53 W. Va. 173 | W. Va. | 1903
Charles E. Myllius, who held a judgment against James L. Smith and Floyd G. Smith rendered in the circuit court of Upshur County October 15, 1887, for $2,200.00, filed his bill in the said circuit court in Uov. 1895, against James L. Smith and May Smith, his wife, Floyd G. Smith, John L. Smith, Wil
By deed dated September 15, 1876, John L. Smith and wife conveyed to May Smith, wife of James L. Smith, in consideration of $1,000.00 “$500.00 of which said John L. Smith remits in consequence of relationship which the said May Smith has to him, which $500.00 is to be deducted out of James L. Smith’s portion of the father’s (John L. Smith’s) estate and the remaining $500.00 is to be paid in five annual installments from this date to be paid in saddles at cost valuation, for which deferred payments the said May Smith has this day executed her five notes to John L. Smith and upon further consideration that said May Smith shall pay annually to said John L. Smith the sum of twenty-five dollars so long as he may live.
Said ' conveyance was with general warranty to said May Smith for and during her natural life, remainder in-fee to the children to be begotten by her' husband, James L. Smith, and in default of any children then in-fee to the heirs equally, of John L. Smith, reserving a vendor’s lien to secure the payment of the $500.00 so to be paid in saddles and also the payment of the said annuity. Said property so conveyed was a lot in Buckhannon, on Locust street, containing about one-half acre. By deed dated the 24th of November, 1877, John R. Blair, administrator of the will annexed of I. N. Bennett, in consideration of $200.00, of which $66.67 was paid in hand, the residue in three equal annual payments, for which a vendor’s lien was retained, conveyed to said May Smith a certain house and lot on the north side of Main street in the town of Buckhannon. By deed dated the 28th of July, 1891, Joseph C. Smith conveyed
It is alleged in the bill that the said May Smith did not execute her notes as recited in the said first deed and did not pay the said $500.00 in saddles or in any other manner to John L. Smith; but that the same had been paid to said John L. Smith in saddles or money belonging to James L. Smith, since the year 1882, and that the said annuity had likewise been paid by him,. that May Smith had never had the means to pay said $500.00 or the $25.00, except with the money and means derived from her said husband, and that said conveyance of September 15, 1876, was made with intent to hinder, delay and defraud creditors of John L. Smith and James L. Smith, of which intent May Smith had notice, and that since plaintiffs cause of action had accrued said James L. Smith, out of his own means, and 'with the intent to hinder, delay and defraud his creditors, made valuable improvements on said lot, worth not less than $500.00, and That May Smith had notice of such fraudulent intent with which such improvements were made. The bill further alleges that the lot purchased from Blair, administration, was purchased with, the means of James L. Smith, and that he was the equitable owner thereof; that May Smith never had the means with which to buy or pay for the same, and that said lot was
At December rules, 1895, the- defendants, James L. Smith, May Smith, Floyd G-. Smith and John L. Smith, each filed an answer to said bill denying all fraud and fraudulent intent or notice of any fraud or such intent. James L. Smith denied the allegations of the bill, that he had for the past thirteen years carried on in Buclchannon a thriving and prosperous business in 'the name of May Smith as a saddler and large dealer in saddle supplies and other thriving employments he had carried on in the same time in. connection with his said business and by reason of his skill, thrift and energy he had accumulated a large sum of money over and above all the expenses of himself and family since plaintiff’s causo of action arose; that he did not work as saddler or engage in -(he saddlery business for her, but for Charles M. Smith, and that he had not made, since the plaintiff’s cause of action accrued, more than was necessary to support his family, and that he only had what the law allowed ‘ him to hold as exempt; that John L. Smith was respondent’s father, who had a right to dispose of his estate upon his death to suit himself; that the $500.00 mentioned in the deed of September 15, 1876, was a donation from said John L. Smith to May Smith, respondent’s wife; that May Smith executed to John L. Smith the five notes in the deed mentioned; that said John L. Smith was paid the first, second, third and fourth notes at or about their respective maturities, and that at or about the maturity of the fifth not John L. Smith gave the same to May Smith, denied that he had any right, title or interest, legal or equitable in the house and lot conveyed by said deed; admitted that he paid to Blair the $200.00 for the lot conveyed by him to May, the 24th of November, 1877, which he intended as a gift to his wife; that he was at that time practically out of debt and had a right to do so; that plaintiff’s cause of action had not accrued until many years thereafter;
At thé November rules, 1897, plaintiff filed an amended bill alleging by way of amendment that the said James L. Smith,
On the 5th of March, 1898, the record shows that the following order was entered in the cause: “This day came the parties by their attorneys and by consent of all the parties represented by counsel the pleading and proofs are closed and this cause is submitted for a final adjudication and leave is given the parties who may so elect to file written arguments herein, and thereupon Mr. Woods, counsel for the plaintiff, filed his 'written argument and the court takes time to consider of his decree herein.”
Immediately preceding the order just quoted there appears Copied in the record, but without any date, the same order with the words “represented by counsel” left out. On the 17th of-February, 1899, May Smith and James L. Smith filed their demurrer to the amended bill, assigning reasons therefore although the order filing the demurrer only refers to it as the demurrer of May Smith and in the same order the said May Smith, James L. Smith and O. L. Eohrbaugh each filed his separate answer to the amended bill and leave was given to the
The said demurrer and three several answers were excepted to hy plaintiff because interposed and filed after the consent order closing the pleading -and proofs and submitting the cause for final adjudication and the answer of 0. L. Rohrbaugh was excepted to for the further reason that it was not signed by counsel and was filed without authority. On the 12th of June, 1889, the court having considered the exceptions endorsed by the plaintiff to the demurrer and to the answers of said James L. Smith, May Smith and 0. L. Rohrbaugh, sustained the said exceptions as to the demurrer and as to the answers of James L. Smith and May Smith; but overruled the same as to the answer of 0. L. Rohrbaugh, and leave was granted plaintiff, at any time wtihin sixty days to examine said Rohrbaugh upon reasonable notice to him and to May Smith and James L. Smith.
William Post tendered his answer to the amended bill setting up his deed of trust made by May Smith and her husband, dated the 3rd day of November, 1896, to G. M. Fleming, trustee, conveying two parcels of real estate in the town of Bucldhannon, the one on Main street, known as the “Blair lot,” the other situate on Locust street, the same conveyed by John L. Smith and wife by deed dated the 15th of September, 1876, to secure the payment of a loan of $330.00, and averring that his said deed of trust was an abiding lien upon said properties and that the $330.00 was for money loaned in good faith to said May Smith, and that he was entitled to be paid in full out of the proceeds of the sale of said properties.
Depositions were taken and filed in the cause, and on the 15th of June, 1900:
“This cause came on this day to be heard upon the original bill and exhibits herewith filed October Rules, 1895, taken for confessed against all of the defendants, process duly executed upon all of the defendants, proceedings at rules regularly had and matured, upon the separate answer thereto of Floyd G. Smith, May Smith, James L. Smith and the answer of John L. Smith, praying for the enforcement of his vendor’s lien for an annuity of $25.00 upon the Locust street house and lot in Buckhannon, conveyed to May Smith September 15, 1876, and general replication to each of said answers, and upon all former
The defendants filed cross assignments of error as follows: The court erred in overruling their demurrer to the amended bill; in sustaining appellant’s exception to the several answers .of May Smith and James L. Smith to the amended bill; in decreeing to appellant $100.00 as a charge upon the Locust street house and lot; in making the Post house and lot on Main street liable to appellant’s debt; in making the Blair house and lot liable (to the extent of $600.00) to* the appellant’s debt, or any part of it; in making the lot in Hampton, conveyed to May Smith-by Lulu Williams, liable to appellant’s debt; in making lot Ho. 44 on Cleveland avenue in North Buekhannon, liable to appellant’s debt; in taking the amended bill for confessed against them.
It is insisted by counsel for appellant that the whole controversy in this cause depends “and must hinge upon the consent decree which was entered in the cause by consent of all the parties submitting the cause and closing the pleading and proofs upon the amended bill, which then stood taken for confessed against every single defendant thereto.” At the time of the entering of the consent decree the only parties, defendant, vrho had appeared in the cause were James L. Smith, May-Smith, Floyd G-. Smith and John L. Smith, who had appeared
It is well settled as to the effect of a consent decree or order, as said in Morris v. Peyton, 29 W. Va. 201, page 212: “As such a decree is not the judgment of the court upon the merits of the case but the act of the parties to the suit, it is obvious, that it cannot be modified, set aside or annulled by any order in the cause made by the court below without the consent of all the parties to the cause, unless set aside during the same term of the court, which would leave matters in the same condition as if it had never been entered. ÍTor can it be appealed from, nor modified by this Court, unless perhaps, it should be so- entirely foreign to the matters in controversy in the cause, that for this or some other reason the court below had no 'jurisdiction or authority to enter any such decree by consent or otherwise.” Manion v. Fahy, 11 W. Va. 482; Rose & Co. v. Brown, 17 W. Va. 649; Seiler v. Union Manufacturing Co., 50 W. Va. 208; 2 Beech. Md. Eq. Pr., sec. 785. That all the parties who had entered appearance prior to the entering of said order was bound thereby there can be no question. The court afterwards permitted the filing of the demurrer to the amended bill by May Smith and James L. Smith and the answers of the same defendants and O. L. Rohrbaugh to the amended bill, which demurrer and answers were excepted to, which exceptions were sustained as to the demurrer and answers of James L. Smith and May Smith; but overruled as to the answer of O. L. Rohr-baugh. The order qualified the consent to the defendants represented by counsel. Neither O. L. Rohrbaugh nor William Post had entered an appearance up to that time. At the final hearing on the 15th day of June, 1900, defendant Post, filed his answer without exception or objection and to which the plaintiff replied generally, from which it would appear that it was not then even claimed that Post was bound by the order.
The case of plaintiff failed as to the said Blair lot, and the> improvements made thereon were only attacked by the amended bill which was filed after the execution of the deed of trust to Post. In order to affect the rights of Post, as pendente lite purchaser as to improvements made on the Blair lot the deed of trust must have been executed subsequent to the .filing of the amended bill attacking said improvements; Woods v. Douglass, decided at this term. Post has a valid lien upon the property convoyed by the trust deed and prior to the lion of plaintiff; but, why the amount of the Post debt should be deducted from the $600.00 dragged in favor of plaintiff- upon the improvements upon the Blair lot is hard to understand, or why it should be paid out of that particular part of the property. The doctrine of marshalling assets does not apply here; there are no two funds or two properties involved where one creditor has two funds and another but one for security; the Blair lot and the improvements thereon constitute one property and Post’s trust is a lien upon the whole, and prior to plaintiff’s charge upon the improvements, but amply sufficient to pay both claims, that is, Post’s claim in full and the $600.00 only in case this one property should prove insufficient to pay both, then Post could be required to go upon the Locust street lot for any residue; but, it is contended on the other hand, I suppose, because it is -shown by the deposition of William Post, that the money he loaned May Smith went into the improvements on the Blair
The court erred in providing in the decree that the trust deed of Post should be deducted out of the $600.00 allowed plaintiff as the value of said improvements. It is claimed as error to make the charge of $100.00 in favor of plaintiff upon the improvements on the Locust street house and lot subject to the vendor’s lien thereon in favor of John L. Smith. John L. Smith conveyed to May Smith the Locust street property, reserving his vendor’s lien thereon to secure the payment of an annuity of $25.00. This annuity had accumulated until at the date of the decree it amounted to $971.70, which was a valid lien upon said property and superior to all other liens. Of course any improvements that were placed upon the property became liable to said lien and hence his security was enhanced to the extent of the value thereof, and the appellant raises the same question here as in relation to ’the Post deed of trust on the Blair property; he also raises the same question in relation to the vendor’s lien assigned by Post to C. P. Rohr-baugh and by O. P. Rohrbaugh to O. L. Rohrbaugh. The latter furnished the money to his father to pay the last purchase note from William Post, which with interest amounted to $560.00. C. P. Rohrbaugh took an assignment from Post of the note to himself and afterward assigned the same to O. L. Rohrbaugh, in whose favor the decree was rendered enforcing his vendor’s lien to pay said note. Rohrbaugh said when his father assigned the note to him he had taken as collateral security a life policy on the life of his father far $2,500.00, and it is contended by plaintiff that he should be required to get his money out of the life insurance polio/ 'and not out of the Post property. The taking of said colateral security was a
It is contended by appellant that it was error to permit O. L. Rohrbaugh to file his answer after the consent decree was en.tered and not to sustain the exceptions endorsed upon the answer. These assignments have been sufficiently answered in discussing the said consent decree.
Rohrbaugh had put in no appearance prior to the making of his answer and was not bound by the consent decree. Counsel for appellant contends that because the answer of O. L. Rohr-baugh is in the same, hand-writing or by the same counsel as are the answers of defendants, James L. Smith and May Smith, he must have been represented by counsel at the time the consent order was made. This, by no means follows; his employment of counsel must date from the time he verified his answer and his appearance in the cause from its filing. It is also said that it was error to decree in favor of- Rohrbaugh as assignee of C. P. Rohrbaugh when the amended bill stood taken for confessed against C. P. Rohrbaugh. The answer of O. L. Rohrbaugh was sufficient upon which to establish his claim without reference to the status of the elder Rohrbaugh, who really had! no interest in the matter and never had any. Exception is taken by appellant to the deposition of O. L. Rohrbaugh because unreasonably protracted and delayed by many continuances thereof from day to day.
Tlnintih liad duo notice of the time and place of beginning the'taking ifei-eof, yet lie entirely ignored the matter and entered no appearance on the day set for the taking, nor at any other time and tin non-appearance of the witness is reasonably and sufficiently explained in his deposition. The plaintiff was not prejudiced by the taking of the deposition at the time
It is insisted by appellant that the court erred in decreeing any purchase money on the Locust street house and lot., in favor of John L. Smith, without decreeing that petitioner was entitled to be substituted to the $500.00 lien for purchase money, paid by James L. Smith. It appears that a lien was reserved for the payment of five notes of $100.00 each, to be paid in saddles; it further appears that four of said notes were paid as they came due, by James L. Smith, and that the last of said notes was paid a year or so before the difficulty between James L. Smith and R. Gr. Smith, with plaintiff, Myllius, which occurred on the 10th day of [February, 1883, out of which plaintiff’s cause of action arose. It appears from the original bill that plaintiff’s action of trespass against the Smiths’ was instituted on the 15th of [February, 1883, and the last note fell due September 15, 1881, so that all of said notes must have been paid some time prior to the time when plaintiff’s cause of action arose. The lien reserved by John L. Smith, to secure the annuity of $25.00 is superior to all other liens upon the Locust street property. The assignment of appellant that the court erred in decreeing no more than $100.00 as a charge upon the Locust street property is not well taken because that is as much as is proven to be the value of the improvements placed upon it by James L. Smith, after plaintiff had a cause of action against him.
As to the cross assignments of error, the first, second and third go to the action of the court in overruling the demurrer of the defendants, James L. Smith and May Smith, and in sustaining appellant’s exception to the answer of said May Smith and James L. Smith, to the amended bill and the tenth in taking the amended bill for confessed. These parties were both bound by the consent order entered closing the pleading and proofs and submitted the cause. The fourth assignment goes to the $100.00 decreed in favor of appellant, as a charge upon the Locust street house and lot, and the fifth, sixth, seventh and eighth go to the decree affecting the Post house and lot, on Main street; with $600.00 improvements on the Blair lot and the other lots mentioned as being liable to appellant’s
Quite a mass of testimony was taken in the case and it appears that up to the time of the difficulty between the plaintiff and the defendants, Bloyd G-. and James L. Smith, said James L. Smith was carrying on a profitable business in the town of Buckhannon, after which difficulty he became very suddenly insolvent and his wife, who had never engaged in any business before, and was shown to have had but little property, as suddenly began to carry on the same business that James L. Smith had been carrying on, he conducting the same in her name. It is shown that she borrowed considerable sums of money from different parties at various times and that there were paid'to her sums for rent and board, T large part of which rents were paid to her by her husband, James L. Smith, and it is shown by her own testimony that out of the rents paid to her by her husband she paid on sonic of the lots purchased; but it is not clearly and definitely shown that the properties which were made liable to the plaintiff’s debts by the decree were paid by her out of her own funds derived from others than her husband. Upon a careful inspection of all the evidence it appears that the decree of the circuit court, is fully sustained in all respects except, where it makes the $600.00 allowed to plaintiff as a charge upon the improvements on the Blair lot subject to be reduced by the sum of $460.20 with interest to be paid to Wm. Post, in which respect the decree is modified by requiring the whole of said $600.00 with its interest to be charged against said improvements in favor of plaintiff, and the whole decree with such modification is affirmed.
Modified.