22 W. Va. 159 | W. Va. | 1883
J. C. Hutton, A. C. Liggett, Amos Barlow, and Amos Barlow, Henry Barlow and George P. Moore, partners in business under the firm of “Barlow & Moore,” plaintiffs, in September, 1877, filed their bill, and subsequently two amended bills in the circuit court of Pocahontas county, against James T. Lockridge, Lanty Lockridge, and a large number of other defendants, alleging in substance that they were judgment and trust-creditors of said James T. Lockridge and Lanty Lockridge, for large amounts, which are set forth in these said bills and exhibits and that many of the other defendants were also judgment and trust-creditors of said James T. Lockridge, many of whose debts are set forth in full, others simply by reference to what appeared to be unsatisfied judgments against him, and alleging that all of said debts wore liens upon the lands owned by said James T. Lockridge and praying for a sale of said lauds to satisfy said liens and for general relief. As to many of the debts, which were established in the progress of the cause, the character, amounts and priorities thereof only appear in the reports of the commissioner made therein. The description of the lands sought to be charged with said debts, and sold to satisfy the same, is still more meager, — the only allegation in the original bill being “that the defendant, James T. Lockridge, is the owner of a tract of four hundred and twenty acres of land, and several other tracts of land, all of which are described in deeds and certificates of survey, duly attested copies of which are herewith exhibited marked ‘C,’” which as found in the printed record, is only the copy of a deed from A. S. Bradshaw to said Lockridge for fifteen acres. The first amended bill, which was filed at April rules,, 1878, alleges that Lanty Lockridge, sr., by deed dated January 24-, 1857, and April 3, 1858,'conveyed to James T. Lock-ridge a tract of land on Elk river in Pocahontas county containing about one thousand acres, and reserved a lien thereon for one thousand dollars in favor of the children of said James T. Lockridge by his wife then living, and payable at the time of his death; that James T. Lockridge had conveyed all of said “Elk” land as follows: the first parcel to one Win. J. McLaughlin; afterwards, a second parcel to one Isaac
None of the defendants appeared to the original bill, and on the 3d day of October, 1877, the cause was referred to Commissioner Warwick, “to state first, an account of the judgment, and all other liens against the real estate of the defendant James T. Lockridge, and their several priorities, and, second, the various tracts of land of \Vhieh said Lock-ridge was seized, together with any other pertinent matters, &c.” Under this order, said commissioner returned a report,
The defendants T. L. Campbell and J. N. Campbell, assignees of the defendant Thomas Campbell, of the judgment recovered by the latter against said Lockridge for one thousand three hundred and fifty-four dollars and twenty-one cents, with interest and costs, confessed on the 11th of November, 1870, also excejDted to so much of said report as allows to the said Lockridge a credit thereon of two hundred and six dollars and sixty-nine cents paid upon the order of Thomas Campbell to A. W. Eider on the 16th of June, 1871 — “ for want of sufficient proof of the order, or of its payment or its application to said judgment, and because said order was given' after the assignment of said judgment, and after notice thereof and because said Lockridge then was, and still is, indebted to said Thomas Campbell on other accounts in excess of said order.” Neither the order, nor the proof offered in support thereof, or of the payment of the money specified therein — nor in fact any evidence in support of any credit, upon any of the debts mentioned in said report, appears in this record. A.s this same credit of two hundred and six dollars and sixty-nine cents is carried into Commissioner Warwick’s report No. 2, hereinafter mentioned, and the court with the order itself and all evidence in support thereof before it allowed said credit, by confirming said “report No. 2,” in all respects, this Court in the absence of all such evidence will not;, say that the circuit court erred in doing so, but will hold that the exception, under such circumstances was properly overruled, and the same also is true, in regard to the exception of the defendant D. W. Gibson
The defendant, James T. Lockridge, also filed exceptions to said report for certain reasons, which will be considered hereafter, as the same are in substance renewed in the second report of said commissioner. At the October term, 1878, of said court the defendants, Preston W. Bennett and James T. Lockridge, filed separate answers to the bill and amended bills to which the plaintiffs replied generally. It is unnecessary to notice the answer of Bennett as he only claimed the benefit of the judgment reported in his favor, about which there is no controversy.
The answer of Lockridge admits that he is largely indebted to many of the persons named in the original bill; that the indebtedness therein stated is in the main correct; that he has not been able to procure and produce before the commissioner all the papers and other evidence necessary and material for a full defence; avers that he is only the surety in a large judgment of over two thousand dollars recovered against him by the defendant, William Skeen, executor of Henry M. Moffett, deceased, against himself and and the defendant, George B. Moffett; that the lands of George B. Moffett should be first sold, and that suit for that purpose has been brought, and is still pending in the circuit court of Monroe county, and that the said lands have been sold, and a considerable amount of money has been realized therefrom which ought to be applied in payment of said judgment. He further avers, that upon the debt upon which the large judgment mentioned in the bill was confessed to said Skeen, as the administrator of Lanty Bock-ridge, sr., deceased, for one thousand four hundred and ten dollars and seventy-five cents, by himself and the defendant, Lanty Lockridge, on the 21st of December, 1875, he was entitled to a credit of five hundred dollars paid many years before the death of said testator, who was his father, by his order and direction to William H. Terrell, to whom his father was then indebted in that amount, and that when he confessed said judgment “he was unable to find any witness to these facts although he used every exertion to do so.” He further avers in substance, that Thomas Campbell assigned the
By his said answer, the defendant James T. Lockridge, further avers that the decree obtained against him and the defendant Eleanor Slavens by S. L. Gibson administrator of Jacob Slavens, deceased, for one thousand seven hundred and fifty-six dollars and twenty-seven cents with interest from October 6, 1875, has been partly paid by said Eleanor, and the residue released by the children and distributees of said Jacob Slavens; he further claims that the judgment of I). W. Gibson against him for one hundred and six dollars and fifty-eight cents was attached in his hands and paid over in discharge of the indebtedness of said Gibson to.one John J. Gay. He further insists that the said deed of trust executed to the said Curry, trustee, upon the four hundred and twenty acres of land is only an indemnity to Isaac Moore against the lien of one thousand dollars reserved upon said “Elk” land upon the happening of the contingency mentioned therein, and that all of his said alienees of said “Elk” land must bear ratably any loss that may be sustained by reason of said lien.
Upon the filing of these answers the circuit court on October, 1878, heard the' cause upon the case as then made, and without passing upon the exceptions, recommitted it to Commissioner Warwick with instructions “to take testimony touching the matters presented by said exceptions, and re
In both of said reports, said commissioner has reported the amounts due upon the two obligations of one thousand eight hundred dollars each, executed by the defendants James T. Lockridge and Lanty Lockridge to William Harper, dated September 9, 1865, and payable respectively on the 1st day of January, 1867 and 1868. Upon the first of these is endorsed a credit of one thousand eight hundred and fifty dollars and seventy-seven cents paid to said Harper on the 20th of October, 1869, and the residue thereof was assigned to the defendants Barlow and Moore. Of the second of said obligations one thousand two hundred and fifty dollars was on the 1st of March, 1871, assigned to the defendant Mary Ann MeClintic, and five hundred and fifty dollars thereof on October 2, 1874, was assigned to the defendant Isaac Moore, and the residue, ninety-six dollars and thirty-seven cents was
By said report No. 2, said commissioner reported as statement 2d “ a statement showing all the lands owned by James T.' Lockridge, in tracts, or parts of tracts, to-wit: thirty-two acres, one hundred acres, thirty acres, two hundred acres, forty-four and one half acres, one hundred and eighty-four
“J. 0. Hutton AND Others, Plaintiffs, j vs. James T. Looicridge, &o., Defendants, and D. W. Gibson, Plaintiff, vs. John J. Gat, &c., Defendants, and Samuel B. Campbell, eor, &c., Plaintiffs, vs. Lanty Looicridge, &o., Defendants. In Chancery.
“These three causes came on this day to be heard together upon the papers formerly read in each of the said causes, the*171 first of tbe above causes upon report No. 2 ot Commissioner James W. Warwick, dated April 28, 1879, with three exceptions thereto, and was argued by counsel as to said cause; the second upon the papers formerly read, and the argument of counsel; the third upon the report of Commissioner John Osborne, to which there is no exception, and was argued by counsel. On consideration whereof, it is adjudged, ordered and decreed that the exceptions to report No. 2, in the first ot the above causes, of Commissioner J. W. Warwick be and the same arc hereby overruled, and said report No. 2 is hereby in all things confirmed; that the several creditors of the defendant, James T. Lockridge, named in said report, recover against the said Lockridge the respective amounts therein found due to them, with interest on each of said amounts from the 29th day of April, 1879, till paid, and that the plaintiffs in each of the above named causes recover of the defendant, Lockridge, their costs in each of said suits; and the court doth further adjudge, order and decree that the said creditors have liens uppn the lands of the defendant, Lockridge, in the order set forth in said report No. 2; that unless the defendant, James T. Lockridge, or some one for him, shall, within thirty days from this date, pay the said debts and costs of these suits, then H. S. Turk and L. IL Stephenson, who are hereby appointed special commissioners for the purpose, either of whom may act, shall, after advertising the time, place and terms of sale in the Greenbrier Independent, a newspaper printed in the town of Lewisburg, as said commissioners shall deem best, for four consecutive weeks, proceed to sell at public auction' to the highest bidder, in front of the court hous.o of Pocahontas county, the lands in the bill and proceedings mentioned in the first of the above causes, now belonging to the said James T. Lock-ridge, subject to the trust deed, to indemnify Isaac Moore — in casé the land so subject sells for more than is sufficient to satisfy the incumbrances prior to said trust deed of said Moore —for so much cash in hand as will pay the costs of these suits and the expenses of sale, and for the residue upon a credit of one, two and three years, taking from the purchasers bonds with good security, wdth interest from day of sale, and the legal title to be retained as ultimate _*172 security; and said commissioners are directed and authorized to sell such land as a -whole or in such parcels as may be by them deemed most likely to bring the best price; and they are authorized to employ a surveyor, if they deem it advisable, to lay oft said lands in separate tracts or parcels, the expenses of said survey to be taxed in the costs- of these suits. The said commissioners are directed and authorized to sell said lands, or so much thereof as they can, privately, in such parcels as they may deem expedient and advisable, between this date and the 1st day of July next, subject to the confirmation of the court, said private sale to be upon the same terms as the public sale hereinbefore directed; but if the whole of said lands are not sold by the 1st day of July next, then the said commissioners are directed to advertise and sell said lands, publicly or pifivately, upon the terms or in the manner hereinbefore directed, and said commissioners will report their proceedings under this decree to the next term of this court; but before said commissioners shall receive any money under this decree they, or the one acting, shall execute and file with the clerk of this court bond, with good security, in'the penalty of thirty thousand dollars, conditioned according to law. The right to decree a sale of any lands which have been aliened by the defendant, James T. Lockridge, and which are liable for the payment of any of the debts in Commissioner Warwick’s report No. 2, is reserved until it is ascertained whether the lands not aliened are sufficient to pay said debts in said report. The second of the above causes is continued until the next term of this court, and the report of Commissioner John Osborne in the third of the above causes is confirmed, but the debts reported and allowed in said report, being a part of the debts reported and allowed in the report No. 2 of Commissioner Warwick in the first of these causes, and it appearing that the defendant, Lanty Lockridge, is the surety of the defendant, James T. Lockridge, in all of said debts, except the debt of S. B. Campbell, for, &c., the court does not deem it proper to decree a sale of the lands of said defendant, Lanty Lock-ridge, until it is ascertained that the lands of James T. Lock-ridge, hereinbefore decreed to be sold, are insufficient to pay said debts; and it is further adjudged, ordered and decreed*173 that the judgment of Thomas Campbell, reported in the fourth class of Commissioner Warwick’s report No. 2, is to be set-off against the debt of the defendant, James T. Lock-ridge, as is shown to be due from the estate of Amos E. Campbell, deceased, in the report of Commissioner Warwick, reported at this term of the court in the chancery cause of James T. Lockridge v. Amos E. Campbell’s administrator, &c.”
From this decree,, the defendant James T. Lockridge appealed; and a supersedeas was awarded thereto. He has assigned five errors committed by the court in rendering said decree, which we will consider in the order in which they are presented, all of which may bé included in the general allegation that the court erred in overruling his said exceptions, and confirming in all things the said commissioner’s report No.' 2. The first and second errors assigned may be considered together as the same principles of law are applicable to both; the first alleging that he ought not to have been charged with the payment of said sum of eight hundred and twenty-one dollars and sixty-six cents, ascertained by the commissioner to be the balance remaining unpaid upon the said decree of Samuel L. Gibson, executor of Jacob G. Slaven, against him and Eleanor Slaven for the reasons stated in his said exception; the second alleging that ‘he is erroneously charged with the sum of two thousand four hundred and sixty dollars and forty-six cents, the balance ascertained remaining unpaid upon the said judgment’ of William Skeen executor ”of Henry M. Moffett against George B. Moffett and himself as surviving obligors of themselves and Hugh McLaughlin, because the administrator of said McLaughlin is not a party to this suit; for the reason that it is possible he may have paid the debt, and because the said Skeen has a suit pending to sell the real estate of said George B. Moffett, who is alleged to be the principal debtor, and that his property being primarily liable ought to be first exhausted. Both of these grounds of error are relied on as matters of defence in the answer of James T. Lockridge. But the plaintiff’s general replication directly puts these, and all other matters of his defence in issue, and thus imposes'upon him the necessity of proving
Not being a lien upon any of said lands, there was no error in the said decree in failing to provide for its payment; neither did the court err in overruling the exceptions of the defendants, T. L. and J. N. Campbell, to the commissioner’s reports, .for allowing to the defendant, James T. Lockridge, the credit of two hundred and six dollars and sixty-nine cents upon the judgment of Thomas Campbell for one thousand three hundred and fifty-four, dollars and twenty-one cents.
It is insisted by the appellee, David W. Gibson, that the decree of April 29, 1879, is erroneous because it overruled his exception to the report of said commissioner which reported in his favor only the sum of fourteen dollars and forty-one cents, the amount of his costs upon his judgment of one hundred and six dollars and forty cents and disallowed the principal and interest thereof. It is insisted on the part of James T. Lockridge, that the whole amount thereof except the said costs, was attached in his hands at the suit of one John J. Gay, and that upon judgment rendered thereon against him as a garnishee indebted to said Gibson he paid the whole amount thereof to the said Gay. While the testimony in the record is not very satisfactory as to the precise character of the judicial proceeding, on which this judgment against Lockridge in favor of Gay was obtained, yet it does appear that such a j udgment in favor of Gay was recovered by him against said Lockridge, and that he paid the said sum of one hundred ánd six dollars and fifty-nine cents over to said Gaju It is evident from the deposition of said D. W. Gibson, that he knew that some such proceedings were had against him by said Gay before Justice Waneless in Pocahontas county, yet as he has not produced either a copy of the said proceedings, or offered any other evidence in regard
But it clearly appears from the transcript of the record in this cause that there was retained in the deeds from Lanty Lockridge sr., conveying to James T. Lockridge, said “Elk land” a lien in favor of his children and payable at his death, of one thousand dollars; and that James T. Lock-ridge first aliened a parcel thereof to said McLaughlin, but the number of acres and when conveyed does not appear; that afterwards on the 28th day of October, 1874, he conveyed a second parcel thereof to the defendant Isaac Moore, and that afterwards on the 26th day of May, 1876, he con-
By the said decree the said court overruled all the said exceptions to the commissioner’s report No. 2, and “confirmed the same in all things,” and yet at the conclusion of said decree, tire court “adjudged, ordered and decreed that the judgment of Thomas Campbell, reported in the 4th class of Commissioner Warwick’s report No. 2, is to be set oft against the debt of defendant Jamos T. Lockridge, as is shown to be due from the estate of Amos. E. Campbell, deceased, in the report of Commissioner Warwick reported at this term of the court, in the chancery cause of James T. Lockridge v. Amos E. Campbell’s administrator,” &c.
What possible connection there may be between that cause and the case at bar, does riot appear in the pleadings or the proofs, nor who were the parties thereto, nor what was the amount of the debt clue to said Lockridge from Amos E.. Campbell, deceased, neither does it appear that the cause of Lockridge v. Amos E. Campbell’s administrator, ¿'e., was heard with or even read in connection with this cause. Without knowing what was contained in that cause, which was no part of this, that portion of said decree above recited is wholly unwarranted by the pleadings and proofs in this cause, and the same for this cause is erroneous.
By the decree of the 29th of April, 1879, it is “further adjudged that the said creditors have liens upon the lands of the defendant Lockridge in the order set forth in said report No. 2,” thus in effect declaring that the said balances due upon said two obligations of one thousand eight hundred dollars each, amounting in the aggregate on that day as shown by said report No. 2 to two thousand three hundred and Ihirty-eight dollars and ninety-six cents, are a general lien on oM of said lands, whereas by the deed of trust to said Curry the same are specific liens on the said four hundred and twenty acres, as of October 19, 1869, and are not liens on any of said other lands. This is also an error, and one which may possibly work great injustice to all subsequent incumbrancers men
"We are therefore of opinion and do accordingly adjudge, order and decree that for the errors aforesaid, such parts of the said decree of the circuit court of Pocahontas county, rendered on the 29th of April, 1879, as declare the said debt of two thousand three hundred and thirty-eight dollars and ninety-six cents a general lien on all the lands of said judgment-debtqr; and as direct the said demand of said judgment-debtor against the estate of said Amos E. Campbell to he set-off, against the said judgment recovered by said Thomas Campbell for one thousand three hundred and fifty-four dollars and twenty-one cents; and as direct the sale ot said lands, and as confirm that portion of said commissioner’s report No. 2 as reports that said judgment-debtor is the owner of undivided interests in said two hundred and sixty acres and two thousand acres, and as a part of said four thousand six hundred and seventy-five acres; and as direct the said four hundred and twenty acres to be sold subject to said lien of said deed of trust to indemnify said Isaac Moore, be set aside, reversed and annulled, and that the said decree as to all other matters be affirmed, and that this cause be remanded to said circuit court, with instructions to cause the plaintiffs to amend their said bill by making the said children of James T. Lockridge parties defendant thereto, and to recommit the cause to one of its commissioners to ascertain and report what share or interest is owned by said judgment-debtor in the said tracts of two hundred and sixty, two thousand, and four thousand six hundred and seventy-five acres of land; and also the value.of that parcel of said “Elk land” conveyed to William D. Mo'ore, and whether the same will be a sufficient security for the lien of one thousand dollars; and, if not, what portion thereof will be chargeable upon the said parcel conveyed to Isaac Moore and consequently upon said four hundred and twenty acres, and the priority thereof, and what part of any if the proceeds of the sale of said four hundred and twenty acres ought to be retained for the indemnity of Isaac Moore together with any other matters deemed pertinent to the subject, so to be submitted to said commissioner, and to be
Aeeirmed in Part and Reversed in Part. Cause Remanded.