Laidley v. Hinchman

| W. Va. | Jan 15, 1869

Maxwell, J.

The trust creditor, Lawson, should have been a party, and the amount due him, as well as the amount due Hite, the other trust creditor, should have been ascertained before a sale of the land was decreed.

The debts provided for in the deed of trust appear to have been due for some time without any sale having been ■made or required to be made by the trust creditors, and the judgment creditor had a right to enforce her judgment at law against the lands conveyed in the deed of trust, subject to the debts secured by the trust. It is claimed, however, that the equity of redemption only could be sold to satisfy the judgment. A court of equity should not ordinarily interfere with debts secured by deeds of trust, but when, as in this case, a trust is allowed to stand after the debts secured by it fall due, in the way of judgment liens younger than the trust, a court of equity ought to interfere at the instance of the judgment creditor for his protection'. And when the case comes into court the parties ought to stand and be treated as if they both had judgment liens. The property ought to be sold by a decree of the court if the' rents and profits will not satisfy the liens in five years. Sales of equities of redemption should always be avoided when they can be. The cases referred to by counsel, of the sale of equities were of dry reversions where the judgment creditors could not realize anything in any other way.

In the case under consideration the balances of the trust debts should have been- ascertained and the decree should have been for the sale of the propeyty for the payment, first of the trust debts and the judgment debt, unless the rents and profits would satisfy the debts in five years, and a reference ought to have been directed to ascertain how that matter is, as it does not otherwise appear in the record.

Nothing in this case, however, would prevent the trust creditors from causing a sale to be made under their deed of trust at any time.

The fifth cause of error assigned is for other errors apparent in the record. This assignment is very general and does not point out the error intended by it, nor has the error been suggested here in argument. I do not propose to search the record for errors not specially pointed out in the petition or in argument, and if I have failed to notice any errors that may exist in the record it is' because the appellant has not called attention to them.

I think the decree complained of will have to be reversed, with costs to the appellant, and the cause remanded for further proceedings to be had therein, according to the principles above indicated.

Berkshire, J., concurred.

Decree reversed.