44 W. Va. 1 | W. Va. | 1897
At April rules, 1883, of Summers county circuit court, Lehman, Kichman & Co. and A. C. Snyder, who sue for themselves and all other lienholders of Evan Hinton who will come in and contribute to the expenses of the suit, filed their bill in chancery against Evan Hinton, Joseph Hinton, Richard Woodrum, Joseph Ellis, William Hinton, Avis Hinton, John Hinton, J. Sliced Thompson, M. V. Cal-loway, James Roles, administrator of Henry Gore, William M. French, Adaline B. French, John Clark, Lydia Clark, W. A. Crotley, Mary A. Crotley, and James H. Gore, setting up a judgment lien of the said Lehman, Richman & Co., and also a judgment lien in favor of A. C. Snyder against Evan Hinton, in which judgment the said Evan Hinton was principal, and the other defendants his sureties, alleging that he was seised and possessed of real estate of large quantity and great value in Summers and other counties of this State, the location and description whereof are unknown to the plaintiffs, and alleging that said Evan Hinton was at one time sheriff of Summers county, and that the sureties on his official bond were Joseph Hinton, Richard Woodrum, Joseph Ellis, William Hinton, Avis Hinton, John Hinton, J. Speed Thompson, M. Y. Calloway, and Henry Gore. That Gore had departed this life, and James Roles had qualified as his administrator. That he left surviving him a widow, Adaline B. Gore, who has since intermarried with the defendant William M. French, and the following children: James H. Gore, Lydia, who has since married John Clark; Mary A., who married W. A. Crotley. And alleging that there are a large number of judgments in said court and in other courts unpaid and unsatisfied, some against said Evan Hinton separately, and some against him and his sureties on his official bond as sheriff, all of wnich constituted liens
On the 10th of May, 1883, the cause was referred to Commissioner E. H. Peck to ascertain the lands owned by the defendant Evan, and also to ascertain all the debts against Evan which were liens upon said land, and their respective dignities and priorities. On the 3rd of September, 1885, said commissioner filed his first report, setting out the, liens on the property of said Evan, among which was a judgment in favor of A. F. Mathews against Evan Hinton, Avis Hinton, John Hinton, William Hinton, and Joseph Hinton for ten thousand seven hundred and eighty dollars and fifty-six cents. On the 9th of September, 1885, the cause was recommitted for the purpose of ascertaining certain credits to which the defendant Hinton was entitled on some of the judgments reported. On the 8th of February, 1886, the commissioner again reported, reporting the said judgment of Mathews at eleven thousand and thirteen dollars and sixty-seven cents. On the 9th of Februry, 1886,. said second report was recommitted to Commissioner Peck, with instructions to inquire into, ascertain, and report upon various questions and matters raised and presented by exceptions taken thereto, and to take and consider any evidence that might be adduced before him in relation to said matters, or as to amounts and priorities in any of the debts in said report mentioned; to reform and restate the said report in accordance therewith, so far as might be necessary; and report to the next term of the court, and return with said report all evidence that might be adduced before him, giving said Evan Hinton ten days’ notice of the time and place that he would take the account. Under this reference the commissioner filed his report on the 6th day of September, 1886, wherein he reports the said Mathews debt at eleven thousand three hundred and thirty-six dollars and ninety-two cents. On the 8th of September, 1886, the cause was again recommitted to said Commissioner
On the 5th day of May, 1887, the cause “came on again to be heard upon the papers formerly read, the stipple-mental report No. 4 from Commissioner E. H. Peck, dated April 7, 1887, made pursuant to the decree rendered at the September term, 1886, to which report there is no exception, and was agreed by counsel,” which decree proceeded to fix the priorities of the liens, and to provide for the sale of the various tracts of real estate of the defendant Evan Hinton. On the 15th of February, 1888, Evan Hinton, by order of the court, was allowed to file his petition in the cause asking- for an order of injunction to restrain the commissioners appointed under the decree of May term, 1887, from making any safe of land under said decree until the further order of the court, and on the next day the said injunction was dissolved with cists to the commissioners. On the 1st of September, 1888, the defendant Evan Hinton, filed his bill of injunction against A. F. Mathews in his own right an das special commissioner, J. Speed Thompson in his own right and as special c nnmissioner, and J. II. McGinnis, special commissioner, Joseph Hinton, Avis Hinton, John Hinton, A. C. Young-, M. V. Calloway, sheriff of Summers count)'-, Abram Bragg, and Russy Deeds, defendants, alleging the pendency of the said suit of Lehman, Richman & Co., against him and others. And alleg
On the 6th of September, 1888, the defendants Mathews Thompson, and McGinnis, by leave of the court, filed their joint answer to the bill denying the allegations thereof; and Mathews averring that said plaintiff Hinton had credit for all he claimed; and alleging that every dollar of the same mentioned in the decree inhis favor was justly due and owing- from Hinton, and that the amount furnished by said Mathews to the commissioner of the account was exactly that agreed upon as the correct amount by him and said Hinton in their settlement; and that this was all done, and the decree rendered, with the full knowledge and consent of said Hinton, who conferred with said Mathews about the preparation of said decree, the selection of commissioners to make the sale, etc., — to which answer plaintiff replied generally. A special replication by plaintiff to said answer is copied into the record, but does not appear to have been filed in the cause, or airy notice taken of it on the hearing. And on the 6th day of September, 1888, the cause came on to be heard upon the bill, answer, general replication, exhibits, and motion of the defendants to dissolve the injunction theretofore awarded the plaintiff to restrain and inhibit the sale of real estate by the plaintiffs under the decree of the court in the cause of Lehman, Hi chinan & Co., against Evan Hinton and others, and was arg-ued by counsel; upon consideration whereof it was adjudged, ordered, and decreed that said injunction be, and. the same was, dissolved at the cost of the plaintiff, and the cause retained upon the docket. On the 7th of September, 1888, said Evan Hinton filed his amended bill, by leave of the court, and upon which process was awarded, against
Arid on the 13th of February, 1889, thefollowing order was made: “This cause came on this the 13th day of February, 1889, to be again heard upon'the papers formerly read, no pi'oeess as directed having been issued or executed on the amended bill filed by the plaintiff at a former term, and said amended bill not having been matured for hearing, and was argued by counsel; upon considet'ation whereof the court is of opinion and decrees that the plaintiff is not entitled to any relief as prayed for in his bill, and it is therefore adjudged, ordered, and decreed that said bill be and is hereby, dismissed, and that the defendants recover from the plaintiff their costs.”
On the next day another order was made as follows: “Upon motion of' the plaintiff, it is adjudged, ordered and decreed that the decree made in this cause on yesterday be modified so as to show that when this cause was submitted to the court the plaintiff moved the court to refer the cause to a commissioner to ascertain whether the decree of said Mathews therein complained of was usurious, and, if so, to what extent, and said motion was overruled. Plaintiff also asked leave to file a new amended bill, but the court refused to grant such leave. ”
On the 19th day of February, 1889, the following order was made in the same cause: “The defendants John and Avis Hinton this day in open court tendered their joint and several answer to plaintiff’s bill, and moved the court that, so far as it sets up matters for affirmative relief, it be treated as in the nature of a cross bill against their co-defendant A. F. Mathews; and further moved that the decrees made in this cause at this term of court be set aside and annulled; but the court overruled all the said motions, and refused to allow said answer to be filed, treat it as in the nature of a cross bill, or set aside said orders. And thereupon the plaintiff moved the court to set aside the orders made herein at this term of court, and that in considering said motion the said answer of said
On the 17th of February, 1888, in the case of Lehman, Richman & Co. against Evan Hinton and others, Joseph Hinton and others, sureties on the bond of Evan Hinton, formerly sheriff of Summers county, filed their petitions, setting up the fact of theirsuretyship, andthe pendency of said suit for the enforcement of liens upon real estate of said Evan Hinton; that accounts had been taken under direction of the court, and liens reported, and a decree of sale of real estate, and that such petitioners had paid large sums of money on the judgments reported, and that they are entitled to be substituted and subrogated to the rights and liens of said plaintiffs in said judgments in accordance with the decree, which has not yet been done; that on the 24th of November, 1875, said Evan Hinton made a deed, which was recorded on the 25th day of November, 1875, to Sylvester Upton, trustee, whereby he conveyed a large amount of personal property and of real estate sought to be subjected in said suit, and thereon already decreed to be sold, in trust to idemnify petitioners as his sureties against all loss by reason of said suretyship; that by virtue thereof they were entitled to the lien and priority thereof created by said deed to the extent that they had already paid, or might thereafter pay, any debts or liabilities upon them, growing out of said suretyship; and that they be protected in their rights.
On the 17th of February 1890, Evan Hinton was given leave to file his answer to said petition in said cause, which was accordingly done, and which answer alleged “that there is one judgment and decree set up in said cause in the name of Alexander F. Mathews against this respondent for the sum of eight thousand one hundred and
Under said decree of reference Commissioner Peck made his report dated April 28, 1890, making statement of the debt of Mathews, and the payments made thereon, and adopted a statement formerly made at the instance of Evau Hinton, showing the decree of Mathews overpaid, filing in support of said statement depositions of Evan Hinton, Griffith Meadows, Joseph Hinton, W. L. Redman, and G. W. Surber. None of these depositions show when
To this report- Evan Hinton excepted in so far as it subrogates Joseph and- Avis Hinton to the liens of the plaintiffs and A. F. Mathews; also because there was nothing to warrant the commissioner in dating the credits for the amounts of the Redman, Gore (Mike Smith farm), and Meadows and other land sales as of May 1, 1887, when the evidence shows that said sales were payments “on the decree” of May 2, 1887. Mathews also excepted to said report wherein it showed his claim overpaid; and excepted to said report as far as it adopted and renewed report No. 5, the statements therein contained, or any part of them; and excepted, further, in so far as the commissioner has allowed credit or- taken into consideration any payments asserted and claimed by Evan Hinton on the amount decreed exceptant at the May term, 1887, because said decree, as between him and Hinton, is absolutely conclusive of the amount then due from Hinton to him, and excludes the consideration and allowances of any credits of an earlier date, and moreover, the order under which the commissioner is acting only authorizes, intends and contemplates the consideration and allowances of credits and payments made on said decree and since it was rendered, and as to anything else said report is ultra vires; for which reason also he especially excepts to the calculation and statement of the commissioner, made “at the special instance of Evan Hinton,” because and so far as it allows credits on his said decree (three thousand two hundred and fifty dollars), for the reason that all said items are prior to the date of the decree, and refers to depositions taken for Hinton of Redman, Meadows, Surber, and others, establishing the dates, and these items not only come as a matter of fact, but must have been, as a* conclusive presumption of law, allowed in the calculation by which the amount of said decree was determined, and cannot now be allowed again. Mathews also excepted to the deposition of Evan Hinton because the credits therein mentioned and referred to,, which were sought to be set up against the decree in favor of exceptant, were all prior to the date of said decree, and must have been in-
The affidavit of Mathews referred to is as follows:
“Statement of amount decreed to me against Evan Hinton in suit of Lehman, Richman & Co. et al. vs. Evan Hinton, et al., with all payments and credits thereon: Amount of decree at May term, 1887, eight thousand one hundred and forty two dollars and thirty-three cents; with interest from May 3, 1887. Credits: Three hundred dollars paid by Jos. Hinton, June 13th, 1887; one thousand dollars paid by Jos. Hinton, Sept. 6th, 1888; one thousand three hundred dollars, amount from sale of ferry applicable to this debt, not yet paid, full and*14 all not due, but as it bears interest, it may be credited as of date of sale — that is September 14th, 1S87; eight thous- and five hundred dollars paid by Jos. or Silas Hinton, January 3rd, 1890 ; one thousand five hundred dollars paid by Jos. or Silas Hinton, January 7th, 1890 ; ninety dollars and eighty-eight cents from a payment on lands in Raleigh and Mercer, sold in“this suit, applicable to this debt.
“State of West Virginia, Greenbrier County — ss: Alex. F. Mathews, having been duly sworn, says that the above is a true and correct statement of the decree in his favor against Evan Hinton in the suit of Lehman, Richman & Co. vs. Hinton et al.; rendered by the circuit court of Summers County, W. Va., at its May term, 1887, and of all payments made thereon, and of all credits to which up to this time it is entitled. Alex. F. Mathews.
“Taken, subscribed, and sworn to before me the 16th dav of April, 1890. Marion Mathews, Notary Public.”
The following are the exceptions to the foregoing affidavit filed by Evan Hinton: “(10) The defendant Evan Hinton excepts to the statement filed by A. F. Mathews in cause of Lehman, Richman & Co. vs. said Hinton et al., filed before Commission Peck, because it is not a deposition, and the defendant thus had no opportunity to cross-examine the said Mathews. Said statement is entirely ex farle, said Mathews having refused to appear before said commissioner, or to even appear in answer to a summons duly executed by service commanding him to appear and produce certain papers as a witness. Evan Hinton, by Counsel.”
Evan Hinton, with his deposition of February 11, 1890, filed before Commissioner Peck a paper marked “EEE,” as follows : “In the case of Hinton vs. Ellis et al., in Summers Circuit Court, I bought the lands therein sold, and I authorized Evan Hinton to resell said lands, and have agreed that he shall have credit on his indebtedness to me for all he can realize net from such resales, after deducting- any other debts, and any costs which have tobe repaid out of the funds, and any other charges for taxes or otherwise that I may hereafter pay. February 22d, 1887. [Signed] Alex. F. Mathews.”
Also the following receipt, marked “I” : “Evan Hinton
These agreements mentioned in receipt marked “I” seem to be the papers for which the subpoena duces tecum was issued requiring defendant Mathews to produce them before the commissioner. Evan Hinton was entitled to the enforcement of the production of said papers, and the examination of the said Mathews with reference to moneys collected by him for Evan applicable to his (Mathews’) decree of May 5, 1887, but he failed and neglected to avail himself of the power of the court’s process to enforce his rights. Although the cause was before the commissioner from time to time, when he had ample opportunity to have done so, the laches of appellant in this cause as shown by the record, are almost without parallel in the course of my observation, and must be. held as a waiver of his rig-lits in the premises. There is no evidence taken in the cause showing any collections by Mathews on account of said agreements, or any of them, subsequent to the date of the decree of May 5, 1887, and the only item proved specifically, for which credit should have been given and was not given, is the one thousand dollars, the price of the Saunders land purchased by Griffith Meadows in July, 1887. Mathews, in his statement of April 16, 1890, upon which
The debt of Mathews had been reported by the commissioner four times, under as many different orders of reference, as herebefore stated: First, for ten thousand seven hundred and eighty dollars and fifty-six cents, as of September, 1885; second for eleven thousand and thirteen dollars and sixty-seven cents, as of February 18, 1886; third for eleven thousand, three hundred and thirty-six dollars and ninety-two cents, as of September, 1886; and fourth for eight thousand, onehundred andforty-two dollars and thirty-three cents, as of May 2, 1887, to none of which reports had Evan Hinton made exceptions as to said claim of Mathews. The cause, on the 5th day of May, 1887, was brought on “to be heard upon the papers formerly read, the supplemental report No. 4 of Commissioner Peck, dated April 27, 1887, made pursuant to the decree rendered
Modified.