26 W. Va. 686 | W. Va. | 1885
At February rules 1885 the plaintiff filed his bill in the circuit court ofDoddridge county to enforce his vendor’siien on a tract of land sold and conveyed to defendant. On March 20, 1885, a decree was rendered on the bill taken for confessed to sell said land for the payment of the purchase-money, and in the decree the plaintiff “ expressly waived bond and security from the commissioner ” appointed to sell the land. On April 6, 1885, at the same term the defendants appeared and moved to set aside the said decree ordering the sale of said land, which motion the court overruled. Thereupon the defendants tendered their answer and demurrer to plaintiff’s hill and asked leave to file the same, which was ordered to be done; and the complainant filed his replication in writing thereto, to the filing of which the defendants objected, which objection was overruled. The defendants tendered a bill of exceptions to the refusal of the court to set aside the decree and to the refusal to enter a decree prepared by the defendants’ counsel, showing that the court refused to set aside the decree and to refer the cause to a commissioner, &c., which hill the court refused to sign, therefore the defendants’ counsel tendered a bill of exceptions to the refusal of the court to sign the first bill of exceptions, which embraced the first bill; and this the court signed.
The special replication sets up the facts, that many of the liens mentioned in the answer'have been discharged, and that others, if not discharged are barred by the statute of limitation. It admits that.one lien, that of the State v. John Donohue and sureties, of whom complainant was one, will have to be paid in part by plaintiff, but that he has ample property to pay such part, without the property sold to defendants, &c.
From said decrees the defendants appealed.
The first assignment of error is the refusal to set aside the decree of sale upon the filing of the answer at the same term, at which the decree was entered, because the answer showed that there were many judgment-liens against the lands of the plaintiff, and such lienors should have been made defendants to the bill. There is nothing in this assignment, because in a suit to enforce a vendor’s lien it is not error to decree a sale of the land, on which the lien for the purchase-money is reserved, without ascertaining the amount of other liens and their priorities. (Cunningham v. Hedrick, 23 W.
It is also objected, that the court failed to pass upon the demurrer. The appellants were not predjudiced by this, as an inspection of the bill will show, that it is sufficient, and that the demurrer ought to have been overruled.
The third assignment of error is, that the court permitted the special replication to be filed to defendants’ answer. Special replications are discountenanced in chancery pleading, and it is error to permit them to be filed except as the statute requires in certain cases, as this Court has repeatedly held ; but the filing of the special replications did not prejudice the appellants.
The fourth and fifth assignments of error raise the question, whether upon the averment in the answer, “that the lands now owned by the said complainant were not sufficient within themselves to liquidate and discharge the liens set forth in said answer, therefore relief would have to be had against the lands sold to the defendants,” which, it is claimed, was admitted to be true, there being no general replication to the answer, it was the duty of the court to set aside this order of sale and send the cause to a commissioner to ascertain the liens against the land so sold, so that the purchase-money might be applied to the discharge of these liens, and thus save the defendants harmless. Wamsley v. Stalnaker, 24 W. Va. 214 was an injunction to restrain the collection of a judgment on a bond for purchase-money, on the ground that there, were a number of judgments, -which were liens upon the land bought by the defendants of the plaintiff, and the bill specifies them in detail and files wfith the bill copies thereof, exceeding in amount the judgment on the purchase-money-bond; and the bill alleges that those judgments are unpaid, and prays that the plaintiff be forever enjoined from collecting said judgment, and that the various liens, against the lands be reported according to their priorities, and for general relief. The covenants in the deed in that case were much stronger than in this. In addition to the covenant of general warranty (the only covenant here) he covenanted
If it appeared in defendants’ answer, that Neely had not other lands sufficient to satisfy all the liens, and that he was insolvent, a court of equity, before it would order the payment of the purchase-money to him, would provide for the protection of the vendees. This could be done by the payment 'by the vendees of the purchase-money into court, and the retention thereof by the Court, until the liens on the land were discharged; but if all the averments in the answer be taken as true, they do not show, that Neely is insolvent, the averment, that it will be necessary to subject the lands bought by the defendants, not being equivalent to such an averment.’ Even if this were so, the parties could protect themelves, as before indicated, by paying the money into court, and having an order made to protect their interests. The answer shows no reason for arresting the sale of the land, because after sale the order could be made for the protection of the purchaser, by refusing to pay over the money to the plaintiff until the liens on the land were discharged if equity required this to be done. The court did not err in iefusing to set aside the order of sale and refusing to refer the cause to a commissioner.
The court did not err in refusing to sign a bill of exceptions. Bills of exceptions are unknown to chancery practice and pleading. If a bill of exceptions were proper, it could not be taken to a refusal to sign a bill of exceptions. The only way a judge can be compelled to sign a bill of exceptions is by mandamus. (Henry v. Davis, 13 W. Va. 230.)
It would bo very hazardous for a commissioner under a decree authorizing him to sell to receive any money before executing the bond. This clause is intended to prevent commissioners from receiving money under such decree, until the bond is executed; hut the last clause forbids a sale under such decree until the bond is executed, and the certificate of the clerk that such-bond has been given is appended to the notice of sale so that bidders may know, that the law has been complied with in this important respect. The statute is mandatory not directory. It forbids the sale until the statute has been complied with, and if the sale is made without the bond being executed, it may he set aside. The decree therefore, which in terms dispenses with the bond, is necessarily erroneous. It must provide for the bond and fix the penalty thereof, otherwise a bond could not be executed before the clerk. The law requires a bond, and in accordance therewith it has been the practice for decrees to require one and to fix the penalty. Sometimes sales have been made by commissioners without executing bond, and much trouble and loss have been the result; now the statute affords the remedy by declaring no sale shall be made, until bond is executed, &c.
ReveRsed. Remanded.