11 W. Va. 511 | W. Va. | 1877
delivered the opinion of the Court.
The question presented in the record is: Did the petitioner, Robert Patton, under the circumstances, have the right to be made a defendant to the cause, and did the court err in denying him leave to file his petition? Counsel for the petitioner insists that the court did err in so refusing the leave to file the petition, and assign a number of ■ errors. The first is that “ the petition sought to be filed, and the accompanying exhibit dis
.. It could have no such effect; he might have rights in the property in controversy, and yet have no right to be a party to the suit. He was a pendente lite purchaser, as we shall hereafter show. If he had no right to be a
Another error assigned is, “that it appears by the agreement aforesaid that Patton had assumed, in part payment of the price of said lands, to pay the plaintiff (Harmon’s) debt, as well as the debt to Capehart’s executor. On this fact being known to the court, taken in consideration with the allegation of said petition, that he had paid part of said debts, and had sold of the lands in controversy enough to'pay the residue of said debts, it was error to refuse permission to said Patton to show these facts.” If he had agreed to pay the Harmon debt, why did he not pay it ? He certainly could not ask Harmon, who had nothing to do with any agreement between himself and Byram, to wait until he could collect money enough off the parties, to whom he had sold any of the lands, to pay the said lien. The allegation as to payment of any part of the Harmon debt is vague, and indefinite; it is : “Your petitioner employed Mr. Geo. Rowley, living near the lands in Mason county, to make these sales, and to collect the purchase money, and apply the same to the lien aforesaid. The said Rowley has collected and applied of said proceeds more than $400.00 to the debt of said Harmon.” It is not said how, when or to whom, the money was paid. In the joint and several answers of the administrator, with the will annexed, and devisees of said Byram, it is claimed “ that there should be two credits placed on said judgment for money paid thereon since the rendition of the same, to-wit: One for the sum of $297.80 as of the — day of June 1872, and the other for $200.00 as of the 18th day of August 1872, as they have been informed and believe is the case. It is presumed that this
It is assigned as error, “ to decree the sale of the lands, in the face of the allegations of said petitioner, that he had already sold to bona fide purchasers at a fair price ,sufficient of the same land to satisfy the plaintiff’s demand, before inquiry bad been made on this point. This assignment is not worthy of serious consideration. It would be monstrous to hold that a judgment lienor under the circumstances of this case, should be arrested in his effort to enforce his lien, until the debtor or bis vendee had sold lands and collected the money sufficient to pay the debt, or wait until he had collected by suit or otherwise sufficient money to discharge the lien. It is also assigned as error, “ to decree the sale of the land, -when it appeared to the court, that there were bona fide owners of the equitable title thereof, without giving such owner, an opportunity of showing their rights in the premises.” It does not appear what equitable owners there were except Patton himself, and he claims to be a legal owner. The petition does not show, that anybody had any right to prevent the judgment lienor from enforcing bis lien and again those alleged “equitable owners,” if such there be, were not asking anything of the court.
It is also assigned as error, “to enforce the lien of a
The common law doctrine of lis pendens, as applied to this case, is in bo way affected by sec. 14 of chap. 139 of the Code, which provides that: “The pending of an action, suit or proceeding to subject real estate to the payment of any debt or liability, upon which a previous lien shall not have been acquired in some one or more of the methods prescribed by law, shall not bind or affect a purchaser of such real estate, unless, and until a memorandum, setting forth the title of the cause, the court
For the foregoing reasons I am of opinion, that the appeal was improvidently allowed; and it is therefore dismissed at the costs of the appellant.
Appeal Dismissed.