| W. Va. | Nov 28, 1896
Parsons made a deed of trust on land to Maxwell, as trustee, to secure a note to Snider. Messenger owned a judgment later as a lien than the deed of trust, and brought a chancery suit in Mineral county to enforce his judgment against the land embraced in the trust, and to convene the liens upon it, making Parsons and Maxwell defendants as to their rights under said trust. After Parsons and Maxwell had been served with process in the Messenger suit, they sold the realty conveyed by the deed of trust, and, the sale not producing enough to pay the debt, Snider brought an action before a justice to get judgment for the balance, when Parsons brought a chancery suit in Tucker county to enjoin the prosecution of the suit before the justice, to set aside the sale under the deed of trust, and punish said Snider and Maxwell for their contempt in making it pending the Mineral county suit. Upon answers by Snider and Maxwell, and demurrer and motion to dissolve the injunction, an order was made overruling the motion to dissolve
We can only review the case as it arises upon the motion to dissolve the injunction. The overruling a demurrer merely is not appealable action. Buehler v. Cheuvront, 15 W. Va. 479" court="W. Va." date_filed="1879-08-23" href="https://app.midpage.ai/document/buehler-bonbright--co-v-cheuvront-6592118?utm_source=webapp" opinion_id="6592118">15 W. Va. 479. Nor is the action of the court sending the case to'Mineral appealable. But the hearing on the motion to dissolve practically hears the case on the demurrer. It is clear that Snider had right to sue for the balance of his debt. Indeed, if he had not sold under the trust, he could sue at law, as the existence of the trust made only a lien on the land, and he had a right to both sue at law and enforce his trust at the same time. So it would seem at first the injunction stopping the action at law ought to have been dissolved; but a second thought suggests that, if Snider be allowed to go on to judgment, it would be a finality, and it might turn out on the final hearing that the sale would be set aside, and the land being resold would bring the whole debt. Therefore a dissolution of the injunction would seem improper. But shall the injunction be retained preventing the creditor from having the security which a judgment would give him, thus denying him his right to resort to his legal remedy, which we stated above he has? I think not. He should have been required to confess a judgment in the law action as a condition for the granting, and, as that was omitted, as a condition for the continuance of the injunction, providing in the order requiring such confession that the judgment should be confessed “subject to be dealt with as this court shall direct” —that is, the chancery court. Miller v. Miller, 25 W. Va 495. Whether, when a party asks an injunction against proceedings in an action at law, such confession should be required, depends on the sound, not arbitrary, discretion of the court. The plaintiff’s bill did not deny the Snider debt, but admitted it, and only claimed that the land had been sold pending the Messenger chancery suit, which placed the sale under a cloud, producing a sacrifice; and that if the sale should be set aside, and a resale had, there would not be the balance of the debt unpaid for which Snider asked judgment. It í’emained tobe seen whether the
The defendants say that notice of sale under the trust had been given before service of process in the suit. No matter. It is true that, where there are two courts, and each has jurisdiction, that which first takes charge of the subject has preference to go on to judgment, and its judgment will be the conclusive one, disposing rightly of the property before it, and giving preferable title. 12 Am. & Eng. Enc. Law, 292; Gay v. Iron Co. (Ala.) 11 South. 353; Chapin v. James, 23 Am. Rep. 412. But the action of the trustee in giving notice of sale did not have the effect of a court’s taking first jurisdiction. It seems, then, that the circuit court of Mineral took possession of the land to administer it for the benefit of lienors, and was alone authorized to sell it, and the trustee could not sell it. This would be so on general principles; but I regard it as strengthened by the fact, as to such a suit, that section 7, chapter 139, Code, says that “if, after the commencement of such suit any lienholder commence any other suit or proceeding in or out of court to enforce a lieu claimed by him on the real estate * * * sought to be enforced by such suit,” he may be enjoined, and forced to come in and get relief through the suit; showing the design of the legislature to make such suit the sole means of administering the prop
We are cited to § 474 Perry on Trusts for the proposition that trustees are free to act though a suit has been brought to administer the trust until a decree, but after decree they can only act by direction of the court, as until then the suit may be dismissed, or the court refuse to take charge of the trust. That refers to a different class of trusts, as will appear from reading the entire section; trusts where the entire administration of them is before the court, not a mere mortgage or deed of trust creating a lien; and moreover, the peculiar character of a suit under Code c. 139, s. 7, makes it from the start as if a decree assuming-charge of the subject had been entered; and the very letter prohibits other proceedings by lienors from the very commencement of the suit. Under the statute, the Mineral court might have enjoined the sale; but, it not having done so, after it the circuit court of Tucker had lawful jurisdic-diction for a bill to set it aside. Ve do not consider the order of transfer reviewable, if erroneous.
James H. Snider, the purchaser under the trustee, is a necessary party, as he holds colorable legal title, and as merely purchaser is a necessary party.