court in Duncan v. Custard, 24 W. Va. 731, and it was held to be mandatory, and that it was error not to require the land to be so advertised if it appears to the court that it is of the value of five hundred dollars or more. While this statute was so construed, yet that case differs somewhat from the case we have here. There it appeared that the value of the property was over five hundred dollars, and the court held it was error not to advertise it in a newspaper. Here it sufficiently appears that the value of the property is more than five hundred dollars, and the decree only required it to be advertised by publication in Green-brier county. Therefore, the question presented is, does this statute mean that when a suit is brought to sell several tracts of land, some of which lie in one county and some in another, that the sale shall be advertised in a newspaper published in both counties, or that it shall be so advertised in the county where the suit is brought and decree pronounced. .
Counsel for appellee argue that the timber decreed to be sold is situated upon one continuous tract of land. The record does not verify this argument; therefore, the reason for it fails. Inasmuch as it appears that the timber stands upon several distinct tracts, and as it does not appear that these tracts are contiguous, we are not called upon to decide whether or not a decree providing for the sale of a tract of land, or several contiguous tracts, lying partly in one county and partly in another, shall provide for the publication in a newspaper of the notice of sale in both counties where the land lies.
In construing this statute, we must endeavor to reflect the intention of the Legislature. That intention, as manifest from the terms of the statute, is to give notice co-extensive with the bounds of the land to be sold, in order that competitive bidding may be stimulated. This notice is for the benefit of the creditor, as well as the owner of the land. The former is interested in the land bringing the amount of his debt, while the latter is naturally desirous of the land selling for as large sum as possible.
But it is said that it must be presumed that the lower court instituted an inquiry and found that there was no newspaper published in Nicholas county, else it would, in its decree, have provided for the advertisement of the notice of sale in that county. We cannot see why this presumption should obtain. The statute is mandatory, and the decree should show a compliance with its provisions. If the court had entered into an inquisition, and found that there was no newspaper published in Nicholas county, the decree should have stated that fact. But on this subject it is silent, and it is manifest from all the circumstances that the attention of the court was not directed to this statute when the decree was entered, and that it was not intended to give any notice of sale in Nicholas county, because there is no provision for any kind of notice whatever in that county. If no newspaper be published there, such other notice as is required by law should have been provided for.
It is also said that the defendants, had they desired publication in more than one county, should have brought the matter to the attention of the court. We do not think that the defendants were required to take this step. The court was undertaking by its decree to sell their property, and they
Complaint is made that .the lower court refused to suspend the decree of February 6, 1906, to give the defendants time within which to apply for an appeal and supersedeas. There may be instances where to refuse to suspend a decree or judgment, serious injury might result, but we fail to see how tho refusal to suspend this decree can operate prejudicially to the defendants. Before the decree was enforced, this Court allowed an appeal and supersedeas; therefore the action of the lower court in refusing the suspension is rendered immaterial.
For the foregoing reasons, the decree of the circuit court will be modified, so as to provide for advertisement of notice of sale in both counties, and as so modified will be affirmed.
Modified ami Affirmed.