52 W. Va. 523 | W. Va. | 1903
This, with the canse of Baldwin Ballard against W. S. Chewning and others, was here once before, upon appeal granted to defendant, W. S. Chewning, from the decree of the circuit court of Monroe Comity, made in said causes, heard together, on the 23rd day of March, 1899. Said decree decides that a certain deed of trust, executed by defendant, J. W. Chewning, to L. P. Dunn, trustee, bearing date on the- 31st day of May, 1897, to secure to W. S. Chewning, a brother of the grantor, the payment of an alleged demand for two thousand seven hundred and fifty dollars was and “is fraudulent per se, on the face thereof, and is void,” and was and is set aside; and it is further adjudged, ordered and decreed that the plaintiffs, (Geiser Manufacturing Company and Baldwin Ballard), have a lien on the land in the bills and proceedings mentioned (being the same lands in said trust deed described) for the amounts of their respective demands; that they have a right to enforce the same in -said causes; and that said causes be referred to W. McD. Johnston, a commissioner of the said circuit court to ascertain and report the amount of real estate, owned by the defendant, J. W. Chewning; what liens, if any, were against said real estate, prior to the institution of the suits of the plaintiffs; the amounts the plaintiffs are entitled to recover'from the defendant, J. W. Chewning; and any other matter deemed pertinent by himself, or required by any party in interest.” That decree was affirmed by this Court. 49 W. Va. 508.
After the said causes had been remanded to the circuit court, Commissioner Johnston executed said order of reference, and ascertained and reported, as “Class 1,” a judgment in favor of Baldwin Ballard v. J. W. Chewning, recovered on the 21st day of June, 1897, for two hundred and ninety-four dollars and eighty-eight cents, with interest from date last aforesaid and two dollars and thirty-five cents costs, amounting, in the aggregate on the 15th day of October, 1901, to three hundred and seventy-three dollars and sixty-four cents; in “Class 2,” a debt due The Geiser Manufacturing Company, amounting on said
The said Geiser Manufacturing Company excepts to the report because it gives said Baldwin Ballard a priority over said, company; and because said report includes in “Class 2,” the said judgment in favor of E. N. Crews. Said J.'W. Chewning excepts to said report which finds the said balance of six hundred and fifty-six dollars and eighty-one cents against him in favor of the said company, when the proof taken and filed shows that said debt is entitled to a credit of about five hundred dollars. Commissioner Johnston, among other things in his said report, says: “Your commissioner would' further report that the attorney for J. W. Chewning contends that the debt due the Geiser Manufacturing Company should be credited by four hundred dollars instead of the one hundred and eighty-five dollars, and that the sale of the trustee G. W. Graves was void bv reason of the fact that the trustee became the purchaser of the trust property; your commissioner believing the question raised to be one of law respectfully refers the matter to the court for a decision. The testimony taken in reference to this matter as well as all testimony used before your commissioner in taking of said accounts is herewith returned as a part of this report.” The testimony referred to in said report are the depositions of W. C. Iiarvey, Jr., and J. W.' Chewning. The caption thereof states that they were “taken before W. McD. Johnston, Commissioner of Monroe circuit court, at his office in the town of Union, West Virginia, on the 2Gth day of September, 1901, pursuant to notice for the taking of certain accounts in the chancery cause of Baldwin Ballard against J. W. Chewn-ing at ais., and the Geiser Manufacturing Company against the same now pending in the circuit court of Monroe County, West Virginia., which are to be read and used as evidence in the taking of said accounts and on the hearing of said cause.”
The Geiser Manufacturing Company also excepts to the read
On the 31st day of October, 1901, the said circuit court heard said two causes together, upon the papers formerly read therein, the mandate of the Supreme Court of Appeals of West Virginia, the report of Commissioner W. McD. Johnston, with exceptions to said report by the said Geiser Manufacturing Company, and by the defendant, J. W. Chewning, the depositions of witnesses taken before said commissioner with the exceptions to the reading of the depositions of W. C. Harvey and J. W. Chewning by the Geiser Manufacturing Company, the petition of J. D. Logan filed that day by leave of the court, and waiver of process by the defendants to said petition, and was argued by counsel; whereupon the court sustained the exception of the Geiser Manufacturing Company to said report, and overruled the said exception of J. W. Chewning taken thereto; and also sustained the exceptions of the Geiser Manufacturing Company to said depositions of W. C. Harvey and J. W. Chewning and excluded said depositions. And without recommitting said report, the court corrected the same, and thereupon adjudged, ordered and decreed that the said company and parties should recover from the said J. W. Chewning as follows, to-wit: The Geiser Manufacturing Company, six hundred and fifty-six dollars and eighty-one cents; Baldwin Ballard, three hundred and seventy-three dollars and sixty-four cents; J. D. Logan and J. L. Rowan, one hundred and seventeen dollars and ninety-six cents; and J. D. Logan, thirty dollars and sixty-five cents. Each of said sums are to bear interest from; the 15th day of October, 1901, and said Ballard and the Geiser Manufacturing Company are decreed their respective costs in their said suits. It is further decreed that unless said J. W. Chewning shall pay said sums as required, within -thirty days after the rising of the court, then John Osborne and J. D. Logan, who were, by the court, appointed special commissioners for the purpose, were authorized and directed to sell the lands in the bills and proceedings mentioned, at public auction, after giving the notice prescribed. The decree further provides that out of the proceeds of the one hundred and fifteen poles of land, the debt of J. D. Logan shall be first paid, and that the proceeds of the
From this last decree the said J. W. Chewning was allowed an appeal, who assigns as error: That the circuit court erred in overruling his exceptions to the commissioner’s report; that he should have been allowed credit for four hundred and forty dollars instead of one hundred and ninety-three dollars on the debt decreed to the Geiser Manufacturing Company; that the court erred in sustaining exceptions to the depositions of W. C. Ilarvey and J. W. Chewning, and refusing to allow them to bo read; that said court erred in failing to recommit the cause to the commissioner with instructions to retake said depositions; erred in rejecting appellant’s amended answer; erred in pronouncing final decree without making G. W. Graves, trustee, a party to the cause; erred in not considering appellant’s answer, filed in the cause at the October term, 1898; and erred in not lidding void the sale of the engine mentioned in the proceedings of said cause.
The question presented-to the circuit court by the bills in each of said two causes was and is the alleged fraudulency of the said deed of trust. The court, on the first hearing, “without passing on the objections of W. S. Chewning to the reading of the answers, interrogatories and answers thereto, (no objections being set out in the record,) and without passing on the evidence of the witnesses, examined in the case, was of opinion that the deed of trust executed by J. W. Chewning to L. P. Dunn, trustee, is void on its face; that the same shall be annulled and set aside, and that the plaintiffs have a lien on the land in the bill and proceedings mentioned, for the amount of their respective debts; and that they have the right to enforce the same in this cause.”
The court expressly adjudicated three matters, viz., that the
The indebtedness of said J. W. Chewning to the Geiser Manufacturing Company is evidenced by his three several promissory notes, two for two hundred and twenty dollars each, and one for two hundred and ten dollars, each bearing date on the 39th day of July, 1895, and payable to said company, on the first day of December, 1895, 1896, and 1897, respectively, with exchange and interest. These notes were given for the purchase price of a certain Geiser steam engine on wheels which said J. W. Chewning had bought from said company.
Said.J. W. Chewning, on the same day, executed and delivered his deed of trust, bearing even date with the notes, conveying said engine to G. W. Graves, trustee, to secure the payment of said notes, in which deed it was, among other things, expressly stipulated and provided that “in case default shall be made in the pajonent of any one of the .above notes or part thereof,” etc., etc., “then the said company shall have the right to declare all the above notes due, and then, or in either of said causes named, said trustee aforesaid shall take immediate possession of the property thereby conveyed,” etc., etc., “and upon notice from the Geiser Manufacturing Company shall proceed to.sell the same at public auction upon such terms, and at such time and place, and after such notice as shall to him seem proper and suitable, and after paying the costs and expenses of executing this trust and reasonable attorney fees, he shall apply the balance, if any, to the payment of the notes and interest hereinbefore mentioned,” etc., etc. ■
On the 33nd day of March, 1898, the defendant, J. W.’ Chewning, filed his answer to the plaintiff, Geiser Manufacturing Company’s bill to which answer the plaintiff replied genrally, in which answer, he, among other things alleges that “it is true as alleged in said bill that he purchased from plaintiff an engine at the price of $-, of which he paid thirty-two dollars and
In McCandlish, admr. etc., v. Edloe et als., 3 Grat. 330, 333, it is held: “Where a commissioirer in his regular proceedings to adjust and settle accounts .referred to him, takes the depositions of witnesses to enable him to act upon the subject, his general notice of such proceedings is sufficient, without a special notice from him, or the edverse party that such depositions will be taken.” The circuit court, therefore, erred in sustaining the exception to the said depositions, but the credit which they established, having been properly given by -the commissioner, the error is not prejudicial to the appellant.
If the sale of the engine made by Graves, trustee, to himself, is void, as claimed by the appellant, no person is bound thereby. If it be voidable only, although the appellant bo prejudiced, he cannot have it set aside in this collateral way, but must resort to a dirpet proceeding upon a proper case for the purpose.
It does not appear that the plaintiff, the Geiser Manufacturing Company, participated, in any manner, in either of said
The appellee, Geiser Manufacturing Company, cannot be charged with the four hundred* dollars for which Graves sold the engine the second time. Therefore, the said exception of appellant to the commissioner’s report relating to that matter was properly overruled by the court. The amended and supplemental answer tendered by J. W. Chewning, and on objection thereto, rejected by the court, is in substance, the same as his original answer, with the addition of the prayer that it be treated as a cross bill and that process be awarded thereon. It was properly rejected.
The said causes are not brought or prosecuted under section 2 of chapter 74 of the Code, but are instituted under section 2 of chapter 133, to avoid the said deed of trust, executed by J. W. Chewning to L. B. Dunn, trustee.
Plaintiff, Baldwin Ballard, recovered his judgment against defendant, J. W. Chewning, on the 21st day of June, 1897, nearly a month after said deed of trust had been executed by Dunn, trustee, and at the rules, held on the first Monday of July, 1897, filed his bill against said J. W. Chewning and others attacking said deed of trust. The summons commencing his said suit was issued, and bears date, on the 7th day of July, 1897. The Geiser Manufacturing Company, without obtaining judgment on its demand, filed its bill against the same parties for the same purpose at rules on the first Monday in August, following; but the summons commencing the suit was issued, and bears date, on the 15th day of June, 1897.
The court, by its decree appealed from, in effect held that the said judgment in favor of Baldwin Ballard, and the said demand of six hundred and fifty-six dollars and eighty-one e'ents in favor of the Geiser Manufacturing Company, reported by the commissioner, were and are of equal dignity and priority, and shall be paid pro rala, out of the proceeds of the sale of said lands.
This is error. In Foley v. Ruley, et al., 50 W. Va. 158, this Court says, citing Wallace v. Treakle, 27 Grat. 479: "It is plain by the very terms of this statute the creditors, assailing
Lest the term, “from the time of filing his bill,” used in the case above cited, bo misunderstood and misapplied, wo deem it proper to apply to this language "the force and effect which must be given to¡ it.
The Code, section 5 of chapter 124, says: “The process to commence a suit, shall be a writ commanding the officer to whom it is directed, to summon the defendant to answer the bill or action.” Hr U. S. Blowpipe Co. v. Spencer, et al., 46 W. Va. 590, Brannon, Judge, speaking for the Court, says: “And I must assort that upon a review of the authorities, the issuance of the writ, generally speaking, is the beginning of the suit, if no statute controls.” Jackson v. Hull, 21 W. Va. 601. There should bo no difference, under our statute, between law and chancery as to this. In Lambert v. Ensign Manf'g Co., 42 W. Va. 813, the Court says: “The suing out of the writ of summons
In Harmon v. Byram’s adm’r., 11 W. Va. 511, 521, the question was, whether Patton was a purchaser pendente lite. The Court says: “The subpoena was issued on the 3d day of January, 1872, and was served on the defendant Byram on the 6th of the same month. On the 20th day of January of the same year, the purchase was made; and the bill was filed at February rules following. A subpoena served is not a sufficient Us pendens, unless a bill be filed'; but when a bill is filed, the lis pendens begins from or relates back to the service of the subpoena,” 3 Sug. 459; Newman v. Chapman, 2 Rand. 93. In O'Connor v. O’Connor, 45 W. Va. 354, 361, English, Judge, for the Court, uses this language: “The purchase was made on September 1, 1893, the suit was instituted on the 15th day of August, 1893, and the process had been served before this purchase was made, and before the bill was filed. The process having been served on the defendant Womelsdorff on the 18th day of August, and on John P. O’Connor on the 23d of August, and the bill filed at October rules, the Us pendens related to the service of the writ. Prom that time the suit was pending.”
in discussing this question in Blowpipe Co. v. Spencer, supra, says: “The point is made that this suit was barred, because not brought within six months, on the theory that service was not within that time. I doubt the correctness of Stone v. Tyree, 30 W. Va. 687, in its holding that lis pendens dates from the service of the subpoena only. In an action at law, the suit dates from the writ issued. Newman v. Chapman, 2 Rand. 93. Authorities there shown date it in the chancery suit from service. This rule is based upon, the English Chancery practice, from the fact that never till bill filed did writ issue, and the mere filing of a bill before writ was no suit; but now our Code (chapter 124, section 5) says that ‘process to commence a suit shall be a writ;’ applying to both chancery, and action at law. A suit exists at its date.” Judge English,
From the English chancery practice of filing the bill, before issuing the writ, originated the idea that the filing of the bill is the commencement of the suit, and upon this theory, the terms, “commencement of the suit” and “the filing of 'the bill,” have been used as correlative and equivalent in meaning.
It must be observed that our statute places a suit in equity ,and an action at law upon the same basis, as to the issuance of the writ commencing the same.
It seems that the great weight of authority fixes the issuance of the writ, as the commencement of the suit or action; that the date of the writ is prima facie evidence of the time of its issuance; and that when the bill or declaration is filed, it relates back to the issuance of the writ.
In this class of cases, it is generally considered a race of diligence by the creditors of the fraudulent debtor. Legal remedies are for the active and diligent. Lex vigilantibus fernet. The creditor discovering the fraudulent conveyance of his debtor, immediately commences his suit, by causing summons to bo issued commanding the debtor to answer the bill to be exhibited against him. It is the duty of the sheriff or other officer of the court, wherein the suit or action is instituted, to serve the process commencing the same; and the process may be executed on or before the return day thereof. The creditor thus diligent should not be postponed for some other creditor, who may have first secured service of his writ, as it may be, through favoritism of the officer to' the one, or negligence toward the other. It will not do to say, in answer, that the first creditor might have had service made by an individual. He may, but is not required, to do so. He is entitled to the service of the public officer, chosen by the people for the purpose. The right
We, therefore, hold that the commencement of the suit or action is the issuance of the writ, except in the action before a justice, for which the statute provides otherwise; and that when the bill is filed it relates back to the time of the issuance of the writ.
Applying the foregoing principles to this case, the said Geiser Manufacturing Company has priority over Baldwin Ballard. The judgment against said J. W. Chewning in favor of said Crews, reported for the use and benefit of said J. L. Rowan and J. D. Logan, having been recovered on the 4th day of January, 1898, after the commencement of both of said suits, is not entitled to equal dignity and priority, and to be paid pro raia with the said debt due the Geiser Manufacturing Company, or the judgment in favor of Ballard. The court, therefore, erred in holding that fifty dollars and eighty-seven cents, part thereof, should be paid pm rala with the debts decreed in favor of said plaintiffs. The decree further provides that thirty dollars and sixty-five cents with interest from the date thereof, shall be first paid out of the proceeds of the sale of the one hundred and fifteen poles of land, to J. D. Logan. The reason for this preference is not given. It is presumed to be correct.
The decree of the circuit court is, therefore, hereby modified in so far as it holds that the demands of said Baldwin Ballard, the Geiser Manufacturing Company, and part of the said judgment in favor of Crews are of equal dignity and priority, and entitled to payment pro rata as aforesaid. The decree of the circuit court is hereby modified to the extent, that the debt, interest and costs decreed to the Geiser Manufacturing Company, be and the same is first in priority, and shall be first paid out of the proceeds of sale of the land in the deed of trust described; except the proceeds of said one hundred and fifteen poles thereof; that the said debt decreed to Baldwin Ballard is second in priority, and is entitled to be next paid out of said proceeds, except as aforesaid; that, after the payment of said thirty dollars and sixty-five cents with its proper interest, out of the proceeds of the sale of said one hundred and fifteen poles of land, the balance thereof, if any, shall be applied to the payment of said Geiser Manufacturing Company and Ballard in their pri
The decree of the circuit court aforesaid, so modified, is affirmed with costs to the Geiser Manufacturing Company against the appellant; and said causes are remanded to the said circuit court for such other proceedings as may be proper for the execution of said decree of sale.
Modified and Affirmed.