43 W. Va. 117 | W. Va. | 1897
At the December rules, 1884, Ellen McDonald and others hied their bill in the Circuit Court of Putnam county, against Catherine McKittrick in her own right and as ad-ministratrix of Patrick McKittrick, deceased, and all the unknown heirs of said Patrick McKittrick, C. A. Yan-troux, and Rufus Switzer, trustee. The complainants allege in their bill: That Catherine McKittrick was duly appointed and qualified as administratrix of said Patrick McKittrick, her deceased husband. That the greater paid, of the estate of which the said Patrick McKittrick died seized consists of a valuable tract of land consisting of three hundred and twenty acres, situate in Putnam county, West Virginia, conveyed to said Patrick McKittrick by Thomas Dawkins by deed bearing date the 18th day of May, 1851, excepting a fractional piece thereof, conveyed by said Patrick McKittrick to Bishop John McKain, of Wheeling. That there were no debts against the said ■ estate of Patrick McKittrick except one note of five hundred and twenty-two dollars and seventy-three cents, due O. A. Yintroux, and secured by deed of trust bearing date the 14th day of March, 1883, and of record in the clerk’s office of the county court of Putnam county, West Virginia, in which trust deed Rufus Switzer was trustee; and a certified copy of said trust deed was exhibited with plaintiff’s bill. That there were other trust deeds conveying said lands by said Patrick McKittrick in his life-time, which plaintffs allege they are informed have been fully paid up. The one of Patrick McKittrick and wife to James W. Doge,, trustee, to secure to William E. Yintroux two hundred and twenty-one dollars and seventy-two cents, should be released, as the same debt is included in the amount secured in the trust first mentioned. That the amount secured bv' deed of trust to William A. Bradford, trustee, for William Denson, has long since been paid and discharged, and should be released. And complainants pray that enough of said land be sold to satisfy the debt secured by the deed of
At the January rules, 1885, Daniel McKittrick, who sued on behalf of himself and all other creditors of Patrick McKittrick, deceased, filed his bill in said circuit court, against Catherine McKittrick in her own right and as ad-ministratrix of Patrick McKittrick, deceased ; C. A. Vin-troux in her own right and as administratrix of William T. Yintroux, deceased; Taylor Hoge, administrator of J. W. Hoge, trustee, deceased;. Rufus Switzer, trustee; L. A. Christie, administrator of William Henson, deceased; William A. Bradford, trustee; and the unknown heirs at law of Patrick McKittrick, deceased, — alleging therein : The death of Patrick McKittrick, and the appointment and qualification of said Catherine McKittrick as his adminis-tratrix. That more than six months luid, elapsed since the appointment and qualification of said administratrix, and that, although the estate was and is largely in debt, no suit had ever been instituted by said administratrix for the purpose of winding up and settling up said estate, and to sell said real estate belonging to said estate to pay the debts on said estate. That said Patrick McKittrick left no personal estate, hut that he died seized and possessed in fee of said tract of three hundred and twenty acres near Scott depot, on the Chesapeake & Ohio Railway, in Putnam county, less a lot one hundred and sixty-two by two hundred and eight and three-fourth feet conveyed out of said tract by said Patrick to Bishop- John McKain, of Wheeling, by deed dated April 29, .1876, as' a site for a Catholic, church; and setting forth the trust liens upon the same as stated in the other bill, and also stating which of said trust liens had been paid off and discharged, and also
On the 25th day of February, 1885, in said cause of Daniel McKittrick against Catherine McKittrick, et al., a decree was entered referring the same to Hugh L. -Judge, one of the commissioners of the court, to make and state an account showing: (1) The nature and amount of the complainant’s' claims against the. estate of Patrick McKit-trick, deceased; (2) of what estate, real, personal, and mixed, the said Patrick died seised and possessed, and what disposition, if any, had been made of said personal
On the fid day of March, 1888, the two causes of Daniel McKittrick against Catherine McKittrick et al-, and Ellen McDonald et al. against Catherine McKittrick, etal., were consolidated, and it is recited in the decree rendered on that day ip said consolidated causes that, it appearing that one hundred acres of the tract of land mentioned in both canses has been sold to pay off the note of O. A. Vintroux secured by deed of trust on said land, and that the judgment of the plaintiff in the first cause above named is a lien on the balance of said land, and that the plaintiffs in the second cause above named are entitled to have said tract of land sold (subject to the widow’s dower), and the proceeds applied to the judgment aforesaid and costs of the first suit, and the balance of the proceeds arising from said sale distributed among the heirs at law of Patrick McKittrick, it was ordered that Rufus ¡Switzer, special commissioner, do proceed to make the sale directed to be made by him in said first-entitled cause, and report the same to court. On the 26th day of ¡September, 1888, a decree was rendered in said consolidated causes on the report of said Rufus ¡Switzer, special commissioner, reporting the sale of the tract of land decreed to be sold in said causes, setting forth that the same had been sold to one J. M. White for one thousand one hundred and twenty dollars ; that the said purchaser had paid cash $500, and executed his two notes for the balance, with security, efe., which sale was approved and confirmed, and said commissioner was directed out of the money in his hands' arising from said sale, to pay first the cost of said sale and consolidated suits, and the judgment rendered in favor of the plaintiff in the cause of Daniel McKittrick et al., and directed said special commissioner, when the purchase money was paid, to execute a deed to said purchaser. On the 81st'day of May, 1889, a decree was rendered in said causes directing a commissioner of said court to ascertain and report (1) who are the heirs of Patrick McKittrick, deceased; (2) in what proportion they are entitled to the distribution of the moneys arising from the sale of the
The first error assigned and relied upon by the appellant is that the circuit court of Putnam county erred in consolidating and naming together the said chancery causes. Now, as we understand the practice in regard to the consolidation of causes it is a matter addressed to the sound discretion of the court that tries the causes. Ho in the case of Beach v. Woodyard, 5. W. Va. 231, this Court held that the rule, for the consolidation of suits is alike in equity and at law, aud the matter is always addressed to the discretion of the court. The proper mode for bringing the subject to the attention of the court is by motion for a rule to show cause why suits or actions should not be consolidated. Where the parties are the same, and separate, suits haye been brought in equity upon matters which might have been united in one suit, and the defense is the same in all, a consolidation rule ought to be granted, etc. In the case under consideration the object of both of the
The next assignment of error is that the court erred in the decree of March 8, .1887, in directing the sale of the land in said causes mentioned without setting aside to the widow, Catherine McKittrick, her dower in said land. An examination of the record discloses the fact that not only in the decree of March 8, 1887, but in the decree of March 8, 1888, after said causes were consolidated, said real estate of Patrick McKittrick was directed to be sold .without first having assigned to the widow, Catherine McKittrick, her dower therein. This question was before this Court in the case of Kilbreth v. Root's Adm'r, 33 W. Va. 600 (11 S. E. 21), where it is held (point two of syllabus) that, “when the widow is a defendant in the suit, and has not elected to take the value of her dower in money, her dower should be assigned before an out and out sale of the realty is decreed.” In that suit the main object of the bill was to enforce the lien of a decree against the real estate of Root, who was deceased. ¡See, also, Laidley v. Kline, 8 W. Va. 218 (seventh xioint of syllabus), where the same is held.
The remaining assignments of error are as follows: “(8) The court erred in confirming the report of J. L. Mid-
Reve rued.