46 W. Va. 433 | W. Va. | 1899
William H. Kennedy made a deed of trust upon certain lands to secure his bond to Reuben Davisson for eight hundred and ninety dollars and twenty-eight cents. In 1894 William Robinson, administrator of Solomon Sayer, brought a chancery suit din the orcuit court of Barbour County against Kennedy to enforce against Kennedy’s lands the lien of judgment in favor of said administrator against Kennedy, making Davisson a party; and in this suit there was a reference to a commissioner to convene the lienors, and report their liens upon Kennedy’s lands, and upon such report there wras a decree declaring certain debts liens upon Kennedy’s lands, — among them, Davisson’s debt, —and directing their sale to satisfy such liens. In 1897 Kennedy brought a chancery suit in «aid court against Dav-isson to set up certain set-offs against the .debt which had been decreed him, and to enjoin the sale under the said decree until such .set-offs could be investigated and decreed upon; and, upon demurrer, Kennedy’s bill was dismissed, a.nd| he has taken an appeal covering both the decree of sale in the Robinson suit and the decree dismissing the kill in his suit.
It is contended that as both Davisson and Kennedy were defendants in the Robinson suit, and filed answers, .and gave their own evidence that Davisson’s debt was unpaid the decree is a bar against the set-offs sought to be enforced by Kennedy, on the principle of res judicata. There is no question that the decree is res judicata as to the justness and amount of Davisson’s debt on its cause of action. It conclusively makes Kennedy Davisson’s debtor to .its amount. Lehman v. Hinton, 44 W. Va. 1, (29 S. E. 948); Crumlish's Adm'r v. Railroad Co. 40 W. Va. 656, (22 S. E.
Then is Kennedy entitled to maintain a bill to enforce such set-offs? This is not a bill to get set-offs against a judgment, which could have been pleaded at law, but is a case where a party aid not make the defense before the decree, because, as the bill says, Davisson promised to have a settlement, and allow against such sum as might be decreed him the amount of set-offs, amid) not to enforce the decree during life. The parties’ land is to be sold for that debt, and, if the demand of Kennedy is just, it largely covers Davisson’s demand!, and it seems to me there is no adequate remedy at law. If he waits to get judgment, his land will be gone, and his injury irreparable. Here is a distinct agreement to apply the set-off, and 2 Story, Eq. Jur. section 1485, says that, “if there be an express agreement to set off the debts against each other fro tanto, there could be no doubt that a court of equity would enforce specific performance of the agreement, although at law the party might be remediless.” So. Wat. Set-Off, section 411; Raleigh v. Raleigh, 35 Ill. 512. In that ease the court said “It dis further alleged that it was in fact understood between the parties that one debt should be applied in satisfaction of the other. (If these facts are true and they are aldlmitted by the demurrer), the court is of opinion that ¡they establish an equitable ground for protectiotn against the appellee’s demand.” In Doody v. Pierce, supra, the agreement to set'off was held executory, and thus as not discharging the mortgage so as to prevent a bill to redeem it, and that the party could file a bill to redeem the mortgage by enforcing that contract. So I decide that the bill shows, so far, a standing in equity.
It ip contended that as Kennedy, as a witness in the Robinson case, when asked if the debt or any of it, had ever been paid, answered, “The debt has never been paid,” he convicted lriimself of utter-inconsistency with the pre
As to the errors assigned in the sale decree: That -was a decree in a separate suit, and decrees in separate suits cannot be united in one appeal. If we were to decide on the assignments of error, the want of Robinson’s heirs, be being a mere creditor, as parties, and a discrepancy between the commissioner’s report and decree in mere quantity of the tracts, amount to nothing. Decree reversed, demurrer overruled, and remanded.
Reversed.