43 W. Va. 283 | W. Va. | 1897
0. K. Newlon filed a creditor’s Dill in the Circuit Court of Braxton county to enforce judgment liens against the real estate of L. M. Wade. Much proceedings were had that, after reference and report of commissioner, a. certain house and lots in the town of Sutton, being a small portion of defendant’s property, were decreed to be sold to pay various liens ascertained against the same. From this decree the defendant Wade appeals, and the errors relied lipón by him are contained in the. exceptions to the commissioner’s report, which are in short as follows:
1. That the two nominal plaintiffs in the suit, Newlon and Mansbach, had no right to maintain the same, for the reason that the executions issued on their judgments had
2. A justice of the peace has jurisdiction throughout his county both by the Constitution and statute, and, while he is required to reside in the district for which he is elected, he is authorized to hear and determine cases in other districts of the county. This applies to exception sixth.
8. The seventh and eleventh exceptions, being as to insufficiency of notice, and also the first exception as to the thirty-live dollars credit on O. K. Newlon’s judgment, if not waived by the appellant, may be properly cured in the further progress of the cause, as it will for other reasons have to be recommitted to the same or another commissioner.
4. The various objections to the judgment of J. P. Cole are not well taken. The appellant does not deny liaving-been duly served with process to appear before Justice Oliver in the county of Lewis. But his objections are that the process was served by a special constable. This is provided for under section 80, chapter 50, Code. That
■ 5. The most important question raised is as to whether the commissioner erred in not ascertaining all the real estate of the appellant, and the annual rental value thereof. On the coming in of the commissioner’s report, the demurrer of appellant was sustained to the hill, and it was amended by making new parties plaintiff therein. Appellant then liled his answer, in which he alleged that he was the owner of certain real estate, situated in both Braxton and Gilmer counties, which was subject to the lien of the various judgments in suit, and also that the vendor lien holder was not asking for a sale of the real estate, alone included in the commissioner’s report, and praying that his said real estate, with the rental value, should be ascertained, and that the same be rented for the payment of the judgments. The appellees claim that it was the' duty of the appellant to show before the commissioner the real estate owned by him, and also to show that the rental value thereof was sufficient, to pay the judgment in five years, and his failure excuses the court for noncompliance
The bill alleges that the defendant is the owner of a certain piece of real estate, but does not allege that it is all the real estate owned by him, or that the rents and profits thereof will not pay the judgments against the same within five years. The commissioner was directed to ascertain the real estate of the judgment, debtor, but he does not show' in his report that lie discharged his duty in this respect. He follow's the bill. The judgment debtor excepts for the reason that the commissioner failed to report all his real estatate, and suggests that the records of the county so disclose. It is hot right that a judgment debtor should be harassed by repeated sales of different portions of his real estate, especially if it all wall produce rent sufficient in five years to pay off the judgment liens, and therefore the full extent, together wdth the rental value, thereof, should be ascertained, before a decree for rent or sale thereof is entered. The appellees say that there is no sufficient evidence that the judgment debtor owns other real estate, that the only place that it appears is in the judgment debtor’s answer, to which there is a general replication.
Prior to the present statutory provisions relating to the enforcement of judgment liens, the right to have his land rented rather than sold was a privilege accorded to the judgment debtor when asked by him, and a matter of right demandable at any time. Arnold v. Casner, 22 W. Va. 444, cited. But now it is a condition precedent to the sale of lands for the satisfaction of judgment liens that the real estate — that is, all the debtors real estate liable to such judgment, liens — will not produce rent sufficient vdthin live years to extinguish such judgment liens, and this must affirmatively appear in the pleadings, proofs, or proceedings, and hence it is unnecessary for the judgmeut debtor to ask such relief affirmatively. 'If the plaintiff had alleged in his bill that the real estate set out therein vras all the. real estate ovmed by the judgment debtor, and that the rental value thereof was sufficient to satisfy the judgment liens in five years, the appellant could have controverted the same by a mere denial, which would have cast the burden on the plaintiff of sustaining
2i ever sed.