72 W. Va. 86 | W. Va. | 1913
Lead Opinion
After the case of Hogg v. McGuffin, 67 W. Va. 456, was decided by this Court, Gory Hogg died his amended or supplemental bill in the circuit court of Mercer county, setting up the fact that the money had been collected by the Citizens National Bank of Cha-rleston, on the Dixon notes payable to McGuffin, which had been deposited with it for collection in the manner and according to the agreement described in the former opinion in this cause, and prayed for a decree against the bank, directing it to pay to him the sum of $16,620, with interest, in discharge of the decree rendered in his favor by this Court. Thereupon the bank and M. M. Williamson, trustees, tendered their answer, and cross-bill in the nature of a bill of interpleader, setting up the fact that a number of the creditors of McGuffin-had obtained judgments and executions before the rendition of the decree by this Court in favor of Hogg, alleging that it had been
The bank in its answer admits that it has in its hands $58,141-28 collected on the Dixon notes payable to McGuffin. It was a party to Hogg’s original bill, and, therefore, knew that Hogg’s equitable claim to a part of the funds in its hands was superior to the liens upon such part, claimed by any of McGuffin’s creditors. The decree of this Court determined that fact. Hogg was not claiming the right simply to charge the fund with a debt; he was claiming the fund itself, or rather so much of it as wa.s derived from the sale by McGuffin to Dixon of fifty shares of stock in the Harvey Coal & Coke Company; and the court decreed that $16,620 of the fund belonged to Hogg, by virtue of his contract with McGuffin, giving him the right, for two years from the time he had purchased from McGuffin the fifty shares of stock in the Pike Collieries Company, to return those shares and receive from McGuffin a like number of shares in the Harvey Coal & Coke Company in lieu thereof. Hogg decided within the two years to make the exchange of stock, but McGuffin had in the meantime sold it to S. Dixon, an innocent purchaser, without notice of Hogg’s equity, and the court could not decree specific performance of McGuffin’s contract, but held that Hogg had an equitable claim to the fund derived from the sale of the stock, and could follow it up. The funds were then in the form of notes payable to McGuffin, in the hands of the bank for collection ; they had not passed into the hands of an innocent holder for value, and out of Hogg’s reach. The notes were still Mc-Guffin’s property, in the hands of the bank, at the time Hogg
But, it is insisted, the bank could not safely turn over the funds except upon order of the circuit court of Fayette county; and this for the reason in July, 1909,- that court had directed the bank to hold the fund subject to that court’s order. It appears that a number of suits were pending in the circuit court of Fay-ette county against said McGuffin; to some of which the Citizens National Bank appears to have been a party, and that on the 13th day of June, 190*9, an order was made in those causes which seem to have been heard together, directing the bank, upon payment to it of the Dixon notes, to turn over to him the stock which he had deposited as security for the payment of the notes and further directing it, as special receiver for the purpose to hold the money and not pay it out, except by order of the court. But long before that order was made, ITogg had brought- this suit in the circuit court of Mercer county, and had made the bank a party defendant. Process to answer the bill was served on it on the 21st of December, 1907. The bank was, therefore, subject to the jurisdiction of the circuit court of Mercer county long before it was appointed special receiver for the Fayette circuit court, and was bound to obey the decree of the former court. The circuit court of Fayette county could not oust the Mercer court of its jurisdiction by an order subsequently made.
Affirmed.
Dissenting Opinion
(dissenting):
I am unable to concur in the opinion prepared by Judge Wil-liaMS. The decree and mandate of this Court on the former hearing, reversing in part the decree below which dismissed plaintiffs bill, and quashed the attachment, among other things gave a money decree to plaintiff against McGuffin, for $16,620,-00, with interest and costs, and adjudged that plaintiff had the right to have said sum paid him out of the four promissory notes for $25,125.00, each, and one for $14,575.00, made by Dixon to McGuffin, and that the money called for constituted a trust fund on which plaintiff had a lien and charge to satisfy his decree, and that the appellant, the Citizens National Bank of Charleston, might collect of said notes a sufficient sum to satisfy said decree and make payment thereof to said Hogg, such collection and payment to stand as a credit to the banlc against any demand of R. M. McGuffin, and that if it should collect said notes it should pay to Iiogg his decree, interest and costs.
The bank answered that it was a simple stakeholder, and sought protection at the hands of the court. The decree below quashing the attachment was not disturbed. It was decided there was no fraud as alleged on which the attachment could stand; but that a trust on the notes and fund existed in favor of plaintiff which should be enforced in equity.
When the cause went down to the circuit court, plaintiff filed a supplemental bill, making the bank a party, alleging collection of the notes and asking for a decree against it for the money decreed against McGuffin. The bank answered, admitting collection of the notes, but showing that besides its position as trustee under the contract between McGuffin and Hogg, and Dixon, exhibited with its former answer, numerous other suits at law and in equity, had been subsequently brought, in Fay-
