65 W. Va. 179 | W. Va. | 1909
■ By his bill and the evidence, William L. Shields shows that he took, from D. M. Simonton and wife, by a deed absolute on its face, a conveyance of a house and two lots in the town of Flemington, Taylor county, for the purpose of securing a debt. As will be presently demonstrated, it was in fact a mortgage, which this suit was brought to foreclose. The circuit court pronounced a decree, declaring the deed absolute in fact, as well as form, and dismissed the bill and he has appealed.
A motion to dismiss the appeal is predicated on the fact that Shields, after the entry of the decree and before the allowance of the appeal, conveyed the property to Newton I. Wolf and wife by a general warranty deed. It is said he thereby accepted the benefit of the decree and estopped himself from complaining of it. It does not. bring the case within the prinicple on which dismissals, for failure of jurisdiction, were had in Baker v. Tappan, 56 W. Va. 349, Elbon v. Hambrick, 55 W. Va. 236, State v. Lambert, 52 W. Va. 248, and other cases. There has been no settlement of differences between Shields and Simonton. The former has simply conveyed the property to a third party, and shows by affidavits a contemporaneous agreement to refund the purchase money, in case the land should be sold in this suit and purchased by some person other than himself. If he should buy it himself, his deed would pass the after acquired title by estoppel. He seeks a decree for his debt and extinguishment of Simonton’s equity of redemption, and the transaction between him and Wolf, does not in any way affect-these rights. For these reasons, we overrule the motion.
The controlling facts are undisputed. Simonton and his wife purchased the property from Mrs. Lydia Mason and her husband, subject to a purchase money lien held by J. M. Allen. They paid Mrs. Mason $300.00 which they borrowed, for the purpose,
The only respect in which this deed differs from the ordinary deed absolute on its face is that it contains the following recital : “That for and in consideration of Six Hundred and fifty dollars ($650) paid and to be paid as hereinafter mentioned, that is to sajq the said Shields is to cansel a note of $300, which he holds for money loaned to D. M. Simonton and wife to pay on said house, which note is secured in a Deed of Trust, dated Sept. 12,” 1889, and is to pay the balance of the purchase money due J. M. Allen as provided for in a deed made by J. Mj. Allen
The measure of the relief to which he is entitled is defined in Froidevaux v. Jordon et al, 62 S. E. 686. The mortgage, being treated as a security for money, there being indebtedness due the plaintiff, which he could recover at law, and the equity court having jurisdiction of both the subject matter and the parties, all matters in difference between the parties should be settled and determined by a decree in the cause. No authority need be cited for equity jurisdiction to foreclose a mortgage, nor for power in a court of equity to enforce a legal demand, involved in a cause of action of which such court has full jurisdiction on any ground. Clearty, therefore, the trial court should have entered a personal decree for the amount of the debt, and ordered a sale of the land to satisfy the lien, in default of payment of the debt within a reasonable time.
The notes, evidencing the indebtedness, were executed jointly by D. M. Simonton and -Eebecca J. Simonton, his wife, now dead, and of whose estate Di M. Simonton is administrator. As
Reversed and Remanded.