64 W. Va. 195 | W. Va. | 1908
This appeal is- on behalf of I. V. Newman and Emma L. Newman, defendants with others in the suit of F. E. Newman, which, after plaintiff’s death, was revived and prosecuted in the name of J. 0. MeDermitt, sheriff, her administrator. The bill sought to declare a judgment confessed by I. V. Newman in favor of P. C. Eastham to be an unlawful preference, because of debtor’s insolvency at the time, over debts due plaintiff from him,' and the subjection of debtor’s real estate to the payment of such debts. Other defendants were shown to have prior liens on the land, by deeds of trust. The debts alleged in favor of plaintiff were represented by two notes executed by I. Y. Newman to her, under seal. I. Y. Newman appeared to the original bill, and his demurrer thereto was sustained, and plaintiff permitted to amend. After amendment of the bill, he filed his separate answer, and there was general replication. Plaintiff then took proof in support of the bill. ‘ Pending the suit, without order therein, notwithstanding the trustees and beneficiaries in the deeds of trust were parties, duly summoned in the case, under one of these deeds of trust sale was made of the portion of the lands of I. V. Newman covered thereby, and purchases at such sale made by the beneficiary in this deed of trust and one A. E. Smith, who was not a party. Then an amended and supplemental bill was filed, alleging these deed of trust sales to be in prejudice of plaintiff’s rights, asking that the same be set aside as affecting the objects sought by plaintiff’s original bill, and praying that A. E. Smith be
The errors assigned are (1) in hearing the cause at a
' We fail to see that prejudice came to defendant I." Y. Newman by- the action of the court in hearing the cause at a term when it was-improperly on the docket, not set for hearing at rules, since, after his objection to such hearing w’as overruled, that defendant appeared,' answered and tendered pleas. The object of proceedings -at rules is-to expedite the maturity of causes "in- the recess or -vacation of the court. 4 Minor’s Inst. (3rd Ed.) 664. It would certainly be erroneous to hear a cause that had not been matured for hearing at rules, in the absence of a defendant prejudiced thereby. Gallatan Land, Coal & Oil Co. v. Davis, 44 W. Va. 109. A defendant takes notice of these rule-day entries, and relies upon them. If none is made, he has a right to rest upon the knowledge that the cause is not being prosecuted against him to a hearing at which he must respond. But is it not different where the very reason, necessity and importance of these rule proceedings in maturing a cause are removed by the appearance of defendant and his response by the defense which he has to offer? The rules are steps taken leading to the day when defendant must answer. May not such steps be waived by answer? The court will not do a vain thing. It would be vain now to reverse the decree and send the cause back to rules to have it there set for hearing, for the purpose of admitting defendant’s same answer to the amended and supplemental bill. How would this benefit him? We must presume that it would be the same answer. There is nothing in the cause to show that he had any other, or that he was deprived of full right and opportunity of making it. He appeared and answered, but he did not ask continuance or mention desire or cause for delay. It seems that he was ready to meet the issue on the latter bill. Complete answer to the contention in this particular is that, as to this complaining defendant, the cause needed no maturing at rules. He appeared and saved the
Error is assigned as to the rejection of both of the pleas tendered, yet we observe that it is not insisted upon in argument, or even mentioned there, as to the second plea. And as what we shall say as to the first plea is sufficient to show the propriety of rejecting the other, we. shall confine ourselves to the one the rejection of which as error is relied upon in argument. The gravamen of this plea is that the two notes under seal, upon which this suit is based, were made and executed without any consideration deemed valuable in law. Without considering the substance of the defense offered by this plea, it suffices to say that it was properly overruled, because it came after answer which went to the whole of the bill and reserved nothing to be availed by plea. The only object of a plea in equity was defeated by the filing of the answer. “The true end of a plea' is to save the party from the necessity of making a discovery which may be adverse to his interests, and from the expense of an examination of the witnesses at large, or of adjusting accounts.” 4 Minor’s Inst. (3rd Ed.) 1401. Plaintiff, as we have stated, had fully answered the original bill to which this plea pertained, and had thereby put plaintiff to extended proof, by examination of witnesses at large. Therefore, the plea could not serve the true purpose of such pleading. In short, he waived his right to plead, by answering. “The reason of this doctrine is, that pleas are to be put in ante litem contestatam; because they are pleas only, why the defendant should not answer; and therefore, if he does answer to anything to which he may plead, he overrules his plea; for the plea is only, why he should not answer; and if he answers, he waives the objection, and of course his plea.” Story’s Equity Pleadings (10th Ed.), section 688. "We remark again, the answer went to the whole bill. It had no other purport. It does not profess to answer a distinct?;, part of the bill, reserving plea as to some other part. And on such answer defendant rested his case until the hour of final hearing, when he sought to interpose this plea.
It was within the province of the court to direct the trustee in the deed of trust made to secure Sommerville to sell the land covered thereby, pursuant to the terms thereof, and to report such sale to the court for approval and disposition of the proceeds according to the priority of the liens on that land as reported by the commissioner. The court could direct sale this way, as well as by appointment of special commissioner. It simply adopted the method, terms and agent agreed upon by the grantor and beneficiary, reserving the same supervision over the sale that it did over the sale of the lands directed to be made by ' special commissioners. This appears not only regular but reasonable, and certain it is that nothing appears to show that it is prejudicial to the rights of those whose real estate is to be so vended. The petition of Sommerville showed reason and desirability of sale that way. No one resisted the prayer of such petition. Emma L. Newman, one of the parties to that deed of trust,
Was it necessary to ascertain the rents and profits in five years, to see if they were sufficient- to pay the liens, in a suit of this character ? It is certainly so in a suit to subject land to the satisfaction of a judgment lien. Code, chapter 139, section 7. But this suit is based on an unlawful preference, a species of fraud on the rights of a creditor. Such ground gave plaintiff right to this suit before reducing' her claim to judgment. T. Y. Newman’s act in confessing judgment in favor of one creditor, when he was insolvent, caused the property owned by him, and affected by the confessed judgment, to be forfeited for sale for the benefit of all creditors. We say for sale, not for rent. This is the plain statutory law. controlling this point. Code, chapter 74, section 2. The law expressly includes a confessed judgment in the term “charge,” and then further provides: “Every transfer or charge made by an insolvent debtor attempted to prefer any creditor of such insolvent debtor or to secure such a creditor or any surety or indorser for a debt to the exclusion or prejudice of any other creditor, shall be void as to such preference or security, but shall be taken to be for the benefit of all creditors of such debtor, and all the property so attempted to be transferred or charged shall be applied and paid pro rata upon all debts
We affirm the decrees and remand the cause for sale of the property in conformity therewith.
Afirmed. Remandad.