8 W. Va. 55 | W. Va. | 1874
This is a bill filed by the plaintiff, to compel the making ofa deed, by defendant, John Fisher, to plaintiff. It appears, that John Fisher, in March, 1854, purchased a house and lot, Ho. 23, situate in the town of Elizabeth, Wirt county, of Roland Petty, for $160, of which $100, with interest was to be paid the first day of November, 1859, and $60 with interest to be paid the 1st day of November, 1859, for which two several sums, Fisher-, at the time of the purchase, made to Petty, his two several single bills, and Petty made to Fisher his title bond, binding himself to make to Fisher a deed for the lot. Not long after the purchase, Fisher sold the lot to E. C. Hopkins, he, (Hopkins,) agreeing to j)ay Petty, the whole amount of the purchase money, which Fisher agreed to pay. It seems that Fisher either assigned Petty’s title bond to Hopkins, or made a written contract with him in relation thereto, though the evidence is not clear on the subject. However, it is clear that there was a contract of sale from Fisher to Hopkins, at the price aforesaid. After Hopkins made his purchase, he, by virtue thereof, took possession of the house and lot, and held and occupied it, claiming under his purchase’
After Petty conveyed the lot to Fisher, and before June, 1,1860, he died. Rockhold,in fact, paid Hopkins all his purchase money except $101.64. principal, and that, he retained after he learned that Hopkins had not paid all the purchase money, in order to save himself. It appears that Hopkins held the single bill of Rockhold for said $101.64, and that he brought suit thereon in- the circuit court of Wirt county, and at the April term thereof, 1866, he obtained judgment for the amount thereof, with interest and costs of suit against Rockhold; and upon the judgment an execution issued, and was
About the time John Fisher, paid the debt, Hopkins assigned his judgment against llockhold and Fisher, to C. B. Fisher, without any - consideration passing from C. B. Fisher, to him, and according to the evidence of C. B. Fisher, who seems to be disinterested, Hopkins did not inform’him for what purpose or object he made the assignment. But Hopkins says he intended the money when collected, to be paid by C. B. Fisher to John Fisher. John Fisher was not present when the assignment was made nor does it satisfactorily appear that he had any knowledge of the assignment having been made until after this suit was brought. C. B. Fisher says that the assignment was brought to him by Hopkins in his office already written, on the original transcript of the judgment, and that Hopkins when he handed him the transcript and assignment thereon of the judgment he reques
At the hearing of the cause oil the 9th of May, 1873 the circuit court was of “opinion under the facts and circumstances proven in the cause, the demand for purchase money paid on the two bonds from Fisher to Petty constituted a vendor’s lien on said lot number twenty-three in the hands of the plaintiff at the institution of this suit and adjudged, ordered and decreed, that John Fisher execute and deliver, for recordation, a proper deed to plaintiff, for said lot number twenty-three, with cove- I nants of general warranty &c., and file the same with the papers of the cause within sixty days from the date of the decree and that defendant Hopkins or some person for him pay John Fisher $160, with interest
From this decree the plaintiff has obtained an appeal to this Court.
There are other facts proven in the case, which I have not stated which are not without weight against the plaintiff and his father, in the cause, but I have only stated such as I deem necessary.
Fisher not having made a deed conveying the lot he had a purchase money lien thereon for so much of the purchase money as was due, and unpaid to him, and had the right to enforce the same in a court of equity, against the lot in the hands of the plaintiff. And if his purchase money was paid by offsetting the same against the said forthcoming bond judgment (which does not appear to have been done) then as the forthcoming bond judgment was rendered against Rockhold & Fisher as surety before Rockhold conveyed the lot to Wm. D. Richards, the judgment was at the time of the conveyance, for the indemnity and security of Fisher, as surety, a lien on all the lots conveyed by Rockhold to Wm. D. Richards including said lot namber twenty-three, and as Wm. D. Richards had notice of said lien at the time of his purchase, and the conveyance to him, the said lots were liable to the lien in his hands after the conveyance. And as it appears that plaintiff had notice of said lien, before his purchase and conveyance to him, the said forthcoming bond judgment, is likewise a lien on the lots in his hands, for the indemnity and security of Fisher as surety for the amount thereof. So that whether Fisher’s purchase money was settled by offsetting the said forthcoming bond judgment against it, or not, under the circumstances appearing in this case is immaterial to the plaintiff.
Decree Corrected IN Appellate Court AND Affirmed.