31 W. Va. 473 | W. Va. | 1888
This is an appeal from a decree of the Circuit Court of Taylor county, pronounced April 2,1886, in the suit of La-vina See and J. J. Miller against Nicholas Rogers and others, sustaining the demurrer of the defendants to the plaintiffs’ bill, and dismissing the same.
It seems to me the facts thus alleged in the bill show sufficient ground to eutitle the plaintiffs to relief. The appellees insist that the demurrer to the bill was properly sustained upon two grounds: First. Because the bill, and exhibits made part thereof, show that there was already pending in the same court a suit in which the real estate of Deck & Rogers was sought to be subjected to the satisfaction of the debts of said firm, among which debts were included those of these plaintiffs, and that, therefore, this suit was wholly unnecessary. Whatever may be said as to the propriety of bringing this suit pending the other suit referred to, this is not a ground for demurrer to the bill. Our statuie provides that if, during the pendency of a creditors’ suit, another creditor or lienholder should bring a suit on his claim, the court may enjoin him, and require him to assert his lien in the pending suit. Chapter 189, § 7, Code. Or the court may make such order in the cause as may seem proper. Bilmyer v. Sherman, 23 W. Va. 656.
The second ground, and the one chiefly relied upon by the appellees to sustain the action of the Circuit Court, is that the bill does not show any grounds for the relief sought by
The proper mode of proceeding in such case is by petition addressed to the judge of the court of bankruptcy, properly entitled in the cause, and duly verified. As the granting the order for such sale is not a matter of course, the petition should set forth the facts to justify the application, and state what persons have liens, incumbrances, or interests in the property. Upon the hearing of such application, the court may grant an order for the sale of the property free from in-cumbrance, and when the sale is made the controversy is transferred to the fund which then represents the property-Whenever the assignee sells without such order, he can only sell subject to the incumbrance, and does not give to the purchaser any better right or title than he himself had. The purchaser gets simply the interest of the bankrupt in the property, and nothing more. Bump. Bankr. (10th ed.) 141, 142; In re McClellan, 1 N. B. S. 389; Mc Cance v. Taylor, 10 Gratt. 580; Beall v. Walker, 26 W. Va. 741.
According to these authorities, if we concede that the bankrupt court had the power to sell the Rogers moiety of the real estate, it could not do so without an order made by the court for such sale, after due application and notice to Rogers. There is nothing in the facts stated in the bill, or
REVERSED. REMANDED.