66 W. Va. 421 | W. Va. | 1909
A decree of the circuit court of Barbour county, pronounced on the bill of E. T. George, administrator of Allen V. Wilmoth, against J. N B. Crim and others, praying, among other things, subrogation of the estate of plaintiff’s decedent to the benefit of judgment liens on a certain tract of land, conveyed by the debtor to Crim, in satisfaction of certain other liens, pending a suit by said Crim against the debtor, one John Howell, having conditionally set aside said deed to the extent of said alleged lien, adjudged the land liable therefor in the hands of E. II. Crim and Melville Peck, vendees of said J. N. B. Crim, and referred the cause to a commissioner, the said E. H. Crim and Peek have appealed.
The facts and proceedings involved have furnished the basis of some three or four suits, the records of all of which have been brought together in this cause by reference, adoption, consolidation and otherwise. One of these was instituted by J. N. B. Crim against John Howell in 1887 to enforce the liens of several judgments, recovered by the former against the latter, among which were the following: One for $979.39, rendered June 19, 1876, one for $992.13, rendered Apr. 9, 1877, one for $655.59, rendered May 24, 1899, and one for $3,090.00, rendered Dec. 17, 1883. There never was a final decree in this cause. The second suit was brought by Geo. A. Lough against said Howell, in 1889, for rescission of a contract of sale of 30 acres of land by the latter to the former, carried into conveyance. As consideration for this land, Lough had paid Howell $350.00 and executed his notes for the residue of purchase money, amounting to $550.00, secured by a vendor’s lien. Finding the land encumbered by judgments in favor of Crim and others, he refused to pay any part of the notes,
Howell had dealt very extensively in land, and purchased largely on credit and contracted a vast amount of indebtedness, which was reduced to judgments and held mainly by J. N. B. Crim. The record in the cause of Crim v. Howell shows Crim had owned more than twenty judgments against Howell and Howell and others. Some of these had been released, but the amounts remaining unsatisfied and unreleased were large. The report of. the appraisers in the bankruptcy proceeding indicates Howell’s ownership of eleven tracts of land in Barbour county and two in Randolph county, valued at about $17,500.00. They were sold in said proceeding for $12,205.00'. By the referee’s report in that proceeding, it appears that Crim proved lien indebtedness, amounting to $14,857.80, and the representatives of the estate of Samuel Woods, deceased, • such indebtedness amounting to $1,762.85. The Crim judgments, held by recovery and assignment from others, range in date from June 19, 1876, to August 14, 1893, and in amounts from slightly over $100.00 up to more than $4,000.00.
The bill of George, administrator of Wilmoth, sets up the recovery by Crim of the judgment of February 4, 1893, against John Howell and Wilmoth for $324.00 and costs; the recovery of the judgment against John Howell, Wilmoth and the two Dilworths for $1,036.60 and costs, on the 22nd day of May, 1892, averring the same to have been predicated on a note made by John Howell, Wilmoth, the two Dilworths and J. E. Howell; the recovery against John Howell and Wilmoth of the judgment for $133.71 and costs, on the 18th day of February, 1892; the conveyance, by Howell, to the Browns and Gall, of the land hereinbefore mentioned and the subsequent conveyance thereof by the Browns and Gall to the Pennsylvania Coal & Mining Company, a corporation; the conveyance of the other land above mentioned by Howell to Crim and bjr Crim to E. H. Crim and M. Peck, and the application of the proceeds of the sale as already stated; the issuance and levying of a portion of some of the executions, mention of which has been made; and the suretyship of A. Y. Wilmoth in the three debts against him and Howell and others, and notice thereof on the part of J. N. B. Crim before the rendition of the jud'g-
The court entered a decree declaring liens upon the real estate of Howell, in favor of Wilmoth’s administrator for the three debts set up in his bill, setting aside the deed from Howell to J. N. B. Crim and. from said Ctim to E. H. Crim and Peck, in so far as the same affect the liens aforesaid, and referring the cause to a commissioner to ascertain the real estate Howell owned at the time of the institution of the suit against him by Crim, liens thereon at that time, what disposition had' been made of said real estate, what real estate, if any, Iiowell acquired by purchase after- the institution of that suit, what real estate he owned at the date of the three judgments against him and Wilmoth and others, what real estate he sold or conveyed pending the suit, what real estate he owned at the time of his death, what real estate was owned by the defendant, J". E. Howell, against whom relief is prayed as a co-surety of Wilmoth, and whether the judgments mentioned in Crim’s bill against John Howell and J. E. Howell are liens which have been paid and discharged, and who was principal and who surety in the judgments, what executions had been issued and whether levied upon property sufficient to pay the debts, and the annual rental of all the real estate owned by J. E. Howell. In setting aside the deeds to Crim and Crim and Peck, the decree says, “but in case it shall hereafter appear from an order of reference to be herein made that John Howell is the owner of other real estate liable to the lien
The first contention is that the decree is not appealable. This, we think, is untenable. It sets aside deeds and declares liens upon real estate, thereby settling the principles of the cause. What remains to be done is merely executory in character. Wood v. Harmison, 41 W. Va. 376. It is not a final decree, but it is an interlocutory decree, made appealable by the statute.
Failure to establish the relation of surety on the part of the plaintiff’s decedent is strongly urged as a ground of error. One response to this charge on the part of counsel for the appellee is that the allegation of suretyship is not denied by the answers. Though somewhat informal, inartistic and general, there is a denial in the answer filed by E. H. Crim and Peok, as executors, and in their own right, which we have quoted. In the absence of an exception to it for generality and a demand for a more specific denial, we think it is sufficient. Sandusky v. Farris, 49 W. Va. 150; Burlew v. Quarrier, 16 W. Va. 108; Richardson v. Donahoo, 16 W. Va. 685; Dent v. Pickens, 59 W. Va. 274. This contention being overruled, it is next urged that there is no proof of the fact of suretyship. The only oral testimony offered to establish it is that of J. E ITowell and G. W. Dilworth, both of Avhom are parties to this suit and interested in the result thereof. They were co-sureties of the plaintiff’s decedent in the judgment for $1,036.60, according to the allegations of the bill and their own testimony, and the bill seeks relief against them as such, although there is no specific prayer for such relief. The ineompetency of these witnesses is obvious. Being parties to the suit and interested in the event thereof, they are within both the letter and spirit of section 23 of chapter 130 of the Code. If the plaintiff should succeed in obtaining re-imbursement out of the John Howell lands, they will be relieved from liability as co-sureties. There is documentary evidence, however, of the suretyship of Wilmoth in the judgment for $133.71. A copy of the order in which that judgment was taken was introduced in connection with the deposition of the clerk of the circuit court,
The payment of this judgment by Wilmoth, without any assignment thereof, gave him right in a court of equity to take and exercise all the remedies and powers and rights against Howell, his principal, that had previously been vested in Crim. In other words, having paid the judgment, he could enforce the lien thereof for his benefit against the lands of Howell. 2 White & Tudor’s Leading Cases 278; Brandt on Suretyship, section 341; Sheldon on Sub., section 87.
Fully cognizant of this principle, counsel for the appellee say Wilmoth’s personal representative is estopped from enforcing this lien by his failure to set up in the suit, brought against him by Crim, what is said to be a release, by reason of Crim’s purchase of the Bill’s Creek Farm. It is argued that the purchase of this farm by the judgment creditor satisfied the liens thereon, whether its value was equal in amount to the liens in question
Whether the surety was thereby released, in whole or in part, depends upon the value of the land and the amount of the subsisting prior incumbrances. If there was nothing of value
These executions were not on the Wilmoth judgments. The personal property on which liens were acquired by these executions never was in any way subjected to any lien for the Wil-moth debts. For the satisfaction of these debts, it never was in Crim’s hands or under his control, however effectual^ he may have had it in his power for appropriation to the satisfaction of' other debts, and however ample it may have been to pay them. In releasing his lien upon it, or diverting the proceeds thereof to other debts of later date and not so well secured, Crim may have obtained large advantages, but it is clear that he took nothing from Wilmoth nor released or misappropriated anything upon which the Wilmoth judgments were in any sense or in any degree liens. Whatever may have come into Crim’s hands in this way, or however irregularly he may have obtained it, there is no evidence that he received it either for payment of, or as security for, the judgments in which Wilmoth was surety, and he could, consistently with all the duty he owed Wilmoth in respect to these debts, pursue his remedies against Howell for his other debts, and, if Howell waived irregularities, or voluntarily paid these other judgments or surrendered property in satisfaction of them, on
What is the status of E. H. Crim and M. Peck, to whom J. N. B. Crim conveyed the land? They are admittedly volunteers. The conveyance to them was a gift of the land. The suretyship of Wilmoth in the judgment for $133.71 was a recital in the chain of title. Hence they took the land with notice of it and gave nothing of value. Wilmoth’s claim was not then a debt in the ordinary sense of the term, but it was an equity in respect to the land, disclosed by the title papers, in view of which it is impossible to say Crim and Peck are protected as innocent purchasers. In a sense they are purchasers, and, if the Wilmoth, demand were against J. N. B'. Crim and an ordinary debt, he being solvent and amply able to make the conveyance without detriment to his creditors, they would be protected. But as we have said, it was an equity in respect to the land, conveyed to them, of which they were, apprised by the recorded papers, pertaining to the title, so that they cannot be regarded as innocent purchasers, even if they had purchased for value. They are therefore, in no better situation than their donor.
The bankruptcy proceeding is relied upon as precluding relief in this suit. The record of that proceeding shows no express discharge of the bankrupt, but, if it did, such discharge would only relieve the debtor from further personal liability. Moreover, it does not show that the land conveyed to the Browns and Gall and Crim were in any way involved in it. They were neither sold therein nor the previous sales thereof confirmed by any order or decree made. Whatever may be the effect of the failure of the record of that proceeding to disclose these matters, it is certain the bankruptcy of a debtor and his discharge do not destroy any security a creditor may have for his
The last defense relied upon is laches. The right of subrogation accrued October 29, 1899, when Wilmoth paid off the judgments. This suit was brought early in January, 1904, less than live years after the accrual thereof If the statute of limitations applies, in such cases, the time is too short. If it does, not, and the equity principle of laches alone governs, we see nothing, in the circumstances of the case, calling for the application thereof. The lapse of time is not great, and, although Crim, Howell and Wilmoth are all dead, the evidence is chiefly documentary. The ease is not dependent, to any considerable extent, upon oral evidence, lost by the death of witnesses and parties. The records in Crim v. Howell and the other suits probably preserve and disclose, in documents and admissions, all that any of them-could say, if they were still living. Nor have any new rights vested since the accrual of the cause of action..
Prima facie, there is a lien upon, and right to proceed against, the alienated land, in respect to the one judgment for $133.71, but none as to the other two, set up in, plaintiff’s bill. This one lien, however, cannot take precedence over the prior liens on the property held by Crim and others. It must take its place in the regular order of priority. In equity, all of the prior Crim judgments and all others on the Howell land, not paid or released, must be regarded as alive and subsisting for the purposes of the settlement of the controversy between Wilmoth and the owners of the Howell land, just as effectually as if the title thereto were still in John Howell. The court erred, therefore, in declaring the lien for $133.71 to-be a lien upon these lands, to the'exclusion, of other liens thereon, and treating it and the other two claims set up in the bill, as the only liens thereon. It further erred in declaring the liens for $324.00 and $1,036.60 as still subsisting in favor of the plaintiff, there being no proof that Wilmoth was surety for these debts, nor of any notice to Grim that he claimed any equity as surety in respect to them. It further erred in setting aside the deeds from John Howell to J. N. B. Crim, and from said Crim to E. H. Crim and M. Peck. So far, these deeds do not appear to be
For the reasons staled, the decree will be affirmed in so far as it declares a lien in favor of the plaintiff for the judgment for $133.H, costs and interest, and refers the cause to a commissioner to take, state and report an account, and so far only; and, in all other respects and in every other particular, the same is reversed and the cause will be remanded to the circuit court of Barbour county for further proceedings in accordance with the principles and conclusions herein stated, and further according to the principles and rules governing courts of equity.
Affirmed in part. ■ Reversed in part. Renvcmded.