| W. Va. | Mar 4, 1889
This is an appeal from two decrees pronounced by the Circuit Court of Wood county in the consolidated suits of Jones & Haines v. R. H. Gillespie, trustee and others, and A. P. Riggs Co. v. John A. Armstrong and others, on July 25, 1885, and March 12, 1887, respectively. Jones & Haines having become deeply indebted in the year 1881 conveyed all their property real and.personal to R. H. Gillespie, trustee, for the benefit of their creditors; and in these consolidated suits the liens on the lands thus conveyed to Gillespie were ascertained and fixed. Among these lands was a tract of eighty seven acres in Pleasants county known as “Tract No. 7.” According to the priorities of the liens it was
“On motion of the defendants Armstrong and the Monitor Tow-Boat and Lumber Co., and by consent of the petitioner, D.. PI. Jones, it is ordered that unless said Jones do, within sixty days from this date, give bond, * * * * the said petition shall be dismissed; so much of the decree of Aug. 7, 1883, as suspends the sale of said tract of eighty seven acres shall have no further effect; and the special commissioners heretofore appointed shall proceed to sell said tract as directed by other provisions of said decree of August 7, 1883.”
The said commissioners after having waited more than sixty days proceeded on March 11, 1884, to sell said tract No. 7, and John A. Armstrong became the purchaser at the price of $500.00; and on August 12, 1884, the court entered a decree confirming said sale and directed the proceeds to be paid on. the debts previously ascertained. But before said sale, to wit, on March 8, 1884, without the knowdedge of the commissioners or notice to the parties interested, the court entered an order extending the time, within which the said D. PL Jones might give the bond required by the decree of
On July 27, 1885, D. H. Jones exhibited in the said court his bill in the nature of a bill of review, in which he sets forth the decrees and orders hereinbefore mentioned and avers, that John A. Armstrong is in possession of said tract of eighty seven acres of land, and prays, that the sale of said land may be set aside, and the said decree of August 12, 1884, confirming said sale be reviewed and reversed, and the purchase-money paid by said Armstrong refunded to him etc.
The defendants John A. Armstrong, The Monitor Tow-Boat & Lumber Company and Thomas O’Brien answered this bill claiming, that the respondent, O’Brien, was a purchaser of said land without notice or knowledge of the claim of D. H. Jones thereto, and that B,. EL Gillespie, trustee, under whom respondents claim, was also a bona fide purchaser without notice; and that therefore they are unaffected by any equity of said D. H. Jones, if he has any, in said land; and they also deny the sufficiency of said bill of review and pray, that the same may be dismissed.
On March 12,1887, the court entered the second decree, from which this appeal is taken, by which the court reversed and set aside the said decree of August 12, 1884, confirming said sale, set aside the sale, and directed the said . O’Brien, assignee as aforesaid, to refund to John A. Armstrong the money paid by him on the purchase of said land and surrender to him his unpaid notes given therefor. The appellants here are John A. Armstrong, The Monitor Tow-Boat & Lumber Company and Thomas O’Brien, assignee of said company; and'the material errors they assign, are as follows : First, in respect to the said decree of July 25, 1885,
1. D. H. Jones in his said petition states, that in August, 1876, he purchased from T. W. Ewart the said eighty seven acres of land at the price of $400.00, of which $100.00 was to be paid cash and the residue in annual payments of $100,00 each with interest; and that Ewart executed and delivered to him a title-bond to make him a deed on the payment of the'purchase-money; that he made the cash-payment and executed his three several notes for the deferred payments; that, when the first note became due, he made an arrangement with Jones & Haines to pay the same to Ewart for him, and he would repay them by delivering to them staves, timber etc.; and that in order to make said Jones & Haines perfectly safe in paying for said land he assigned and delivered said title-bond to them as collateral security; that said Jones & Haines after permitting suit to be brought on said first note paid the same and the costs thereon and charged the amount to him on their books; that subsequently, on July 20, 1877, he and they had a settlement of their accounts, and after satisfying the amount paid by them on said note he owed them a balance of $4.63; that afterwards he continued to deliver lumber and other materials to Jones & Haines, and up to March 15, 1881, he had furnished them more than enough to pay for said land and all the accounts, they had against him; and that notwithstanding this fact the said Jones & Haines on March 15,1881, when they paid off the last note for said land, produced to said Ewart said title-bond with the assignment thereon and without authority and in fraud of petitioner’s rights obtained from said Ewart a deed of that date for said land; that said R. II. Gillespie, trustee, to whom Jones & Haines conveyed said land by deed dated April 27, 1881, as well as John A- Armstrong, The Monitor Tow-Boat & Lum
Jones & Iiaines in their answer to said petition aver, that after D. Ii. Jones had contracted to purchase said land, Ewart refused to give him possession of it, until he paid or secured the cash-payment, and he being unable to pay .it, at his request they, indorsed his note for the amount; that Jones allowed this note to be protested and sued upon, and respondents were compelled to pay it; that then, in order to give Jones further time on the other notes, they indorsed them for him upon his promise to assign to them the said title-bond ; that as these notes severally fell due the said Jones was unable to pay any part of them, and they were paid by respondents, but before they made the last payment Jones told them, they might take the land, and thereupon he assigned and delivered to them the title-bond, and they paid the balance due on the land, and the deed was made to them by Ewart; that Jones has never repaid them one cent of the purchase-money paid by them for the land, and that no part of said purchase-money was ever charged to him on their books; that upon a settlement of the book-accounts between them and Jones, outside of the money they paid for said land, he will be indebted to them about $>200.00; and that a suit has been brought against said Jones to recover this balance. They deny, that said Jones ever paid one cent on said land, or that he has any claim, title or interest therein whatever. They deny, that there was any fraud on their part in said transactions, and' aver, that they were bona fide purchasers and the rightful owners of said land, at the time they conveyed the same to R. H. Gillespie, trustee.
It would subserve no useful purpose to detail or even review the volume of depositions filed in respect to the issues raised upon said petition and answer; therefore I shall content myself by stating, that I-have most carefully and patiently read and considered all of said depositions and the other evidence in the cause, and, after mature consideration of the whole record, it seems-to me, the petitioner has wholly
Reversed.