Hughes & Co. v. Hamilton

19 W. Va. 366 | W. Va. | 1882

Haymond, Judge,

announced the opinion of the Court:

The jus disponendi is an incident to the ownership of the separate estate of a married woman ; and it can only be taken away or limited by express words or by an intent so clear as to be the equivalent of express words. The liability of the separate estate of a married woman to the payment of all her debts incurred during coverture is also an incident of the ownership of such separate estate; and it too can only be taken away by express words or by an intent so clear as to be the equivalent of express words. But these incidents, liability to the payment of her debts and hery'us disponendi, extend no further than to all her separate personal property and the rents and profits of her separate real estate accruing during coverture. The debts of a married woman, for which her separate estate is liable, are such as arise out. of any transaction, out of which a debt would have arisen, if she were a feme sole, except that her separate estate is not bound by a bond or covenant based on no consideration, such bond or covenant being void at law, and she not being estopped in a court of equity from showing, that it was based on no consideration. The consideration, which will support an action for her debts or contracts, so as to make her separate estate liable, need not inure to her own benefit or that of her separate estate, but it may inure to the benefit of her husband or any third party or may be a mere prejudice to the other contracting party; in short it may be any consideration, which would support the contract, if she were a feme sole. But her separate estate can not be made liable for the payment of any debt of her husband or of any other person, unless she has agreed to pay the same by some contract in writing signed by her or by some one authorized by her. Radford v. Carwile, 13 W. Va. 572, 653-659, 682, 683; Patton’s trustees et al. v. Merchants' Bank of Charleston, 12 W. Va. 587; Burnett et ux. v. Hawp’s ex’r, 25 Gratt. 481, 486; 2 Story Eq. Jur. (8th ed.) § 1,400; 1 Dan. Neg. Inst. §§ 247, 248.

In the case of Huber v. Huber’s adm’rs, 10 Ohio 371, it was held, that where money comes to a wife in right of a former husband, and the second husband borrows it of her and gives her a note for it, the note is good, and after his death she may set it up in equity against his administrators. In the case of Wood v. Warden, 20 Ohio 518, it was held as follows: “1. Where a post-nuptial agreement is made between husband and wife, by which property is set apart for her separate use, the agreement, although void in law, will be sustained in equity, unless the rights of creditors interfere. 2. A note executed by the husband to the wife acknowledging the receipt of $100.00 at her hands and promising to allow her six per cent, per annum thereon during her life, and if she survives the maker of the note, to be paid her or her heirs, extra of her third, will be construed such an agreement. 3. It is not essentially necessary that the consideration of the note should spring from the wife’s property or earnings to entitle her to come as a creditor against the estate of her deceased husband.” In the case of The Corn Exchange Insurance Company v. Babcock, 42 U. Y. 613, where a married woman having separate real estate endorses her husband’s promissory note as his surety without consideration and without benefit to her separate estate, but which endorsement expresses, that for value received she “thereby charged her individual property with the payment of this note.” Held, that an action on such endorsement, in which is alleged the coverture of the defendant the ownership by her of separate estate, her intent to charge such estate with the note, and her endorsement in the form stated, is maintainable. * * It is not necessary, to make her endorsement a charge upon her separate estate, that the contract should describe the property to be charged. It is sufficient, that it declares her intent to charge her separate estate in general terms. See also Smith v. Marsack, 60 Eng. Com. L. R. 484. With us it is not necessary that the endorsement should specially or generally charge her separate estate. See Murray v. Barlee, 3 Mylne & Keen 209; (9 Condensed Eng. Chy. R. 8.)

In the case of Radford v. Carwile, 13 W. Va., Judge Green in delivering the opinion of the Court at page 609 says. “ I submit, that the true doctrine is, that if she enters into a suretyship for a consideration, asan advance of money to her principal, it would be, were she a feme sole, her own debt, and according to the reasoning of Judge Comstock, her separate estate should be he held liable for such debt, as it would be for any of her other debts. But if she went surety for her husband or any one else by signing a note as surety for a just debt of her husband or such third person, and no new consideration existed for such debt, such as extension of the time of payment, such surety-debt could not be charged on her separate estate, simply because, if she had been a feme sole, such note could not have been enforced against her; the contract of such suretyship being in such case nudum pactum.”

In the case at bar, according to the allegations oi the bill, the notes held by the plaintiffs in their bill mentioned and described were made by the said James Hamilton to the said Susan R. Hamilton and by her endorsed and delivered to the said James Hamilton, and by him delivered-to the plaintiffs for a pre-existing debt due and owing from the said James Hamilton to the plaintiffs for and in consideration of an extension of the time of payment of said pre-existing debt to the amount of said notes, and the said James Hamilton by means of his making of said notes and the endorsement thereof by his wife, said Susan R. Hamilton for the purpose and the delivery of said notes to the plaintiffs and the acceptance thereof by the plaintiffs did obtain such extension of time of payment of said debt from the plaintiffs, which is a sufficient consideration in equity to charge the separate estate of the wife for the payment thereof according to the rules of courts of equity in such cases. I think, that by the transaction the wife, the said Susan R. Hamilton, simply made herself the security of her husband for a sufficient consideration for a pre-existing debt of her husband, and that her separate estate by her endorsement of said notes and the subsequent delivery thereof to the plaintiffs became chargeable for the payment thereof in a court of equity. The said Susan R. Hamilton being a married woman could affect or charge the corpus of her real estate by a conveyance or specific lien created by deed, in which her husband united with her, and which she executed after privy examination. Radford et al. v. Carwile et al., 13 W. Va. 572; Patton v. Merchants Bank of Charleston, 12 W. Va, 587; Weinberg v. Rempe, 15 W. Va. 829 — and this she can do whether her trustee in any way unites in the deed creating the specific lien on the separate real- estate or not, unless she is restrained by the instrument creating the separate estate from so doing by express words or by an intent so clear as to’be the equivalent of express words. Radford v. Carwile, 13 W. Va. 572; Weinburg v. Rempe, 15 W. Va. 829; Lee v. The Bank of the United States, 9 Leigh 200.

It seems to me, that it was proper to make the deeds of trust lienors and the trustees in such deeds parties defendant in this cause, as was done, especially as the deed of trust made by the said James Hamilton and Susan R., his wife, dated the 15th of November, 1875, to James P. Rogers, trustee, to secure the German Fire Insurance Company in the prompt payment of a debt of $8,500,00 due it from said James Hamilton and Susan R., his wife, evidenced by (he promissory note of said James Hamilton and Susan R., his wife, dated November 15, 1875, payable twelve months after date, with interest from date payable semi-annually in advance, negotiable and payable at the National Bank of West Virginia, at Wheeling, covered the most of said Susan R.’s personal property. The four other deeds of trust in the bill mentioned were upon the separate real estate of said Susan R. Hamilton exclusively. The plaintiffs according to the facts alleged in the bill were general creditors of the said Susan R. Their debts prior to the institution of their suit did no.t constitute a lieu or charge upon the separate estate real or personal of the said Susan. They could not by any proceeding at law or equity obtain a personal judgment or decree against the said Susan R. for their debt; but they had the privilege of proceeding in equity by bill to subject the separate personal and real property of the said Susan R. to the payment of their debt according to the rules of equity in such cases. The proceeding is to a great extent similar to a proceeding in rem, as for instance a bill in equity to subject the estate within this State of a non-resident debtor to the payment of a debt as in the case of Cirode v. Buchanan, adm’r, 22 Gratt. 205 and 10 Gratt. 204. As is said in Radford v. Carwile, 13 W. Va. 607, the creditors of a feme covert have no priority over each other, unless it be acquired by superior diligence in proceeding to obtain satisfaction. A general creditor of a married woman having no lien or charge upon her separate estate prior to the institution of his suit in equity to subject such separate estate to the payment of his debt, it is not. necessary or proper to make other general creditors parties to the bill. But other general creditors of the married woman, may each file his bill to subject the separate estate to the payment of their respective debts; and perhaps it might be proper and allowable for all the general creditors of the married woman to file their petitions in a pending cause praying, that such separate estate should also be subjected to the payment of their respective debts. But in all cases the general creditors would have priority of payment out of such separate estate between each other according to the time or times their suits are brought or petitions filed, that is to say, the general creditor, who first brought his suit would be entitled to priority of payment out of the proceeds of the sale of the personal property and the rents of the realty, and the second next, and so on, and the same as to date of filing petitions. The filing of petitions in a pending cause should however not be so indulged as to unreasonably delay the original plaintiff in obtaining a determination and satisfaction in his case.

A creditor of a feme sole by promissory note, &c., may subject the property of such feme sole to the payment of his debt; but generally he must do so by first obtaining a personal judgment against the feme sole debtor in a court of law for h;s debt; and then he may issue a fi. fa. upon his judgment, upon which her personal property is taken under such fi. fa. and sold, and the proceeds thereof are applied to the payment of the judgment-debt, but with us a judgment is by statute declared to be a lien upon the lands of the judgment-debtor; and the judgment-creditor may resort to a court of equity by bill to enforce payment of his judgment-lien against the realty of his debtor. A general creditor of a feme covert may subject the. separate estate of the feme covert to the payment of his debt; but he can not do so with us by obtaining a personal judgment in a court of law against the feme covert, but his remedy is by bill in a court of equity to subject such separate estate to the payment of his debt, not because his debt is a lien or charge upon such separate estate, any more than a debt would be against the estate of a feme sole, but because the debt is just, and it is just and equitable, that such separate estate should be subjected to the payment of the debt; and a court of equity affords the remedy and the only remedy by proceeding directly to subject such separate estate to the payment of the debt according to the rules and principles governing courts of equity.

This proceeding in equity to subject the separate estate of a feme covert to the payment of her just debts must, I think, necessarily be considered in the nature of a proceeding in rem; and there is surely little difference in its nature between such proceeding and a proceeding by bill in equity against a nonresident debtor to subject his estate in this State to the payment of a debt, when no attachment is sued out in the case. It is true, that in the proceeding in equity by a general creditor against a feme covert to subject her separate estate to the payment of his debt, a court of equity generally will not sell the corpus of her real estate to pay such debt, but will only subject the annual rents, &c. during the joint lives of herself and husband to the payment of such debt; but the court will sell the separate personal property of the feme covert and apply the proceeds to the payment of her just debt. In such proceeding perhaps all rights acquired from or under the feme covert to the separate property sought to be subjected in this suit to the payment of the debt pending the suit, are subject to any decree, which may be made in the suit, except so far as a purchaser may be protected by the 14th section of chapter 139 of the Code of this State as amended by chapter 68 of the Acts of the Legislature passed February 27, 1877. See Acts of 1877 page 93. In all other respects the maxim, Pendente lite nihil innovetur, applies. I refer again to the said case in 22 Gratt. {ubi supra) and especially the opinion of Judge Moncure, who delivered the opinion of the court. A general debt of a feme covert is no more a lien or charge upon her separate estate before suit brought to subject it to the debt, than is a general debt of a feme sole a lien or charge upon her estate or property. Tins is manifestly so from the fact, that before suit brought to subject the separate estate of a feme covert to the payment of such debt she may sell and convey her separate real estate in the manner prescribed by law and sell her personal property, and the purchaser thereof will take and hold it as his own independent of such debt, whether he had notice of the existence of the debt or not.

The foregoing views and principles are established in the case of Radford v. Garwile {ubi supra), or are deducible from said principles and necessarily follow therefrom. From what has preceded it seems to me, that the debt of a general creditor of a feme covert after suit brought by said creditor to subject such separate estate to the payment of his debt becomes a quasi lien at least upon such separate estate and for the satisfaction thereof.

It is a general principle, that if one party has a lien on or interest in two funds for a debt, and another party has a lien on or interest in one only of the funds for another debt, the latter has a right in equity to compel the former to resort to the other fund in the first instance for satisfaction, if that course is necessary for the satisfaction of the claims of both parties, whenever it will not trench upon the rights or operate to the prejudice of the party entitled to the double fund. 1 Story Eq. Juris. § 663. I think this principle may sometimes be properly applied to cases of this character as between the plaintiffs and defendant the German Fire Insurance Company especially as to the deed of trust upon real and personal property. The inferior court must be called on to say, whether in a reasonable time the rents and profits of the real estate will pay the liens charged upon it; and this discretion must first be exercised by the court below, before this court will review the decree of sale of said court; and upon such review this Court will not reverse it, unless it appeal's, that the court erred in the exercise of that discretion. Rose & Co. et al. v. Brown et ux., 11 W. Va. 122 and 143. If the principle as to the court renting out realty to pay lien-debts under any circumstances could be applied to deeds of trust debts, which I deem unnecessary to pass upon in this case, the court below not being asked to rent the property, it is sufficient to say, that the decree of sale was made upon bill taken tor confessed, and it does not appear, that said Susan R. Hamilton or any other person claimed, that the rents and profits of said real estate would pay the lien-debts in a reasonable time or asked the court to rent out such realty to pay said lien-debts, before the said realty was decreed to be sold; nor indeed until after it was sold by the commissioners. If it was believed by said Susan R. Hamilton, that said realty would rent for a sufficient annual rent to pay said lien-debts, and she desired that it should be rented by the court for that purpose and was advised, that the court had the right to do so, she should have answered the bill in proper time and prayed accordingly or the like, so that the court could have considered the subject and had enquiry made as to that matter before decree of sale, if it was deemed right and proper so to do.

The 8th section of chapter 132 of the Code of this State p. 630 provides, that “if a sale of property be made under a decree or order of a court, and such sale be confirmed, though such decree or order be afterwards reversed or set aside, the title of the purchaser at such sale shall not be affected thereby ; but there may be^ restitution of the proceeds of sale to those entitled.” A debtor cannot have a decree reversed confirming a sale of real estate for an error in the decree ordering the sale, when he has not taken the proper steps in the court below before the confirmation to review said decree of sale, except perhaps in some cases where the purchaser is a party to the suit. Hannah R. Beard v. M. Arbuelde el al supra. It is not pretended in this case, that the court below did not have jurisdiction of the parties and subject-matter of thi^suit; and if it was, such pretentions could not be sustained.

The first four exceptions to the report of sale of the realty are because of alleged errors merely in the said decree of sale of the 27th of August, 1877. Rorer in his work’on Judicial Sales at § 182, p. 63 says: “The title acquired at a decretal sale of lands made by a court in the exercise of competent jurisdiction is not rendered invalid by the reversal of the decree for a mere irregularity or error. This too, although the purchaser was a party to the suit, in which the decree was made. Nor if notice be given to the purchaser at the time of the sale and before he purchased, that an effort would be made to reverse the decree, &c. In the case of Gray v. Brignardello and Brignardello v. Gray, 1 Wall. 627, Judge Davis in delivering the opinion of the Court at page 634 says : “Numerous objections have been taken, and were taken in the court below, to the validity of the proceedings prior to the rendition of the decree, which although interesting will not be discussed, and no opinion given, as it is not necessary to decide them. It is a well settled principle of law, that the decree or judgment of a court, which has jurisdiction of the person and subject-matter, is binding until reversed, and cannot be collaterally attacked. The court may have mistaken the lawor misjudged the facts, but its adjudication when made concludes all the world until set aside by the proper appellate tribunal. And although the judgment or decree may be reversed, yet all rights acquired at a judicial sale, while the decree or judgment was in full force, and which they authorized, will be protected. It is sufficient for the buyer to know, that the court had jurisdiction and exercised it, and that the order, on the faith of which he purchased, was made and authorized the sale. With the errors of the court he had no concern. These principles have so often received the sanction of this Conrt, that it would not have been deemed necessary again to reaffirm them, had not the extent of the doctrine been questioned at the bar.” See on this subject the case of Irwin v. Jeffers et at., 3 Ohio St. 389. Rorer on Judicial Sales at § 576 says: Where the sale is to a third person and bona fide purchaser, and has been fully completed by confirmation, conveyance and payment, it will neither be avoided nor will it be set aside by reason of a subsequent reversal of the decree. This rule is so generally recognized as to scarcely require au-thorites to support it. In the language of the Illinois Supreme Court: ‘If the court has° jurisdiction to render the judgment or to pronounce the decree, that is, if it has jurisdiction over the parties and the subject-matter, then upon principles of universal law acts performed and rights acquired by third persons under the authority of the judgment or decree, and while it remains in force, must be sustained notwithstanding a subsequent reversal.’ ”

It seems to me upon authority as well as principle, that the court below did not err in overruling the first four exceptions to said report of sale of the said real estate.

The fifth exception to said report of sale, I think, was also correctly overruled. The answer of the defendant, Susan R. Hamilton, was filed, after the sale was made, and at the same time the report of sale was filed, and no good reason or excuse is given or pretended in the answer for not answering or defending sooner. Parties, who have suits in court, must be reasonably diligent or otherwise expect to suffer more or less by their laches and negligence.

The difficulty raised by the sixth exception was removed before the exception was overruled.

The seventh exception does not touch the realty but I think it was not well founded.

But it is argued, that -it was error in the court to confirm said sale, because the real estate sold for greatly less than its value. It is proper to observe, that there was no exception filed to said report of sale, because the realty sold for an inadequate price. If such an exception had been filed, it would have called the attention of the court to the fact, and the purchaser, &c., would thereby have had notice, that the confirmation of the sale was objected to on that ground, and might have filed affidavits showing, that the property had sold for a fair price. The real property appears to have been sold by the commissioners to Cha'rles W. Franzheim for the price of $20,000.00, which was paid by him in cash on the day of sale to the commissioners, as fully appears, he having elected to pay the whole purchase-money in cash down, as he had a right to do under the decree of sale. It does not appear by the record, that Franzheim was a party to this suit. He seems, so far as appears, to be a stranger to the cause, except so far as he became connected with it as a simple purchaser of the realty. In sales made by commissioners under decrees, and orders of a court of equity the purchasers, who have bid off the property and paid their deposits in good faith, are considered as having inchoate rights, which entitle them to a hearing upon the question, whether the sale shall be set aside. And if the court errs by setting aside the sale improperly, they have the right to carry the question by appeal to a higher tribunal. Kable v. Mitchell et als., 9 W. Va. 492. In the case at bar it does not appear, that after the sale any person offered to the court or otherwise to give a greater price for the realty than the 120,000.00. The court may in the exercise of a sound discretion either affirm or set aside the sale, where from the facts, evidence and circumstances before it it appears clearly, that the sale was made at a greatly inadequate price ; and the court may solve the question upon affidavits or depositions in connection with the fact, that a greatly larger price is offered to the court for the land and secured or offered to be secured ; or it may set the sale aside upon any evidence or fact or facts before it, which clearly shows, that the land sold at a greatly inadequate price. Kable v. Mitchell, 9 W. Va. 492. The discretion, which the court may exercise in such cases, will not authorize it to set aside the sale without sufficient cause, and a greatly inadequate price is among other things a sufficient cause.

It is true, that upon another branch of the cause, that is, upon the appointment of a receiver prior to the court acting upon the report of sale, simple certificates and affidavits of persons were filed pro and con. as to the value of said realty-These certificates and affidavits were greatly in conflict as to the value of said realty — some of them placing the value of said realty at over $20,000.00, and some at less; and if there had even been an exception filed to said report of sale for inadequacy of price, I should not feel authorized to say,’ that it clearly appeared, that said realty had sold for a greatly inadequate price. Courts should be careful in setting aside the sale of realty made by their commissioners for mere inadequacy of price upon the simple opinions of men given in the shape of affidavits, especially where these opinions are materially in conflict. I think upon principal and authority, that the court below did not err in confirming the sale of said realty.

The proceeds of sale of the realty have gone where, so far as I can see, they ought to have gone. But in addition to all this Franzheim, the purchaser, is not a party to this appeal, and has not appeared by counsel before this court. The sale was confirmed on the 4th day of December, 1877, and this appeal was not granted until April 27, 1878, and took effect a short time thereafter. The decree confirming the sale directs the commissioners, who made the sale, to make to the said purchaser a deed of special warranty for said realty, and the decree was not stayed or asked to be stayed for purpose of appeal or otherwise. See on this subject Londons v. Echols et als. 17 Gratt. 15, 19, 20.

Commissioner Barr erred by the face of his report in reporting the claim in favor of the German Fire Insurance Company for $778.19 for insurance against the defendant, Susan R. Hamilton, as being a lien or charge on the separate real and personal estate of the said Susan R. Hamilton, and also the same as to the claim of Agnes Hamilton for $900.00 with interest &c. against the said Susan R. Hamilton. Neither of these two claims or debts so reported were specific liens or charges against the separate estate of the said Susan R. Hamilton. The most that can be said of these two debts or claims is, that they were simply general debts of the said Susan R. Hamilton, and no suit had been commenced or petition filed in this cause to subject the separate estate of said Susan R. to the payment thereof. For the same reason the court below in its decree of sale of the 27th day of August, 1877, erred in ascertaining and declaring, that the same two last named claims or debts were liens or charges against the separate real and personal estate of said Susan R. Hamilton. Neither of the deed of trust debts, which it ascertained and declared to be liens on the separate real estate of the said Susan R. Hamilton, was a lien upon the personal property in the Opera House, exclusive of the bar-room furniture except the debt of $8,500.00 with interest secured by the deed of trust made by James Hamilton and the said Susan R. his wife on the 15th day of November, 1875, to James P. Rogers trustee. This deed of trust conveys said last mentioned personal property to said Rogers as trustee together with the said realty to secure the last named debt with its interest. Neither of the other deeds of trust convey this or any other of the personal property of the said Susan R. Hamilton to secure any of the several debts therein mentioned. The said deed of trust debt of $8,500.00 with interest did constitute a lien on the last mentioned personal property of the Said Susan R. Hamilton first in priority ; and the plaintiffs’ debt a lien second in priority. Neither of the said deed of trust debts constituted liens or charges upon the personal property of the said Susan R. Hamilton in the bar-room in said Opera House or on the personal property of said Susan R. in the dwelling-house on Sixteenth street in said city of Wheeling, in which the said Susan R. resided. None of the debts in said report or last named decree mentioned were liens or charges' upon the last named sep-parate personal estate of the said Susan R. Hamilton except the plaintiffs’ debt; none of the other of said creditors except, the plaintiffs having commenced suit or filed petitions to subject the separate estate of the said Susan R. Hamilton to the payment of their debts, and none of them constituting liens or charges upon the last named separate personal property of the said Susan R. Hamilton.

I am of opinion also, that it would have been most proper for the court below to have ordered the last named separate personal property of the said Susan R. Hamilton to be sold by the commissioners before the said separate real estate of the said Susan R. Hamilton and her said other separate personal property, for the reason that it might have sold for sufficient in amount to pay the plaintiff’s debt and the costs of this suit, and thereby avoided in that event the necessity of selling the other separate real and personal property of the said Susan R. Hamilton in this suit, and especially so if her other creditors, who were parties having specific liens thereon, did not desire the enforcement of their specific liens in this cause. But it would seem from the proceedings in this cause, that the said specific lien creditors did desire, that the separate real and personal estate of the said Susan R., upon which they had specific liens, should be sold in this cause for the payment of their said lien-debts. As the real and personal property, upon which the said German Fire Insurance Company of Wheeling and Robinson had specific liens, has been applied to the specific lien-debts of said German Fire Insur-anee Company, where it should have gone, and still leaves a balance yet due and unpaid of the said German Fire Insurance Company debt and the Robinson debt not reached, I deem it unnecessary to say further on this subject.

I think the judge of the eourt below erred in his vacation-order and decree of the 15th day of October, 1877, in not reversing so much of the said decree of the 27th of August, 1877, as is in conflict with the errors therein hereinbefore pointed out and in not conforming said last named decree to the views expressed touching said errors. But the errors contained in the decree of sale of the 27th day of August, 1877, are not so fundamental in their character, as to authorize us because of such errors to reverse the decree of the court below rendered on the 4th day of December, 1877, confirming the sale of said realty to Charles W. Franzheim, the purchaser, and directing the commissioners, who made the sale, to convey the same to such purchaser by deed of special warranty in the face of our statute, to which I have referred, and of the rules and principles governing courts of equity in such cases with or without such statute. As we have seen, the court below had jurisdiction of the parties and of the subject-matter of the suit, and the decree of sale though erroneous in the respects, which I have indicated, was not void because of such errors. The decree of sale was valid and binding until superseded or set aside, reversed and annulled in whole or in part by a court having jurisdiction and authority so to do because of such errors. At the time, when all the rules in this case were made by the commissioners, and at the time of the confirmation thereof by the court below the said decree of sale, under which the said real and personal property was sold, had not been superseded, set aside, reversed or annulled. In fact the appellants did not apply for and perfect this appeal, until some time after the said decree confirming said sales was rendered. If the appellant had desired to prevent a sale of her said real and personal property by reason of the errors in said decree of sale, she should not only have obtained from this court under the circumstances an appeal and supersedeas to said decree, but should have perfected the same, before the sale was made, or at farthest perhaps before the sale was CQnfiprp.ed by the court below. But this, as we have seen, she failed and neglected to do; and under these circumstances it is now beyond the power of this court under the law to set aside said sales because merely of said errors in said decree of sale.

I see no error in the decree of the court below rendered on the 26th day of December, 1877, approving the report of receiver T. W. Bliss and directing the sum of $411.02, the amount or rent remaining in his hands, to be paid to the defendant, The German Fire Insurance Company. The appointment of a receiver does not involve the determination of any right or affect the title of either party in any manner whatever ; but still an application for such appointment can only be made by those, who have an acknowledged interest, or where there is strong reason to believe, that the party asking for a receiver will recover. A manifest abuse of trust by an habitual and prospective course of dealing bringing the property into danger has been held to afford sufficient ground for the appointment of a receiver; but in no case has there been the least hesitation in making such appointment, where the party in the actual receipt of the rents and profits was shown to be insolvent. Hannah K. Chase’s Case, 1 Bland Chy. (Md.) 206, 213. A receiver is appointed for the benefit of the interested party, who makes the application, and for any others, who may choose to avail themselves of it, and who may have an interest in the property proposed to be put into the hands of a receiver. The immediate moving cause of the appointment is the preservation of the subject of litigation or the rents and profits of it from waste, loss or destruction, so that there may be some harvest, some fruits to gather after the labors of the controversy are over. 1 Bland, Chy. 213. See on the subject of rents and profits as to mortgages Babcock v. Kennedy, 1 Vt. 457, 18 Am. Dec. 695; 1 Lom. Dig, (2d Ed.) 434; 4 Kent’s Com. 165.

I see no error prejudicial to the appellant in the decree of the court below of the 21st day of February, 1878, (stated in the body of the decree to have been rendered on the 20th day of February, 1878) by which the said court directed the commissioners, who made the sales, after the payment out of the proceeds arising from the sale of the real estate in this cause of the costs, expenses and commissions of sale, as theretofore ordered, and of $5.00 fee for drawing a deed to the pur_ chaser, and of $51.52 of the costs of the cause up to the 4th day of December, 1877, to be taxed by the clerk, to pay the residue of said proceeds of sale of the real estate to the said German Fire Insurance Company, of Wheeling, on account of its liens against said real estate. For reasons hereinbefore stated the court below erred in its decree of the 27th day of February, 1878, in so far as it directed said commissioners of sale to pay the proceeds of the sale of the said house-hold furniture sold by them ratably to Agnes Hamilton and complainants on their respective claims, and to said German Fire Insurance Company of Wheeling, on its claim named as the fifth lien in the decree of August 27, 1877. Said last named proceeds should have been directed to be paid to the plaintiffs on their said debt and interest as far as necessary.

The court below in the last part of its decree of the 4th day of March, 1878, erred in so far, as it directed the said commissioners of sale to pay the residue of the funds arising from the sale of said house-hold furniture and bar-room furniture, fixtures and appliances (after paying out of the funds arising from the sale of the last named property the sum, which was theretofore decreed to be paid out of the same, together with two thirds of such costs of this suit, as had not before the date of said decree been decreed to be paid) ratably to complainants and to Agnes Hamilton on their respective claims and to the defendant, The German Fire Insurance Company, of Wheeling, West Virginia, on its claim named as the fifth lien as aforasaid. Such residue of said funds after the payment of the two thirds of the costs of this suit in the court below should have been directed by the said court to be paid on the plaintiffs’ said claim so far as necessary for its payment exclusively, for reasons hereinbefore stated.

For the foregoing reasons the court below in its decree rendered in this cause on the 27th day of August, 1877, erred in so far as it ascertained and decreed, that the claim of the defendant, the German Fire Insurance Company for $778.19 with interest on $753.68 parcel thereof from the 14th day of April, 1877, till paid, in the report of Commissioner Barr mentioned, was a lien or charge upon either the separate real or personal estate of the defendant, Susan It. Hamilton, and the same as to the claim of Agnes Hamilton for $900.00 with interest from the 10th day of July, 1876, till paid in the report of said commissioner mentioned; and also erred in said decree in so far, as it ascertained or decreed in said decree, that said last named claims or either of them were entitled to or should be paid in whole or in part out of the proceeds of said separate real or personal estate of said Susan R. Hamilton ; and also erred in said decree in so far, as it confirmed the report of said commissioner Barr as to said two last named claims. It is therefore adjudged, ordered and decreed, that the said decree of the 27th day of August, 1877, in so far as it ascertains or decrees in the particulars last aforesaid, be reversed, set aside and annulled. And it is further adjudged, ordered and decreed, that the residue of said last named decree not hereinbefore reversed, set aside and annulled be affirmed, except in so far as any part of such residue is consistent with and not repugnant to the parts thereof, which are hereinbefore versed, set aside and annulled.

There is also error in the vacation-decree of the said municipal court of Wheeling rendered on the 15th day of October, 1877, in amending the said decree of the 27th day of August, 1877, so as to ascertain and decree, that the amount of $778.19 in favor of the said German Fire Insurance Company in said last named decree mentioned is a charge on the estate in the seventh Class, as set forth in said last named decree, “ and to be charged upon the said estate real and personal and paid ra-tably with the claims and charges of said complainants and Agnes HamiltonIt is therefore adjudged, ordered and decreed, that the part of said decree of the said 15th day of October, 1877, which ascertains and decrees as last aforesaid, be reversed and annulled.

There is no error in the decree of the 4th day of December, 1877, rendered by the said municipal court of Wheelingt for which it should now be reversed, it is therefore adjudged, ordered and decreed, that the last named decree be affirmed.

There is no error in the decree of said municipal court of Wheeling rendered on the 21st day of February, 1878, (called in the body of the decree the 20th day of February, 1878). It is therefore adjudged, ordered and decreed, that the said last named decree be affirmed.

There is error in the decree of the said municipal court of Wheeling rendered on the 27th day of February, 1878, in so far only, as it directs the said commissioners, who made the sale of the household-furniture sold by them, to pay the proceeds of the sale of the same ratably to Agnes Hamilton and complainants on their respective claims, and to said German Fire Insurance Company of Wheeling on its claim named as the fifth lien in the decree of August 27, 1877. It is therefore adjudged, ordered and decreed, that the said last named decree, in so far as it directs the said commissioners, who made sale, to pay the proceeds of said sale as aforesaid, be reversed, set aside and annulled.

There is also error in the last part of the decree of the court below of the 4th day of March 1878 in so far, as it directs the said commissioners of sale to pay the residue of the funds arising from the sale of the said household-furniture and barroom furniture, fixtures and appliances (after paying out of the funds arising from the sale of the last named property the sum which was theretofore decreed to be paid out of the same, together with two-thirds of such costs of this suit, as had not before the date of said decree been declared to be paid) rata-bly to complainants and to Agnes Hamilton on their respective claims and to the defendant, the German Fire Insurance Company of Wheeling, on its claim named as the fifth lien as aforesaid. It is therefore adjudged, ordered and decreed,that said last part of said last named decree, so directing the said commissioners of sale to so pay the said residue of said last named funds as aforesaid, be reversed, set aside and annulled. And it is further adjudged, ordered and decreed, that the residue of said last named decree be affirmed. And it is further adjudged, ordered and decreed, that the appellees, the German Fire Insurance Company of Wheeling and Agnes Hamilton, do pay to the appellant, Susan R. Hamilton, her costs about the prosecution of her appeal in this court expended. And this court proceeding to render such decree, as the said municipal court of Wheeling should have rendered, it is adjudged, ordered and decreed, that the said claim of the German Fire Insurance Company against the defendant Susan R. Hamilton for $778.19 with interest on $753.68, parcel thereof, from the 14th day of April, 1877, and the said claim of Agnes Hamilton against the said Susan R. Hamilton for $900.00 with interest in the report of commissioner Barr and in the said decree of the 27th day of August, 1877, mentioned are not liens or charges in this suit against either the separate real or personal estate of the said Susan R. Hamilton in the bill and proceedings in this cause mentioned. It is further adjudged, ordered and decred that neither of the deed of trust debts in the bill and proceedings mentioned constituted liens or charges in this suit upon the separate personal estate of the said Susan R. Hamilton mentioned and conveyed to James P. Rogers as trustee in the deed of trust executed by the defendants, James Hamilton and Susan R. his wife, on the 15th day of November, 1875, to secure the payment of a debt of $8,-500.00 with interest thereon from the date last aforesaid, therein mentioned, except the last named deed of trust, and said last named deed of trust debt constituted a lien on said last mentioned personal property and its proceeds first in priority, and neither of said deed of trust debts constituted a lien in this suit upon any of the separate personal estate not coveerd or embraced by the said deed of trust, dated the 15th day of November, 1875. It is further adjudged, ordered and decreed that the proceeds of the sale of the personal property of the said Susan R. Hamilton not covered or embraced by the said deed of trust of the 15th day of November, 1875, and mentioned in the report of Commissioner Barr and in the decree of the 27th day of August, 1877, and sold by said Commissioners of sale under the last named decree after deducting the expenses of the sale thereof including commissions heretofore allowed, should be applied first to the payment of the plaintiff’s costs in this suit not heretofore provided for, and second, to the payment of the plaintiffs debt and interest thereon as ascertained and fixed by said decree of the 27th day of August, 1877, and third, the residue, if any, after making such payment should be paid to said Susan R. Hamilton. And it is further adjudged, ordered and decreed, that this cause be remanded to the said municipal court of Wheeling for such further proceedings therein to be had, as may be in accordance with the principies settled in this opinion, and further according to the principles and rules governing courts of equity.

Judges Green AND Johnson Concurred.

Decrees Confirmed m Part and Reversed IN Part.

Cause Remanded.