30 W. Va. 204 | W. Va. | 1887
In 1881 R E. Hudkins and D. 0. Hudkins obtained from the judge of the Circuit Court of Barbour county an injunction restraining the collection of a judgment. By the bill it appears, that Simon W ard, who sued for the use of Grim and Woodford, recovered on the 28th day of October, 1881, in the Circuit Court of said county against the said Hudkins &Bro. ajudgment for $1,575.31 and costs: that long before that time said Ward was indebted to said Hudkins and Brother in the sum of $1,055.00, for which he had executed his neto dated the 14th day of January, 1881; that this note was executed to R. E. Hudkins alone, but in fact the debt was due to the plaintiffs jointly. The plaintiffs say, that they did not attempt to set-off said note in the action at law, because it was not then due. The bill further charges, that Ward is insolvent and has left the State of West Virginia. The bill tenders the residue of the money due on the said judgment after applying the $1,055.00 as a set-off against it and prays, that said set-off may be made, and for an injunction against said judgment and for general relief.
J. N. B. Orim and A. M. Woodford filed their joint answer to the bill averring the recovery of the judgment in the name of Ward lor their use and admitting the insolvency of the defendant, and that he had left the State, but denying that the $1,055.00 was due to the plaintiffs jointly. They also aver, that on the 3rd of March, 1881, the said Ward executed a deed to Luther C. Elliot, trustee, conveying 750 acres of valuable land worth $18,000.00 or $20,000.00 to secure to R E. Hudkins the payment of the $1,055,00, which he desires set
The deposition of R. E. Hudldns was taken, in which he proves, that, although the $1,055.00 note was executed to him alone, yet the debt was due to his brother and himself jointly. There was a general replication• to the answer of the defendants; and no depositions were taken for the defendants.
On the 23rd day of July, 1885, the case was heard, and the court permitted the.set-off to be made, and, as the residue had been i>aid to the defendants, Woodford and Crim, perpetually enjoined the judgment and decreed costs against the defendants but did not subrogate the said defendants to the rights of the plaintiffs in the deed of trust. From this decree Grim aud Woodford appealed.
The aim of a court, of equity as regards the payment of debts is equality — that the assets shall be so distributed as to satisfy all the creditors; and a creditor will not be allowed
In Cralle v. Meene, 8 Graft. 496, the testator had given a. bond to indemnify an endorser, and the holder of the note was allowed to stand in the place of the endorser and be paid, as a creditor by specialty out of the real assets, although the endorser had not been compelled to pay the note.
See also Steamboat Co. v. New Jersey Co., 1. Hopk. Ch’y 460, Hawley v. Mancius, 7 Johns. 174, Goertson v. Booth, 19 Johns. 485, Ramsey's Appeal, 2 Watts 228.
In Brinkerhof v. Marvin, 5 Johns. Ch’y 321, the bill stated that in July, 1819, J. and Z. Taylor of Saratoga being largely indebted to the plaintiff for goods sold to them, executed a bond to the plaintiff for the amount due with warrant of attorney to confess judgment thereon ; that judgment was entered up in the Supreme Court on the bond the 27th of November, 1819; that on the 3d of January, 1820, the defendants, W. J. and A. Marvin, entered up a judgment against J. Taylor by confession on filing special bail without a writ or declaration or a cognovit actionem for $5,755.60 collateral security for endorsements then made and thereafter to be made for J. and Z. T. and for money then due or there
The Chancellor said: “ The defendants in their answer offer to give the plaintiffs entire substitution, which would apply as well to that bond and mortgage as to the judgment. This is all that the plaintiffs can reasonably ask for; and it would not be equitable to detain the defendants from their remedy under the judgment, until they had engaged in and concluded a litigation as to a iDersonal security of such doubtful rights and uncertain results. The defendants have therefore shown thenselves to be creditors of J. and Z. T. with equal equity to the plaintiffs; and they have a legal preference by the decision of the Supreme Court, of which they ought not and can not upon safe and sound principles be deprived by this Court. I shall accordingly grant the motion to dissolve the in
In Harrison v. Skillman, 33 Barb. 378, it was decided, that the general principle is, that, when a creditor has a lien on two funds for the same debt, and another creditor has a subsequent lien on one of the funds only, equity will require the former to resort in the first instance to the fund, upon which the subsequent creditor has no lien, for the satisfaction of his debt. The rule however is subject to some qualifications. Such a course must appear to- be necessary for the payment and satisfaction of both debts, and it must not operate to prejudice the rights of the first creditor to the double fund. Neither must there be any reasonable doubt of the sufficiency of the one fund to satisfy the debt of the first creditor. When in a foreclosure suit brought by the holder of the first lien there is reason to think, that both the real estate mortgaged and certain personal securities, which are subject to the plaintiff’s lien, would, if brought to sale, be insufficient to pay the debt and interest due from the mortgagor, the equitable rule does not apply in favor of subsequent mortgagees or judgment-creditors. In such circumstances all that the subsequentincumbrancershavea right to claim, is a judgment awarding to them after the payment of the plaintiff’s debt the right in the order of the priority of their respective liens to be subrogated to the plaintiff in respect to the securities then held by him.
In Woodcock v. Hart, 1 Paige 185, the plaintiff was a judgment and execution creditor of James Dreamer. The defendant had also an older judgment and execution against the same person, and Dreamer had not sufficient property in the State to satisfy both. The defendant had also an ' assignment of certain real and personal property in New Jersey as collateral security for his debt, which, in his answer he alleged, was subject to a prior mortgage, and that the title thereto was doubtful. The complainant applied to him to delay a sale under the execution and apply the Jersey security in
In this case it appears, that on the 14th day of January, 1881, Simon Ward was indebted to K. E. Hudldns & Bro. in the sum of $1,055.00; that on the 3rd day of March, 1881, he executed a deed of trust on a large tract of land to secure said debt, which deed was recorded on the 5th day of March, 1881. On the 28th day of March, 1881, Simon Ward for the use of Crira and Woodford recovered a judgment against TIudkins and Bro. for $1,575.31. The said Orim & Woodford proceeded in the name of Ward to collect the amount of this judgment by execution. On the 4th of November, 1884, the injunction was granted. The defendants resisted the set-off and asked, that, if it was allowed, they might be subrogated to the rights of the plaintiffs in the deed of trust. The court allowed the set-off but said nothing as to the subrogation. The question as to the defendant’s right to subrogation was clearly in issue, and it was silently denied to them. Was
The decree of the Circuit Court is reversed with costs against Hudkins & Bro. and this Court proceeding to render such decree as the Circuit Court should have rendered, the same decree is entered with this important addition thereto: “But the defendants, J. N. B. Grim and A. M. Woodford, are hereby subrogated to all the rights and interest of R. E. Hud-kins and R. E. Hudkins & Brother in and to the deed of trust executed on the 3rd day of March, 1881, bj^ Simon Ward to Luther O. Elliott, trustee, to secure R. E. Hudkins the sum of ten hundred and fifty-five dollars, due by single bill of date January 14,1881, with interest thereon from the date thereon, which deed was recorded in the county of Barbour on the 5th day of March, 1881, a copy of which is filed as an exhibit with the answer of the defendants in this cause.”
As to the reversal of the decree with costs my associates do not agree with me, that it sufficiently appears, that the error was to the prejudice of the appellants, and that they suffered more than $100.00 damages, notwithstanding the fact, that it is admitted, that Ward is insolvent, and it does
DECREE CORRECTED AND AEEIRMED.