12 W. Va. 541 | W. Va. | 1878
delivered the opinion of the Court:
The principal question presented by the record is, did the plaintiff, Nicholas Smith, have a lien on any of the
The next question is, whether under the contract of April 23, 1870, an implied equitable lien arose. A court
The only remaining question is, did the court err in ordering a sale of the Capehart farm. The bill states that about half of this farm had been sold under a decree of the court for $9,811.00, of which upwards of $7,000.00 went to pay the unpaid purchase money due Capehart, and the balance was to be applied to certain judgments against Patton. What were the amounts of these judgments, and to whom due, does not appear. It was obviously improper as this Court has frequently decided to sell land to satisfy such a lien till all prior liens and tlieir priorities had been ascertained. This may have been done in the suit of Capehart v. R. Patton, indefinitely referred to in the bill, but if so, it does not appear in this cause, and unless and until it does, no sale of this land, or of any part of it in this cause could properly be decreed. The record in its present condition does not show satisfactorily whether this debt of $4,500.00 belongs really to N. Smith or to his wife Mrs. Eliza P. Smith, and no issue having been made in reference to this point, I deem it improper at this time to express any opinion on this question. The cause must be remanded to the circuit court of ICanawha county, to be further proceeded with, and the decree for this $4,500.00. debt should be made in favor of one or the other as may
The decree therefore of the circuit court of Kanawha county, rendered on May 17, 1875, must be reversed and annulled, and the appellants must recover of the appel-lee, Nicholas Smith, their costs about their appeal in this Court expended, and this Court proceeding to render such decree as the court below ought to have done, is of opinion, that the debt of $4,500.00 named in the contract of April 23, 1870, filed with the bill, was the balance found due on a settlement of all accounts up to that date, between the plaintiffs and the defendants, B. Patton and wife, and that no accounts or demands of B. Patton or his wife against the plaintiffs, or either of them, prior to that date, can be offset against the said debt and that the same is an equitable lien on one moiety of so much of the land purchased of S. P. Capehart in the bill named, or of the proceeds of sale thereof as may remain after satisfying the amount decreed to be paid to S. P. Capehart in the chancery cause of S. P. Capehart v. Patton and others named in the bill, and that none of the other demands of the plaintiffs or either of them named in the bill, is a lien on any of the lands of the defendants, or any of them, and the court doth therefore adjudge, order and decree, that the said debt of $4,500.00 is a lien on that portion above described, of the said land bought of Cape-hart; and that the bill, so far as it seeks to enforce any claim other than this, be dismissed without prejudice to
Cause Remanded.