15 W. Va. 425 | W. Va. | 1879
delivered the opinion of the Court:
It is contended by counsel for appellant, that it was error io sequester the rents and profits of the real estate of the defendant, until the amount of the liens and their priorities were ascertained ; and the case of Hollingsworth v. Brooks, 7 W. Va. 559 is cited to sustain their position. That cause has no application here, it being unlike this. The decree in the cause now before the court was not rendered for the purpose of enforcing the liens, but to preserve the estate pending the litigation. . If it was a case of that kind, there was no error of which the appellant could complain, as he had consented to a decree to sell the property at a time specified therein, if he should not before that time pay certain debts secured by deed of trust, which debts he had failed to pay.
The question arising upon the record and presented in
There are two ways of enforcing judgment liens, either by renting the property where the rents and profits will pay the liens charged upon the real estate within a reasonable time, or by selling the real estate ; and whether the lien is enforced in the one way or the other, the court-should act with fairness and prudence and with a just regard for the interest of all the parties interested, whether they be debtors or creditors. The court in enforcing the lien of a judgment in either of the inodes prescribed, pen-dente lite, will not take the property out of the possession of the debtor, unless it is necessary to preserve the rents and profits to meet a deficiency at the sale. When it appears to be necessary to sequester the rents and profits to meet such deficiency, justice to the creditors requires that the property should be taken out of the debtor’s possession, and the rents and profits sequestered.
Decree Appirmed.