51 W. Va. 141 | W. Va. | 1902
Mahala A. Johnston was allowed this appeal from several decrees made and entered by the circuit court of Mercer County in the chancery. cause of John W. Smith against A. Gott, administrator, with the will annexed of James D. Johnston, deceased, and several other-persons of whom the appellant is one. The object of said suit was to subject the real estate of the said J ames D. J ohnston to the payment of his debts, it being alleged that there is no personal property out of which the judgment of the plaintiff for the sum of two hundred and fifty-seven dollars and ninety-five cents, with interest and cost, against said Johnston, John W. Pennington and Nicholas Pennington, dated September 4, 1893, can be collected. The bill further shows that said James D. Johnston was the owner of a tract of land containing thirty acres and an undivided one-half of another tract of land which was conveyed to him and Mahala A. Johnston, his wife, by Albert Nash and others. This alleged interest of James D. Johnston in the last named tract of land'which contains one hundred acres is the matter in controversy on this appeal.
By deed dated July 9, 1866, Robert Hall, commissioner, in the case of James R. Kent against James T. Watson’s heirs, conveyed to Mahala Woodall, who afterwards married James D. Johnston, and Frances J. Woodall, sister of Mahala who after-wards married Albert Nash, a tract of land containing two hundred acres, of which the land in controversy here was a part. Long
The cause having been referred to a commissioner of the court for various purposes specified in the order, some of which were to ascertain and report what real estate the said James D. Johnston 'owned at the time of his death, the liens thereon, their amounts and priorities and to whom owing, the commissioner reported that the said James D. Johnston owned one-half of said one hundred acres of land and that the same was assets for the payment of his debts and that the plaintiff and others had judgment liens thereon but that the appellant was entitled to dower therein. This finding of the .commissioner was excepted to. The commissioner returned with his report the depositions of Albert Nash and Frances J. Nash, the grantors in said deed, both of whom testified that said tract of land was one-half of said two hundred acres of land and that said two hundred acres had been purchased by and belonged to Mahala A. Johnston (nee Woodall) and Frances J. Nash (nee Woodall), and that they had simply divided the land by mutual agreement and executed the deeds for that purpose and that Mrs. Johnston did not know until long afterwards that her husband had been made a grantee in her deed. The deposition of Albert Nash was excepted to in part and that of Frances J. Nash in its entirety on the ground that she was incompetent. Why she is consid-
. That the deed conveying to Mahala A. Johnston and Janies I). Johnston said one hundred acre tract of land was one of two deeds executed b}r the co-tenants of the two hundred acre tract of land for the purpose of partitioning the same between them admits of no doubt. It is completely and fully established by the record. Prior to the execution of tliat deed Franes J. Nash was the owner of an undivided one-half of all the two hundred acre tract. The deed executed by herself and her'husband purports to pass the legal title of the whole of said one hundred acres to Mahala A. Johnston and James D. Johnston, although Frances J. Nash was never the owner of but one-half of said one hundred acres. The consideration for that deed was the conveyance by Mahala A. Johnston and her husband of her undivided one-half of the other one hundred acres to Frances J. Nash. Under such circumstances it may be gravely doubted whether any title to any portion of the land passed by this deed to James I). Johnston. It certainly could have passed nothing more Ilian the mere legal title to the undivided half of said one hundred acres leaving the legal and equitable title to one-half in his wife and leaving in her hands the legal and equitable title to the other half. But, as Frances J. Nash held the legal title to but one-half of said one hundred acres and conveyed that one-half to Mahala A. Johnston and James D. Johnston, it would seem upon this theory that James D. Johnston thereby obtained the legal title to only one-fourth of said one hundred acres. However, as stated, there is grave doubt as to whether
It is well settled law in this State that a- judgment creditor can acquire no better right to the estate of the debtor than the debtor himself has when the judgment is recovered. He takes it subject to every liability under which the debtor held it and subject to all the equities which existed in favor of third parties and a court of equity will limit the lien of the judgment to the actual interest which the debtor has in the estate. The leading case on this subject is Snyder v. Martin, 17 W. Va. 276, in which Judges Johnson and Green give it exhaustive consideration, reviewing many authorities, both English and American, Judge Johnson, however, dissenting. Pack v. Hansbarger, 17 W. Va. 324, in which the opinion of the Court was delivered by Judge Haymond, announces the same principle and the subject is there reviewed and discussed at great length. It is reiterated again in Snyder v. Botkin, 37 W. Va. 355, in which Judge English delivered the opinion of the Court. See also Transportation Co. v. Swaney, 48 W. Va. 272, (37 S. E. R. 592); Mercantile Co. v. Ellis & Co., 48 W. Va. 309, (37 S. E. R. 593); Shipe, Cloud & Co. v. Repass, 28 Grat. 716; Floyd, Trustee, v. Hardin, 28 Grat. 401; Freeman on Judgments, s. 357; Brown v. Pierce, 7 Wall. (U. S.) 205; Withers v. Carter, 4 Grat. 407; Biern and Friedman v. Ray, 49 W. Va. 129.
But one question remains undisposed of and that is whether Mrs. Johnston has done anything by which she is estopped from asserting her equitable title to the land against her husband’s creditors. Aside from having permitted the deed to be made
The decrees made and entered in said cause on the 6th day of December, 1898, the 11th day of May, 1899, and the 24th day of February, 1900, in so far as they overrule the exception of Mahala A. Johnston, made on the 4th day of February, 1898, to the commissioner’s report and confirm said report wherein it holds that James D. Johnston was the owner of one-half of said one hundred acre tract of land, adjudge and decree that the same is liable for the debts of said James D. Johnston and appoint commissioners to partition the same and assign the appellant dower therein and file the report of said commissioners and confirm the same and decree a sale of a portion of said one hundred acre tract of land to satisfy the debts of James D.
Reversed.