| W. Va. | Dec 18, 1894
These were three separate suits in equity brought in the Circuit Court of Tucker County — one by Osborn, one by II. II. Taylor, and the other by W. T. Stout — against Mrs. M. A. Glasscock, to subject to the payment of their several debts certain property named and described as her
Thereupon the court on the application of L. J. ITyre, who claimed the saw-mill and asked to be made a party defendant, gave him leave to suspend the sale by delivering to the officer a proper suspending bond in penalty equal to double the value of the saw-mill according to section 4 of chapter 107 of the Code. This bond in the penalty of one thousand dollars, Hyre, with his sureties executed and delivered to the officer on the 15th day of April, 1892. An injunction had been granted restraining Coberly, the trnstee, from selling the saw-mill, on the 16th of September, 1891. On the 22d September, 1891, the injunction-bond was given ; and the summons with the restraining order indorsed was served on Coberly, the trustee, on the 5th day of October, 1891.
On the 1st Monday in April, 1892, L. J. ITyre filed his petition against W. TI. Taylor, M. A. Glasscock and V. A. Glasscock as defendimts, praying that it might be filed in the chancery cause of Taylor and treated and read as a petition for the purposes of trying the right of property to the steam saw-mill and a cross-bill and answer to plaintiff Taylor’s bill; that Taylor and the other defendants should
In this petition he sets up that Mrs. Glasscock by her husband, W. M. Glasscock, acting as her agent by deed of trust dated 28th February, 1890, conveyed or transferred the mill then in Randolph county to D. E. Coberly, trustee, to secure to A. J. Elbon the payment of the sum of seven hundred and eighty live dollars, in various payments; that the mill was removed to Tucker county on the -day of February, 1891, where it was on the 5th day of October, 1891, sold by the trustee to petitioner Hyre for the sum of two hundred ail’d fifty dollars; that he paid the same, and the mill was then and there delivered to him, with absolute and full control, which he has since so held up to that time; and that/of all these transactions H. II. Taylor and M. A. Glasscock had full notice. He further alleges, that the demand of plaintiff Taylor, on which his judgment was based, had been fully paid off and satisfied long before the institution of Taylor’s suit; that the suit was brought in pursuance of a fraudulent combination on the part of Taylor and Mrs. Glasscock aided by her husband to sell the saw-mill of petitioner and turn over through Taylor the proceeds to Mrs. Glasscock, for the express purpose of defrauding petitioner out of his property.
The parties appeared and answered denying the fraud alleged, and the various issues were made up. Many depositions were taken, and other evidence put iu. And, neither party requiring a jury, the four cases (Hyre’s petition being treated as one) came on to be heard together on the 14th day of March, 1893, all on various papers formerly filed and read, including a lis pendens in each of the three causes, recorded in the clerk’s office of the County Court of Tucker county on the 6th day of April, 1891, and embracing a'clescription of the steam saw-mill, etc. mentioned in the bills. The bill of injunction of Osborn set out the saw-mill as the separate property of Mrs. Glasscock, and the deed of trust thereon to Coberly, trustee, and al
The court, on full hearing, decided against the claimant Tiyre dismissing his petition with costs; also ascertained the respective amounts Stout and Osborn were entitled to recover respectively against said mill as the separate estate of Mrs. Glasscock; entered its final decree for the sale of the mill under execution, etc.
From these decrees, Hyre obtained this appeal, claiming that his title to the mill, as a purchaser thereof at the sale made by trustee, Coberly, under the deed of trust, was good and valid, as against the claims of these three plaintiffs as creditor of Mrs. Martha A. Glasscock, the grantor in the deed of trust, and that the court erred in holding-otherwise.
The material facts seem to he as follows : Bernard W. Fisher and wife, by deed dated and acknowledged on the 5th day of March, 1891, conveyed to the defendant Martha A. Glasscock a certain tract of land situate in Randolph county, containing ninety eight acres. This deed was admitted to record on the 3d day of August, 1891. By deed dated 1st day of August, 1891, Martha A. Glasscock and her husband, W. M. Glasscock, sold and conveyed the tract of ninety eight acres to her sister-in-law, V. A. Glasscock, of Reno county, state of Kansas, in consideration of the recited sum of one thousand dollars cash in hand paid. This deed also was admitted to record on the 3d day of August, 1891. On the 28th day of February, 1890, A. J. Elbon sold to Martha A. Glasscock a portable saw-mill then located in Randolph county ; and by deed of trust purporting to be made by W. M. Glasscock, agent for Martha A. Glasscock, but signed, sealed, and acknowledged by W. M. Glasscock, on the 1st day of March, 1890, this mill was conveyed to D. E. Coberly, trustee, to secure to Elbon the payment of seven hundred and eighty five dollars to be paid as follows ;
As.the pleadings and proceedings in the four cases determine some of the important questions presented in this record, it becomes necessary to refer to them with some particularity of detail.
On the 6th day of August, 1891, the appellee IT. IT. Taylor sued out his summons to answer a bill in equity against Martha A. Glasscock, returnable to first Monday in September, 1891, which was returned “Executed” on 17th August, 1891. On first Monday in October, 1891, plaintiff Taylor filed his bill in equity against defendants Martha A. Glasscock and V. A. Glasscock. In this hill he alleges; that on the 3rd day of January, 1890, defendant M. A. Glasscock and her husband, W. M. Glasscock, gave their certain single bill, whereby they jointly and severally promised to pay plaintiff the sum of four hundred and seventy dollars one day after date, on which a suit at law was pending against W. M. Glasscock — that Martha A. Glasscock was the owner of a large amount of personal property consisting of a steam engine and saw-mill with all appliances complete, then situated in the town of Hu-lings in Tucker county, also cows, horses, household, and kitchen furniture, and probably other property — that she was the owner of ninety eight acres of land situate in Tucker county — that the purchase-money for which Fisher
Some time before the 5th day of October, 1891 (I infer, about the 22d day of August, 1891) E. E. Coberly, as trustee, took possession of the steam saw-mill near the town of Hulings, where the mill was located, and, by written notice, advertised that in pursuance of the deed of trust he would on the 5th day of October, 1891, on the premises, proceed to sell the mill at public auction for cash.
On the 17th day of September, 1891, appellee W. F. Stout instituted his suit in equity in Tucker Circuit Court against Martha A. Glasscock, W. M. Glasscock, A. J. Elbon, H. H. Taylor, W. B. Fisher, A. H. Osborn, E. D. Talbott, and W. B. Maxwell, trustee, and on the 1st Monday in October, 1891, filed his bill seeking to enforce payment out of the separate estate of Martha A. Glasscock of a note executed to plaintiff by her and her husband for one hundred and thirty five dollars,- dated on August 9, 1890, due in thirty days; also that one of the notes for one hundred and fifteen dollars due July 15, 1890, which was executed by Mrs. Glasscock to A. J. Elton for the saw-mill, and one of those secured by
On the 16th day of September plaintiff A. II. Osborn presented to the Circuit Court judge, in vacation his bill of complaint against M. A. Glasscock, W. M. Glasscock, A. J. Elbon and D. E. Coberly, trustee, alleging that Martha A. Glasscock and her husband had on April 22, 1891, executed to plaintiff their note for one hundred and eighty four dollars and eighty cents, due day after date. lie makes the same charges as to the conveyance of ninety eight acres to Y. A. Glasscock being made with intent to defraud, hinder, and delay plaintiffs and other creditors. He says that he instituted his suit on the 10th day of August, 1891, and on that day filed his notice of Us pendens, which is exhibited with his bill. But that suit was against Martha A. Glasscock alone. He charges the giving of the deed of trust on the steam saw-mill; that the deed of trust
The injunction was on the 16th day of September, 1891, awarded by the judge in vacation, to take effect on giving bond, etc. The bond was given on the 80th day of September, 1891, and the summons issued on that day, with the injunction order indorsed thereon. It was served on M. A. Glasscock and W. A. Glasscock on the 5th day of October, 1891, and on I). E. Coberly, the trustee, on the same day, but not in person, but by leaving a copy for him, with a member of his family, etc., H. E. Coberly not being found there. It turns out that he had made the sale of the mill on that day to L. J. Hyre, and did not receive the summons until he returned home from the sale, in the evening of that day.
On the 14th day of March, 1893, the following decree, dismissing the petition of L. J. Hyre, from which he obtained this appeal, was entered: The decree dismisses the petition of L. J. Hyre, with costs, and decrees against defendant Mrs. M. A. Glasscock, in favor of plaintiff W. F. Stout and plaintiff A. H. Osborn, for their claims, awarding executions against her separate estate, having already decreed against her, in favor of plaintiff Taylor, but does not specify in what order they are entitled to be paid out of the proceeds of the sale of the mill.
The main ground of error assigned by appellant, Hyre, is that the court decided that he had no claim or right to
“This deed, made this 28th day of Feb., in theyearl890, between W. M. Glasscock, agent for M. A. Glasscock, his wife, of the one part, and D. B. Coberly, the trustee, of the other part, witnessetli, that the said W. M. Glasscock, agent for M. A. Glasscock, doth grant unto the said D. E. Coberly, the trustee, the following jsroperty (describing the steam saw-mill) to secure to A. J. Elbon the purchase-money, viz., seven hundred and eighty five dollars in various payments, the last one, of ninety-five dollars, to be paid Dec. 15, 1890 ; and, if any of said notes be not paid when due, the trustee shall sell said mill in thirty days, by being notified by the said A. J. Elbon, at public auction, to the highest bidder for cash.
“Witness the following signatures and seals:
“Signed and sealed by M. A. Glasscock and by W. M. Glasscock, and duly and formally acknowledged by Mrs. Glasscock, as her act and deed, after having it fully ex: plained to her, and also by the husband, on the 1st day of March, 1890, in Randolph county, and there admitted to record on the 1st day of May, 1890, and in Tucker county, to which the mill had been removed in Feb., 1891, on the 22nd day of Aug. 1891.”
The deed of trust, though informal, is certainly valid as the deed of Mrs. Glasscock. The most informal instrument will be regarded, in law, as mortgage, if it shows a sale was made as security, and here this clearly appears on the face of this instrument. See Jones, Chat. Mortg. § 34; Comron v. Standland, 103 N.C. 207" court="N.C." date_filed="1889-02-05" href="https://app.midpage.ai/document/comron-v--standland-3672355?utm_source=webapp" opinion_id="3672355">103 N. C. 207 (9 S. E. Rep. 317); Merrill v. Ressler, 37 Minn. 82" court="Minn." date_filed="1887-06-13" href="https://app.midpage.ai/document/merrill-v-ressler-7965349?utm_source=webapp" opinion_id="7965349">37 Minn. 82 (33 N. W. Rep. 117.) Here Mrs. Glasscock signed, scaled, delivered and duly acknowledged this instrument as her own proper act and deed, in which she was named as grantor, but by an agent. If this deed of trust of Mrs. Martha A. Glasscock, had been a conveyance of real estate, it would have passed nothing, for the certificate of acknowledgement is wholly wanting in what was then an essential part, viz., that she had willingly exe
The second objection made to the title of Hyre is that the steam-mill was removed to Tucker county in February, 1891, and the deed of trust was not, within three months after such removal, admitted to record in Tucker county— not until the 22d day of August, 1891, after the expiration of six months, instead of three ; and, therefore, by section 7 of chapter 74 of the Code, the deed of trust, for so long as it was not admitted to record in Tucker county, was void as to plaintiff Taylor, and the other creditors of Mrs. Glasscock; and by section 9 of chapter 74 the word “creditors” extends to and embraces all creditors who, but for the deed or writing would have had a right to subject the property conveyed to their debts. Taylor’s suit was instituted against Mrs. M. A. Glasscock by issuing summons on the 6th day of'August, 1891, which was served on the 17th day of August, 1891, and his lis pendens, in which he specifically sets forth and describes the steam saw-mill, was admitted to record on the 6th day of August, 1891. The bill was filed on the first Monday in October, 1891; summons returned, “Executed on Mrs. M. A. Glasscock,” the debtor; and order of publication taken against Mrs. V. A. Glasscock, the grantee of the ninety eight acres. The law requiring a memorandum of the Us pendens to be recorded was introduced as part of the Code of 1849, without the recommendation of- the revisors (see section 5, c 186, Code 1849. Kee Code, Ed. 1860, c. 186, § 5) attachment having been added by Act 1850-1; section 13, c. 139, present law (Code, Ed. 1891). It is seen that it is confined to real
Our first case on the subject of lis pendens is Lyne v. Jackson, 1 Rand. (Va. 1822) 114, soon followed by Newman v. Chapman (1823) 2 Rand. (Va.) 93, which has remained a leading case on the subject, and, together with Murray v. Ballou, 1 Johns. Ch’y 566, is very frequently cited. IniVew-man v. Chapman, it is said that the rule of lis pendens is founded upon its necessity to give effects to the judgments and proceedings of a court of justice; that without such a rule they would be rendered aboritive, where the recovery of specific property is the object. The reason and necessity of the application of the rule of lis pendens to personal property, with certain exceptions, such as negotiable securities, would seem to be at least as great as its application to real property. See Freem. Judgm. § 194, and note; Newman v. Chapman, 14 Am. Dec. 766, 779.
Yet quite a number of authorities deny its application to personal property. In Benn. Lis Pend. c. 5, p. 126 et seq., there is quite a full citation and review of authorities on this point; the author reaching the conclusion that the weight of authority is in favor of the application of the rule to personal property, with certain exceptions, such as negotiable securities, etc. French v. Loyal Co., 5 Leigh, 627, was decided in 1834, and held, among other things, (1) that the Us pendens could only affect a purchaser of the subject in controversy, who purchased from a party to the suit; (2) that the Us pendens must be judiciously and diligently prosecuted.
In Bank v. Craig (1835) 6 Leigh, 399, it was held that the effect of the rule is to subject the pendente lite purchaser of the subject of the suit to a decree only in that suit, not in another.
In Smith v. Browne (1838) 9 Leigh, 293, the inference is that in a proper case it applied to personal property.
In Stout v. Vause (1842) 1 Rob. (Va.) 169, an amended bill was filed ; but before that was done the absent defendant, whose land was sought to be subjected to sale, return-
The case of Phillips v. Williams (1848) 5 Gratt. 259" court="Va." date_filed="1848-10-15" href="https://app.midpage.ai/document/philips-v-williams-8481383?utm_source=webapp" opinion_id="8481383">5 Gratt. 259, was a case of long standing, and, no doubt, of hardship on the ■pendente lite purchaser, in which the land was charged with an annuity, and was directed to bo sold, without noticing such purchaser. . This case, no doubt, had something to do with the act requiring the recordation of a memorandum of the Us pendens.
From the case of Carrington v. Didier, (1851) 8 Gratt. 260, the inference might be drawn that the rule was regarded as applying tp personal property, and there is no doubt that it was held applicable to slaves. See Smith v. Browne (1838) 9 Leigh, 293. I do not regard this point in the case as important, so far as appellant L. J. ITyre is concerned, for his attempted purchase was at a sale which the trustee, Coberly, had been enjoined from making.
The order of injunction was served on Coberly, the trustee, on the evening of the day on which he made the sale, but after it had been made; but the evidence shows that after he had taken possession for the purpose of selling, and had advertised the sale, but before the sale, he was told of the bill of injunction, and that the order of injunction restraining the sale under the deed of trust had been granted. That such actual notice of the restraining order is of binding fource, though not served, is well settled, though not for proceeding against him for contempt. See 2 Daniell, Ch’y Pr. (6th Am. Ed.) 1684, note a. It is sufficient for the court to know that the person enjoined had actual knowledge of the order. 2 High, Inj. §§ 1422, 1444; Mead v. Norris, 21 Wis. 310" court="Wis." date_filed="1867-01-15" href="https://app.midpage.ai/document/mead-v-norris-6599693?utm_source=webapp" opinion_id="6599693">21 Wis. 310. The sale made by Trustee Coberly was therefore made in violation of the order of injunction entered and perfected on the 30th day of September, 1891. See Turner v. Gatewood, 8 B. Mon. 613" court="Ky. Ct. App." date_filed="1848-09-29" href="https://app.midpage.ai/document/turner-v-gatewood-7129089?utm_source=webapp" opinion_id="7129089">8 B. Mon. 613; Byne v. Byne, 54 Ga. 257" court="Ga." date_filed="1875-01-15" href="https://app.midpage.ai/document/byne-v-byne-5557478?utm_source=webapp" opinion_id="5557478">54 Ga. 257. So that the sale or attempted sale by the trustee should have been held for nought, as made or attempted to be made in violation of the injunction ; and the mill should be sold, under the direction
Is there enough in this record by which to determine who is entitled? Is the trustee, Coberly, to be treated as pendente lite purchaser, as though his purchase was made on the 22d day of August, 1891, when it was first recorded in Tucker county, where the mill then was? In the case of W. F. Stout, the summons was issued ou the 17th day of September, 1891, and served on Mrs. Glasscock on the 5th day of October, 1891, when the bill was filed, and this was alter the deed of trust had been recorded. In the case of TI. II. Taylor, it was issued on the 6th day of August 1891, served ou the 17th day of August, 1891, and bill filed-day of September. In the case of A. II. Osborn the summons was issued ou the 10th day of August, 1891, served on the 17th day of August, and the bill of injunction was filed and an order of injunction entered on the 80th day of September, 1891. Section 7 of chaprer 74 of the Code provides that the writing shall not be void, in respect to the interests of any married woman, * * * if, before the end of three months after the disability shall cease, the writing be recorded in the county to which the property has been removed. This saving can have no application to this case, for the reason that she is the grantor in the deed of trust, not the beneficiary, and it relates to her separate estate. When the trust-deed was admitted to record in Tucker county, ou the 22d day of August, 1891, Taylor and Osborn were creditors with pending suits, who, but for the deed of trust, would have a right to subject the sawmill to their debts; and the statute makes it voidable as to such creditors, not having been recorded iu Tucker county within three months after the removal of the saw-mill thereto. They had commenced the only legal proceedings the law gave them to subject the mill to the satisfaction of their debts. It was then in the possession of Hyre and Constable, who had rented it of their debtor, Mrs. Glasscock; and it só remained until after the injunction against the sale under the deeds of trust was served and became effective. The subject of the suit was a'specific thing, necessarily to be affected by decrees in their suits; and the mill was in
Radford v. Carwile (1879) 13 W. Va. 572" court="W. Va." date_filed="1879-04-19" href="https://app.midpage.ai/document/radford-v-carwile-6591979?utm_source=webapp" opinion_id="6591979">13 W. Va. 572, and Hughes v. Hamilton (1882) 19 W. Va. 366" court="W. Va." date_filed="1882-04-15" href="https://app.midpage.ai/document/hughes--co-v-hamilton-6592463?utm_source=webapp" opinion_id="6592463">19 W. Va. 366, and Bruff v. Thompson (1888) 31 W. Va. (16 S.E. 352" court="Ga." date_filed="1892-11-14" href="https://app.midpage.ai/document/central-railroad--banking-co-v-strickland-5564873?utm_source=webapp" opinion_id="5564873">16 S. E. Rep. 352) were decided under chapter 66 of the Oode, as it is in the edition of 1887, which left the right to subject a married woman’s separate estate to the payment of her charges thereon, as a purely equitable one, enforceable only in a court of equity.
In Hughes v. Hamilton, it was held that such proceeding is in the nature of a proceeding in rem.' By this the court did not mean to say that it was a technical proceeding to determine the liability of a specific thing to the payment of plaintiff’s charge or claim, no matter who might be the owner, and having jurisdiction binding all the world by the decree; hut they used it in a common, secondry sense— that it was a direct proceeding, inter partes, to subject a particular thing, as the defendant’s separate estate, to the payment of plaintiff’s charge thereon. Payment out of the particular thing was all he could ask, as he could get no personal decree agaiust her; but such decree would not be binding, -in any sense, on all the world. See 2 Freem. Judgm. §§ 606, 607. The court also held in that case that a general creditor of a married woman has no lien or charge upon the separate estate prior to the institution of his suit in equity to subject such separate estate to the payment of his debt, but that such debt, after suit brought, becomes a quasi lien, at least, upon such estate, and for the satisfaction thereof, and that such creditors are allowed priority in the order of time in which they bring their suits. What the court means, I infer, is that it is an incipient or inchoate lien or charge, which becomes fixed and determined by final decree, and that the rule of Us pendens, while it ap
In Bruff v. Thompson, there is an interesting discussion of the subject. If it is regarded as in the nature of an equitable lien, then the general rule is that it does not create a lien upon tangible personal property, unless the creditor procures the appointment of a receiver or in some way causes the sequestration of the property. See 2-Beach, Mod. Eq. Jur. § 927. That, as we have seen, was done in this case, so far as it could, in any view, be regarded as necessary. On the 12th day of June, 1891, as the day on which it took effect, chapter 66 was re-enacted so as to read as now found in the Code (Ed. 1891) and section 16, for the first time introduced, reads as follows: “A claim against the separate estate of a married woman for the payment of which she has charged the same shall be enforced only in a court of equity in rem and not in personam Under this law these suits were brought I take for granted that this was only declaratory, and that the term “in rem” was used in its secondary sense, already commented upon. And, apart from this case, the character of such quasi lien, if it means anything more than a Us pendens, taken in connection with the peculiarity of the suit, need not be further discussed; for by an act taking effect on the 16th day of February, 1893, chapter 66 of the Code was again amended and re-enacted. See chapters 3, 43, Acts 1893.
These important amendments, in manifest advancement of the property rights of married women, remove several defects in the law, as heretofore construed; bringing her nearer, in her rights and liabilities, and in the remedies and methods of procedure of her creditors, to the condition of a feme sole. They took effect some twenty six days before the entering of the decrcee here complained of, but have no bearing on this case, as far as as I can see.
"What may still be clue on the deed of trust does not appear to have been ascertained. That should be done, and the mill should be sold, under the direction of the court, and the proceeds applied to the debts of Taylor, Osborn, those claiming as beneficiaries under the deed of trust, and of plaintiff Stout, in the order and according to the principles herein stated.