45 W. Va. 584 | W. Va. | 1898
In the case of Josie M. Hurxthal,administratrix, against Christine H. Hurxthal, on appeal from the circuit court of Greenbrier County, two questions are presented, to this Court:
1. Whether the following pro vision'in a deed duly recorded creates a lien on the property involved, in favor of the St. Lawrence Boom & Manufacturing Company, to-wit: “That the said party of the second part agrees to pay to said party of the first part the sum of seventy-five dollars per annum, to be paid on the first day of January in each year ; and the obligation to pay fhe same shall, in addition to being a personal one, be a covenant running" with the land, and binding upon said Ronceverte Flour Mills, mill race, and water power, into whosoever hands they may pass?” This question is fully met and determined in favor of the lien in the case of Parsons v. Association, 44 W. Va. 335, (29 S. E. 999). The appellant’s claim for this charge at the date of the allowance thereof, to-wit: November 1, 1897, amounting to the sum of three hundred and twenty-four dollars and seventy-five cents, should have been decreed as a lien fourth in priority on said property.
2. Whether the court erred in holding that Nelson White, appellee, by virtue of a deed of trust executed thereon prior to its being fixed in the mill in controversy, held a lien on the machinery prior in right to the lien of the appellant Bryanna Hurxthal, secured to her by a prior deed of trust on the mill property? The authorities on this subject widely differ. The true equitable rule is stated in the case of Binkley v. Forkner, 117 Ind. 176, (19 N. E. 753), to-wit: “A chattel mortgage is effectual to preserve the character of the mortgaged chattels, as against a mortgage on the realty executed prior thereto, if the chattels can be re
The decree complained of will be reversed in so far as it fails to allowthe St. Lawrence Boom & Manufacturing Company its lien for the sum of three hundred and twenty-four dollars and seventy-five cents, fourth in priority on said mill property, and amended so as to direct the special commissioners, in making sale of such mill property, to offer the same as a whole, and also the mill and machinery separately, and to sell the same in whichever way it will bring the largest sum ; and in all other respects it is affirmed, and the cause is remanded for further proceedings. Bryanna Hurxthal, not having asked for the sale of the property as a whole in the circuit court, hut asking it for the first time in this Court, will pay the costs of this appeal.
Reversed in Part and Modified.