6 W. Va. 238 | W. Va. | 1873
On the 17th day of May, 1871, Thomas A. Henning filed his bill with injunction, before the Circuit Court of Greenbrier County, against William Fisher, Samuel Kincaid and Henry W. Moss, with exhibits, alleging that at the April term of said Court, on the law side, a. judgment was rendered against him upon two bonds in favor of Henry W. Moss, for §660.35, with interest thereon, from the 18th day of April, 1871, until paid, and costs of suit,'amounting to $17.13; that the bonds were given in part for a house and lot in the town of Lewisburg purchased by him from William Fisher, who purchased of Samnel Kincaid; that Kincaid executed a deed, therefor, to said Fisher, dated March 16th, 1863, whiclfiwas Rot recorded, according to law, until the 16th November, 1871, when it was acknowledged and recorded; that it was “true the deed was spread upon record hy an officer professing to he the Qlerlc of the County Court, of Greenbrier, on the day of its date; but he was not such officer. lie had ceased io be such when the State seceded, or attempted to secede from the Union in the year 1861. So the deed toas void, * * * * against creditors and purchasers without notice.” That in the meantime, judgments were rendered against said Kin-caid, “and were registered with the Clerk of the County Court, and with the Recorder of said County,” (a list of which judgments was filed with said bill.) He further alleged, that at the time he executed said bonds, he was ignorant of the existence of said judgments, and liens against the property; and that before he could “be safe in paying off the judgment aforesaid,” those “anterior liens
He, therefore, prayed that the judgment be enjoined, and the collection thereof be inhibited; that the purchase money be applied to the extinguishment of said liens, or the contract, between him and Fisher, be set aside and annulled; and for general relief.
The Defendants separately demurred and answered > and the Plaintiff replied generally, the depositions of Henning and Kincaid were also taken.
On the 19th day of December, 1871, the Court hearing the cause upon the bill, exhibits, answers, and general replications thereto, depositions and arguments of Counsel, refused to dissolve the injunction, being of opinion that further indemnity should be given to the Plaintiff before the injunction could be dissolved.
From this decree the Defendants have appealed.
The first question with which we are met, is: Was
It is argued by the Appellee, and alleged in the bill, that the deed was not recorded according to law, until the 16th day of November, 1870, when it was so acknowledged and recorded; that it was true the deed was spread upon the record by an officer professing to be the Clerk of the County Court, of Greenbrier, on the day of its date; but he was not such officer; that he had ceased to be such when the State of Virginia seceded or attempted to secede from the Union in the year 1861, and that the deed was consequently, void as to creditors and purchsers without notice. The answers of Kincaid and Fisher affirm that it was, at that-time, 16th day of March, 1863 admitted to record in the County Clerk's office, of Greenbrier County.
Whatever may have been the ruling heretofore, in this Stale, it must now be decided, upon the authority of the Supreme Court of the United States, in Texas vs. White, 7 Wallace, 733. Thorington vs. Smith, 8 Wallace, 1: and the Supreme Court of Virginia, in Griffin vs. Cunningham, 20 Gratt. 31: and of the Supreme Court of Tennessee, in Sherfy vs. Argenbright, 1 Hieskill, 128, followed by this Court, in the case of Matthew Harrison, Ex'r., vs. Farmer's Bank of Virginia, decided this term, that whether the Government, under which the Clerk acted, at the time he recorded the deed'“was a Government defacto oí paramount force, or an actual though unlawful Government;, the acts of its officers, when not directly in aid of the war power, must be regarded as valid.” For, as stated by Chief Justice Chase, in Texas vs. White, “Acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate,
Whatever rights the Plaintiff may have against Fisher and Kincaid as to compelling the judgment creditors Feamster, to first exhaust his liens on the other real estate of Kincaid, or seeking other means of paying off the liens, he has none against Moss.
I am therefore of opinion that the decree appealed from is erroneous, and must be reversed, the injuncti on dissolved, and the bill dismissed, as to Moss, with costs to the Appellants, in this Court, and that Moss recover his costs in the Court below, against the Appellee Hen-ning ; and the cause must be remanded to the Circuit Court of Greenbrier County, for further proceedings to be had therein as to all the parties except Moss.