Neely v. Jones

May 1, 1880

Reporters:: ,
Before:: Green

Green, President,

delivered the opinion of the Court:

The first enquiry presented by the record is, whether the original bill in this cause was fatally defective on demurrer. This bill states that Neely, the sheriff of Doddridge county, paid to the plaintiffs in several judgments against the defendant, Thomas S. Jones, on which executions had issued, the amount of those judgments; and the defendant, Thomas S. Jones, having a tract of land, on which these judgments were a lien, Neely, the sheriff, by this bill claims that he is entitled to be substituted to the rights of the plaintiffs in these judgments, who were co-plaintiffs with him in this cause, and to enforce the same out of said lands. The judgments were rendered in 1855; and this suit was instituted in 1858.

SylIabus *• It is well settled that a stranger, who pays the debt 0f another without his knowledge and authority, cannot sue the debtor for money paid for his use, unless the debtor has ratified the act of the- stranger by promising to repay him the amount, or in some other manner. See Beach v. Vanderburgh, 10 Johns. 361; Jones v. Wilson, 3 Johns. 434; Menderick v. Hopkins, 8 Johns. 436; Overseers of Walkill v. Overseers of Mamahating, 14 Johns. 87; Lipscomb’s adm’r v. Littlepage, 1 H. & M. 453; Harrison v. Hicks, 1 Porter (Ala.) 423; Garter v. Black, 4 Dev. & Bat. 425. These cases show, that a sheriff or other officer, who has or has had an execution process in his hands, if he pays the judgment or claim without the *636request or authority of the defendant, where it is not afterwards approved or ratified by the defendant, is regarded precisely as any other stranger would be regarded and he can not bring an action of assumpsit to recover of the defendant the amount so paid by him.

Syllabus 2. The next enquiry is: Does such a payment discharge and satisfy the original debt, so that no suit cau thereafter be brought for the original debt, or if it be an execution, so that it cannot afterward be enforced in any manner? There have been cases in which it has been stated by the court, that such a payment by a stranger absolutely extinguished the debt; and the inference to be drawn from them is, that the debt is by such unauthorized payment utterly extinguished at law or in equity. See Sanford v. McClean, 3 Paige 122; Banta v. Gormo et al., 1 Sandf. 385, 386; Douglass v. Fagg, 8 Leigh 601, 602. But these views are not in other cases approved ; and it has been decided, that a payment of a debt by a stranger without the authority expressed or implied of the debtor is no discharge of the debt, unless the payment. is subsequently in some manner .ratified by the debtor, but whenever ratified, it will relate back to the date of the payment and have the same effect as if it had been expressly authorized by the debtor, and therefore it may be ratified even after suit is brought upon it; and the debtor’s relying upon it as a payment is such a ratification. See Simpson v. Eggington, 10 Exchq. 845, 848; Kemp et al. v. Balls, 10 Exchq. 610; Belshaw v. Bush, 11 C. B. (73 Eng. Com. Law. R.) 207; Whiting, use of Sun Mutual Insurance Co. v. Independent Mutual Insurance Co., 15 Md. 314; Leavitt and Lee, ex’rs of Hans Wilson v. Morrow, 6 Ohio St. 71; Webster and Smith v. Wyster, 1 Stew. (Ala.) 184.

From these decisions it would seem to follow as a necessary consequence, that, if after the stranger pays a debt the debtor ratifies the payment, as by relying on this payment as a payment when sued upon the debt, or in any orher manner, he would ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍be liable in an action of *637assumpsit brought by the stranger against him for money paid at his request for his use, the subsequent ratification being equivalent to a previous request. See Lipscomb, adm’r, v. Litilepage, 1 H. & M. 453.

But if the debtor instead of ratifying the payment of his debt by the stranger should repudiate this payment by a stranger of his debt, which he might well do, because he disputed that he was bound for the original obligation, or because he himself had paid it, or did not for any reason owe the debt, and for many other conceivable reasons, then the payment by the stranger could not operate as a discharge of the debt, but the debt would still continue to have an existence after the payment by the stranger. The legal right of action would of course remain in the original creditor, and the suit at law would necessarily be in the name of the original creditor. But as the original creditor had received full payment of the claim from the stranger, it seems to me that he would be under an implied obligation to transfer the debt to the stranger, after the debtor would not ratify the payment and thus extinguish the debt. For if under these circumstances a court of equity would not regard the stranger as the equitable owner of the debt, the result would be that the creditor could make it out of the debtor, after it had been paid in full by the stranger; and thus the creditor would be twice paid his debt, while the stranger would have no one to whom he could look for the repayment of what he had paid out. This result would not only be inequitable, but contrary to .the obvious implied understanding bet vveen the creditor and the stranger when the debt was paid. It is obvious that the stranger did not mean to present’ the creditor with the amount paid, for it was made as a payment of the debt, and not given as a present. And if it can not operate as a payment, because of the debtor’s refusal to recognize it as a payment, the general object, which the parties had in view, would under such circumstances be carried out to the extent to which it would under such circum*638stances be capable of being carried out, by the creditor assigning the debt to the stranger. And under these circumstances, it seems to me, a court of equity would, when the debtor refused to ratify the payment, imply that there was such contract, and the rights of the parties would be the same, as though the agreement had been originally, that the payment by the stranger to the creditor shall operate as a full discharge of the debt, if the debtor would ratify it as a payment, and if he would not, and it could not therefore so operate, then that the creditor would transfer to the stranger his right to the debt.

Syllabus 3. Syllabus 4. So understood, if the payment was not ratified by the debtor, the stranger, who would then be the equitable owner of the debt, could sue at law for it in the name of the original creditor for his own use. It is true that the debtor might defeat this action by pleading the payment made by the stranger to the creditor as a discharge of the debt. For he would have the right, as we have seen, to ratify this payment even after suit; nor would his right so to do be affected by his refusal before suit to so ratify it; for a principal may, after he has refused to ratify the act of a person acting as his agent, change his mind and ratify the act; and whenever he does so, it relates back to the doing of the act, and operates just as if he had previously authorized the doing of the act. But if the debtor thus defeated the action, it would follow that the stranger could then bring against him an action of as-sumpsit for money paid to his creditor at his request; for this ratification would be the equivalent of a previous request to the stranger to pay the debt to his creditor. If however instead of bringing a suit at law in the name of the original creditor for his use the stranger chose, he could institute his suit in equity as the equitable owner of the debt; and if the debtor should deprive ju of an equitable right to the debt by answering that he m ratified and approved the payment of the debt by ti. stranger, and it was then extinguished, this very answer would show the liability of the debtor to refund *639to the stranger the amount he had paid for him to the creditor with interest; and a court of equity having the parties all before it and the facts disclosed by the pleadings would not turn the stranger over to another common law suit against the delbtor, but, to avoid multiplicity of suits, would administer justice by at once decreeing the payment to the stranger of the amount he had paid for the debtor and the interest thereon, unless some just defence or sets-off appeared.

These conclusions are, I think, not only the legitimate result of the authorities I have before cited, but are, I think, sustained by other decisions more directly. It is true, that it has been frequently decided, that it is only in cases where the person paying the debt stands in the situation of a surety, or is compelled to pay in order to protect his own interests, that a court of equity substitutes him in the place of the creditor as a matter of course without any agreement to that effect. See Jannes v. Stephens, 2 Pat. & H. 11; Douglass v. Fagg, 8 Leigh 588, 602; Swann v. Patterson, 7 Md. 164; The Bank of the United States v. Marston, 2 Broch. 254; Burr v. Smith, 21 Barb. 262.

But it must not be inferred from these decisions that the right of substitution arises from a supposed contract between the principal debtor and his surety. As Chancellor Kent says in Hays v. Ward, 4 Johns. Chy. 130, “This doctrine does not belong merely to the civil law s/stem; it is equally a well settled principle of the English law, that a surety will be entitled to évery remedy, which the principal creditor has, to enforce every security, and to stand in the place of the creditor, and have those securities transferred to him, and to avail himself of those securities against the debtor. This right stands not upon contract, but upon the same principle of natural justice upon which one surety is entitled to contribution against another.” Lord Brougham speaking of this right of substitution in Hodgson v. Shaw, 3 Myl. & K. 183, said : “ The rule here is undoubted, and is founded *640on the plainest principles of natural justice, that the ‘surety paying off the debt ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍shall stand in the place of the creditor, and have all the rights he has for the purposes of obtaining his reimbursement. It is scarcely possible to put this right of substitution too high ; and the right results more from equity than from contractor quasi contract, unless in so far as the known equity may be supposed to be imported into any transaction, and so to raise a contract by implication.”

The right of substitution therefore does not arise from any supposed contract between the principal debtor and his sureties; and one is entitled to avail himself of this right, who is compelled to pay a debt for which he is not primarily responsible, though he may not stand in relation lo the principal debtor strictly as a security; as when he guarantees a debt, for which he is not bound, at the instance of the creditor and not the debtor, and though this guarantee was made without the knowledge or consent of the debtor. See Mathews v. Aiken, 1 Com. 595; Peake v. Estate of Darwin. 25 Vt. 32; Carter v. Jones, 5 Ired. Eq. 197; Elhiton v. Newman, 8 Harris (20 Pa. St.) 281.

It is true that the syllabus in Carter v. Jones, 5 Ired. Eq. 196, states in broad terms, that “a person, who pays off a bond due to a creditor without the request of the debtor express or implied, cannot recover from the debtor at law. Put in equity he is considered as the equitable purchaser of the bond, and is therefore entitled to relief against the debtor.” But this statement is not justified by the decision actually rendered in that case, and is not supported by the authorities. In that case the stranger, when he paid off the bond, was compelled to pay it off, having previously guaranteed its payment, it is true without the consent or knowledge of the original obli-gor. It really therefore resembles closely the case of Mathews v. Aiken, 1 Com. 595.

Syllabus 5. The true basis of these decisions is, that a stranger may purchase a debt of a creditor without the knowledge *641or consent of the debtor; and the debt may be expressly assigned to the stranger; and if it is the design of the’ stranger to purchase the debt, and if the money is paid by him and received by the creditor with the design that it shall operate as a 1 purchase, it will so operate, and the transaction will be regarded as an equitable transfer of the debt; and where the stranger has guaranteed the debt at the instance of the creditor, and afterwards pays on his guarantee the amount ofthe debt to the creditor, there will under these circumstances be an implied contract to transfer the debt, which will operate very much as a substitute, though it has a somewhat different origin, that is, an implied contract which is regarded as an equitable assignment. But where a stranger simply pays a debt, the presumption is that he expects the debtor to repay him the money he has advanced, and no implication can justly arise, that from the mere payment it was understood or impliedly agreed with the creditor that the debt and all its securities should be transferred absolutely to him. If the debtor refuses to’ ratify the payment which the stranger has made for him, then, as the debt is really unpaid and belongs still legally to the creditor, a fair implication arises that it is held for the benefit of the stranger. It has accordingly been frequently asserted by courts, that a stranger paying the debt of another will not be subrogated to the creditor’s rights without an agreement to that effect. See Swann v. Patterson, 7 Md. 164; The Bank of the United States v. Marston, 2 Broch. 254; Burr v. Smith, 21 Barb. 262; Douglass v. Fagg, 8 Leigh 602.

Of course the stranger, at the time he pays to the creditor the amount of the debt, may take an assignment of it without the consent or knowledge of the debtor; and if, when he pays the amount, there be an express agreement that the debt is to be assigned to‘the stranger, this would amount to an equitable assignment of the debt, though no formal assignment was ever executed; for this understanding shows, that the stranger did not pay *642the debt, but really purchased it, which of course he could do without the consent of the debtor. But unless such express agreement is proven, the payment of the debt by the stranger, if subsequently ratified by the debtor, from the time of its ratification extinguishes the debt at law and in equity. But if the debtor refuses to ratify the payment made by the stranger, the debt is not extinguished in law or equity. Its legal existence continues in the original creditor; but the equitable title to the debt vests in the stranger.

Syllabus 6. It has been said that public policy forbids that a sheriff or other officer, who pays a judgment, on which the execution is or has been in his hands, should be placed on the footing of a stranger who pays the judgment, and that such sheriff or other officer, whether he takes an assignment of the judgment or not, is not entitled to the benefit of the lien created by the judgment on the debtor’s lands, at least as against other creditors having liens by judgment or otherwise, or as against purchasers of the land for valuable consideration without notice that the sheriff had such claim. See The People v. Onondaga, 19 Wend. 79; Clevinger v. Miller, 27 Gratt. 740; Feamster et al. v. Withrow, trustee et al., 12 W. Va. 659. I cannot see that public policy forbids the sheriff, who pays a judgment under these circumstances, to occupy the same position so far as the debtor himself is concerned, and to have against him the same rights, as a stranger would have who paid the judgment, whether there was an equitable assignment made at the time or not, his rights varying according to the facts as do those of the stranger; and there is nothing in either of these cases, which would lead to the conclusion, that as against the debtor himself the sheriff would not occupy the same position and have the same rights as a stranger under the same circumstances.

In the case before this court the other judgment-creditors of the debtor have not been made parties to this suit in any manner; and they not being before the court, *643it is not proper to express any opinion on the question, whether the sheriff because of his paying these judg-’ ments or of his taking an equitable assignment of them can enforce them for his use against the lands of the debtor to the prejudice of what would otherwise be the rights of these judgment-creditors on the lands of the debtor. In the case of Clevinger et al. v. Miller, 27 Gratt. 740, it was decided, that “a sheriff or other officer who pays an execution in his hands for collection, without an assignment at the time of the judgment on which it ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍is founded, or of the debt, is not entitled to be subrogated to the liens of the creditor whose debt he has paid, as against other creditors having liens by judgment or otherwise.” In the case of The People, ex relatione Luther v. Onondaga, C. P., 19 Wend. 79, there had been an actual assignment of the judgment to the sheriff, when he paid the amount to the plaintiff, and yet under the circumstances of that case the court held, the rights of the sheriff as’the assignee of this judgment to make the same out of the real estate of the debtor must yield to the right of subsequent judgment-creditors to first make their debts out of such real estate. In the absence from this court of the subsequent judgment-creditors it is not proper for us to determine, whether these decisions are properly applicable to this case, or whether the law is correctly laid down in these cases.

*644Syllabus 4. Syllabus 5, *643I will now apply the law to the case before us. The original bill states, that Neely, the sheriff of Doddridge county, paid for Jones and for Jones and Cain to the several judgment-creditors certain judgments, which had been rendered against Jones and against Jones and Cain, and he asks to be substituted to the rights of these judgment-creditors, who were made co-plaintiffs, and to be decreed to have a lien on a certain tract of land of Jones’s, and asks that this lien may be enforced by a sale of this tract ofland to pay these judgments. The bill doesnot state, that these payments of these judgments by the sheriff Neely had not been ratified or approved by the *644debtors, Jones and Cain. If they had been so ratified and approved, the plaintiff could on the facts stated in the bill have no right to bring this chancery suit, for by the statements of the bill, if the payment of their judgments by the sheriff had been ratified by the debtor, the judgments would be all satisfied in law and equity, and the sheriff, Neely,- would have only had a right to sue at common law Jones and Cain for the monies he had paid for them, and which must be held to have been paid at their request, if the payment had been afterwards ratified. It was therefore necessary, in order that the original bill should be good, to allege that these payments by the sheriff were made without the request or authority of the judgment-debtors, and that they had never ratified the payments, and so the judgments were unsatisfied and for the use of-Neely, the sheriff. With these allegations in it the original bill would have been good; but its prayer too should have been modified. It should have prayed, that if the defendants did not by their answers ratify these payments, the land should be sold to pay off these judgments, and if they did by their answers ratify these payments, then that there should be formal decrees in favor of the sheriff, Neely, for the amount of monies he had so paid for the defendants. But as there was no allegation in the original bill, that these payments had not been made with the approval of the defendants, or that they had never ratified them, the demurrer to this original bill should have been sustained. Before the defendants appeared at April rules, 1859, the plaintiffs filed an amended bill, in which it was alleged, that at the time the sheriff, Neely, paid the several judgments, the judgment-creditors severally agreed to transfer and assign to him their several judgments, and such agreements constituted the inducement and consideration to make the payment to them severally. And that afterwards they were accordingly so transferred. The prayer of this amended bill like the prayer of the original was, that the tract of *645land of the defendant, Jones, might be sold to pay these judgments. There is no allegation that the assignments were actually made prior to the institution of this suit, nor was it necessary to make such allegation, for the agreement to transfer these judgments, if Neely would pay the amount due on them, when this amount was paid, operated as an equitable assignment of these judgments. It was no fault in the amended bill to make the judgment-creditors and their assignee, Neely, co-plaintiffs in the suit. An assignor and an assignee may unite in a suit as co-plaintiffs to recover a debt, Ryann v. Anderson, 3 Mad. 175. Nor did the amended bill attempt, as is claimed, to so vary the suit as to make in effect a new and different cause of action from that attempted to be set forth in the original bill. Both bills sought to subject the tract of land belonging to the defendant, Jones, to pay the same judgments and for the benefit of the same party. The court therefore in the decree of October 23, 1859, properly overruled the demurrer to the amended bill; but the court erred in overruling the demurrer to the original bill. The order of October 28, which overruled the demurrer to the amended bill, properly gave the defendants sixty days within which to answer the amended bill; but all the other proceedings in the cause are entirely irregular.

SyllabHS 7 This order of October 28, 1859, on the plaintiff’s motion, without the answers being filed, or given, without awaiting the sixty days, directed a commissioner to ascertain the amount due to the plaintiff, Neely, and also such other liens as existed against this tract of land. The commissioner served a notice on none but the parties to the suit, and did not advertise for others, who had liens on this land, to present their liens. But though no notice of these proceedings was published, yet the commissioner reports, that there are three other judgments against the defendant, Jones, which are liens on his land ; one in favor of Moses Jennings, one in favor of F. M. F. Smith, and a third in favor of C. J. Stuart, one of which *646is a prior lien to one of the judgments audited in favor of the plaintiff, Neely. No evidence of any sort appears to have been taken before the commissioner in settling the accounts between the plaintiff, Neely, and the defendant, Jones; but it appears after the report had been returned, numerous depositions were taken in reference to credits claimed by Jones. He filed his answei to the original and amended bills also long after this report had been made, in which he denies all the material allegations contained in them. The cause was then by consent removed to the circuit court of Harrison county. There is copied into the record an amended bill number two, as it is called, which alleges, that after the plaintiffs obtained all their judgments, Thomas S. Jones on December 25, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍1867, conveyed the tract of land, sought to be charged with the payment of these judgments, to his two sons fraudulently and without any consideration ; and it prays that this deed may ‘be set aside. There is also in the papers in the cause au answer by Thomas S. Jones to this amended bill, denying all fraud and alleging that this deed was made for a valuable consideration, and also an amended answer to the original and first amended bill; but there is no order of the court authorizing the filing of this second amended bill or this answer thereto, and it is impossible to tell when they were filed.

The commissioner in his report of March 15, 1864, stated that Thomas S. Jones had on December 25, 1857, conveyed this tract of land to his sons, and it is presumed therefore, that this amended bill was put in the papers of the cause after that date. A decree entered January 5, 1876, speaks of the cause being heard on amended bills and answers thereto, and this is the only recognition in the record of the existence of this bill and answer. But this report of March 15, 1864, stated also,that there were three other judgment-creditors, two of whom held judgments of the county court, in which the suit was brought, and where the land sought to be sold lay, who had liens on this tract of land, and the amount of their *647liens were also reported. Yet the plaintiffs in their amended bill making the sons of Thomas S. Jones parties defendant do not make these creditors, reported to have liens on this tract of land, parties defendant, and though by the commissioner’s report the lien of one of these parties was prior in time and superior obviously to a portion of the plaintiffs’ claim, yet the court in its decree of January 5, 1876, after correcting the report in some particulars, in which it had been excepted to so far as it related to the plaintiffs’ debt, expressly sustains the exception to this report so far as the three other judgments were concerned, because these judgment-creditors were not parties to the suit, and then proceeds to direct the sale of the tract of land to satisfy the debts of the plaintiffs only, and- after the sale was made by the decree of June 2, 1877, it applied the whole proceeds of the sale of the land to the payment of the plaintiffs’ debt only.

It would certainly have been improper for the court to render any decree in favor of these three persons, who were not parties to the suit either formally or informally. See Snyder v. Brown et al., 3 W. Va. 143. But it is equally obvious, that as they had an interest known to the court in the proceeds of the sale of the tract of land about to be sold, the court could not render a decree, ordering the sale and afterwards disposing of the proceeds, without their having been made parties in some way to the cause. It has been questioned, whether it was necessary to make persons, occupying the position these persons did, formally parties to such a suit, and whether it was not sufficient for a party, who files a bill to subject the land of a living debtor to the satisfaction of a judgment, to make all other judgment-creditors parties to the suit by the plaintiff suing on behalf of himself and all other judgment-creditors. In this Court it would seem to have been held in the case of Hoffman et al. v. Shields, 4 W. Va. 490, that it was necessary to make all such judgment-creditors formally parties. In this case there was another error fatal to. the appellees, and the *648court does not appear to have maturely considered this question. We cannot follow to its full extent the apparent decision in this case, because the judgments of all the courts in the State, as well as the judgments of all justices of the peace, are liens on the lands of the debtor, and it would be impracticable, if not impossible, for the plaintiff, who desired to enforce his judgment-lien, to make all the judgment-creditors in the State formal parties defendant in his bill, as he could not ascertain who they were. They being an undefined class having alike interest with the plaintiff, he ought on general principles to be allowed to sue on behalf of himself and all other judgment-creditors without making them formal parties.

Syllabus 8. Syllabus 9. Syllabus 11. But as it is practicable for the plaintiff by the use of ordinary diligence to ascertain all creditors who have judgments rendered by the courts of record in the counties, in which lie the lands, which he seeks to subject to sale, and also all creditors who have obtained judgments from courts of record or from justices in any part of the State and had them docketed on the judgment lien docket of said county or counties, of his living debtor, we see no reason, why he should not be required to make all such judgment-creditors formal parties defendant, the reason for permitting the filing of a creditor’s bill not applying to such judgment-creditors; and if he should omit to make any such judgment-creditor a formal party defendant, unless objection be made specially to proceeding in the cause till such party is made a formal defendant by the amendment of the bill, this court would not regard such omission as a ground for reversing a decree of a circuit court, if the bill had been brought on behalf of the plaintiff and all other judgment-creditors, as such omitted party defendant would be regarded as an informal party plaintiff. Even if the creditor had omitted to state in his bill, that he sued on behalf of himself and all other judgment creditors except those made defendants. Yet,.if he proceed just as if he had made this allegations, and in the order of reference the *649commissioner was directed to call before him by publication all persons having liens on the land by judgment, and audit their claims, this court would regard this as substantially the same thing, or though the plaintiff had in his bill staled that he sued on behalf of himself and all judgment-creditors except those made defendants. The bill in Marling v. Robrecht et al., 13 W. Va., 440, failed to state that the suit was brought on behalf of the plaintiff and all other judgment-creditors, but the decree of the court calling them before the commissioners by publication was treated as making this a good creditor’s bill. In the present case the three judgment creditors, not parties to this suit, are not informal parties plaintiffs, the bill not being filed on behalf of the plaintiff and all other judgment-creditors, the court therefore ought not to have rendered the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍decree of January 5, 1876, based on a commissioner’s report made when the parties, directly interested in this report, were not before the court in any manner.

Syllabus 7 It is of course unnecessary to consider the exceptions to the report, or whether the report would have been liable to exceptions, had the proper parties been before the court. When the order of reference was made, even the legal owners of the tract of land sought to be sold were not parties to the suit. The decree of October 28, 1859, under which this report was made, so far as it referred the cause to a commissioner at all, was equally erroneous. For the demurrer to the plaintiffs’ bill and amended bill having been overruled, no other order or decree could properly be made in the cause, till the time had elapsed, within which the court had ordered the defendants to answer the bill, yet this decree on its face shows, that the court proceeded immediately on overruling the defendants’ demurrer to order this reference to a commissioner. This order could not have been properly made, till the sixty days had elapsed, within which the defendants were allowed to file their answer; and if the material facts in the bill and amended bill had been *650denied by the answerj no order of reference should have been made, till the plaintiffs prove they had a valid claim, and if they failed to do so, this suit should have been dismissed without making any order of reference.

I am therefore of opinion, that the whole of the decree of October 28, 1859, except that portion of it which overrules the demurrers of the defendants to the plaintiffs5 amended bill, must be reversed, set aside and annulled ; and also the decree of January 5, 1876, ahd also the whole of the decree of June 2, 1877, except that portion of it which confirms the sale and report thereof made by commissioner Lewis Haymond, which under the provision of section eight of chapter one hundred and thirty two of the Code of West Virginia cannot be set aside because of the reversal of the decree ordering the sale. And this Court proceeding to render such decree as the court below ought to have rendered doth sustain the demurrer of the defendants to the original bill, and doth remand the cause to the circuit court of Harrison county with instructions to permit the plaintiffs within a reasonable time to be fixed by that court to amend their bill, and sue on behalf of themselves and all other judment-creditors of Thomas S. Jones, and to make as defendants to the same Moses Jennings, F. M. F. Smith, C. J. Stuart, William S. Jones and Thomas S. Jones as sole heir at law of Aaron S. Jones, deceased, and all other proper parties, and with directions to cause the amount due from Floyd Neely, the purchaser of the land sold by Lewis Haymond, commissioner, to be collected and paid into the court and then a proper deed to be made to said Floyd Neely for said land, the purchase-money to be disposed of by the court to whatever parties may hereafter appear to be entitled thereto; and further to proceed with this cause according to the principles laid down in this opinion, and further according to the rules governing courts of equity.

The Other Judges Concurred.

Decrees Reversed. Cause Remanded.