79 W. Va. 541 | W. Va. | 1917
H. C. Jones brought this suit in chancery to enforce judgment liens against the lands of the defendant, James Blankenship, Jr. Defendant failing to appear in obedience to process duly served, the bill was taken for confessed, and the cause referred to a commissioner to ascertain and report what lands he owned; the liens thereon with their piorities, and
The land had been conveyed to defendant by plaintiff, by deed dated the 19th of February, 1913, the consideration, mentioned in the deed, being $2,600 cash. On the same day defendant conveyed to plaintiff a tract of 103 acres of land, the consideration therefor not being made to appear in the record. In the first named deed plaintiff made the following reservation:
“The grantor hereby reserves a vendors lien on the property hereby conveyed to secure him against any loss that may be sustained on account of the loss of title or failure of title to the land conveyed by Julia A. Blankenship and James Blankenship to H. C. Jones Exr. &c. by deed dated the 19th day of February 1913, and not yet of record, said land being 103 acres, situate on Copperas Mine Fork.”
And the commissioner reported, that -a suit was then pending, which involved the title to the 103 acre tract, but that there was no evidence of the amount secured by said vendor’s lien, and, therefore, he held it was not such a lien as affected the rights of the other lienors. J ones excepted to the report, and the court overruled his exception, and decreed the con
Plaintiff has appealed and assigns two errors: First, the refusal of the court to decree his vendor’s lien to be a lien superior to all others reported; and second, granting relief to the U. S. C. & 0. Co. on its petition without defendant’s appearance thereto, or service of process thereon upon him.
Respecting the first assignment, the failure of plaintiff’s lien to show the amount for which it was retained, or that any amount would ever certainly become due, was not sufficient reason for rejecting it. The first point of the syllabus in Knott v. Manufacturing, Co., 30 W. Va. 790, defines an equitable lien as follows:
“Every express executory agreement in writing, whereby the contracting party sufficiently indicates an intention to make some particular property, real or personal, or fund therein identified, a security for a debt or other obligation, or whereby the party promises to convey, assign, or transfer the property as security, creates an equitable lien upon the property so indicated, which is enforceable against the property.”
That definition is repeated in language almost identical, in point 4 of the syllabus in Fidelity Ins. &c. Co. v. Shanandoah Valley R. R. Co., 33 W. Va. 761. The lien was not retained to secure the payment of a certain sum of money, or to secure an indefinite sum, certainly to become due, but only to indemnify plaintiff against a possible loss, for which his grantee would be liable to him. The amount of such loss, or whether there would certainly be any loss at all, was not then ascertainable. A suit was then pending in which that matter would be determined: Mortgages and trust deeds given to protect persons against such contingencies are almost invariably sustained by the courts. Why, therefore, may not a grantor,
Plaintiff does not object to the sale of the land, but complains only of the rejection of his lien. He is entitled to a lien, for his indemnity, upon the proceeds of sale in preference to all other liens reported, and to have the fund set apart and held for his protection, until the contingency is determined by the pending suit to test his title to the 103 acres of land. Until then the court can not apply any part of the proceeds to the other and subsequent liens, but may direct that it be loaned out at interest, until plaintiff’s loss, if any, is determined. It should then be applied, first to the satisfaction of plaintiff’s lien, and next to the discharge of the other liens decreed, in the order of their priorities.
Respecting the second assignment, it is unnecessary to de
In so far as the decree denies relief to appellant and enforces the contract of sale to the.U.-S. C. & 0. Co., without notice to defendant Blankenship, and directs the proceeds to be applied to the payment of other ascertained liens, before the amount of plaintiff’s Ren has been determined and provided for, it will be reversed, and in all other respects it will-be affirmed, with costs tu appellant against the United States Coal & Oil Company, and the cause remanded for further proceedings.
Reversed and remanded.