21 W. Va. 656 | W. Va. | 1883
announced the opinion of the Court:
The appeal before us is from a decree in two causes, which by consent of parties were consolidated and heard together. "We will first consider so much of the decree of October 10, 1879, which was appealed from and which was based in part on the proceedings in the second of these cases heard together and consolidated by consent. This was the cause of C. G. Barrett, and wife against John Buford and Ii. C. Tracewell, trustee. It is obvious, that the circuit court did not err in awarding the injunction to the sale of the Daniel Stone farm of seventy acres, which had been advertised by the trustee, B,. C. Tracewell, under the deed of trust dated April 16, 1877, for the benefit of John Buford. Nor did it err in the decree in that cause made on Marph 17, 1879, when it declared, that this deed of trust from C. G. Barrett and wife to R. C. Tracewell, trustee, was not the act and deed of Sarah Y. Barrett, the wife, but was the deed of C. G. Barrett, the husband. This was obviously a correct conclusion. The certificate on which this deed of trust was admitted to record was as follows:
“ State of West Virginia, Wood County, ss. :
“ Before me, the undersigned, a justice of the peace in and for said county and State, personally came C. G. Barrett and Sarah Y. Barrett, his wife, and acknowledged the execution of the foregoing and annexed deed, bearing date April 16, 1877. And I further certify that I examined, separate and apart from her said husband, Sarah V. Barrett, and she acknowledged that she had voluntarily signed the foregoing deed, and that she did not. wish .to retract the same.
“In witness whereof I have.hereunto set my hand and seal.
“J. P. Teacewbll, J. W. G. [seal.]”
The certificate was sufficient so far as O. G. Barrett, the husband, was concerned. But it was obviously fatally defective so far as it purported to bo a privy examination and certificate, of acknowledgment of this deed of trust on the part
The circuit court therefore properly decided, that the injunction theretofore awarded in this cause be perpetuated as to the rights, interest and estate of said Sarah Y. Barrett in said Daniel Stone farm of seventy acres, and that this deed was properly declared void by the court in said decree, so far as it purported to convey her said interest in said farm. The court also in said decree properly purged the debt secured by said deed of trust of the usurious interest contained in it, the real debt being only six hundred dollars with interest at the rate of six per cent per annum from April 16, 1877; there being no proof in this cause that said loan was a contract made in Ohio. And the said deed of trust was a valid security so far as it conveyed the moiety of said Daniel Stone farm of seventy acres, which belonged to Caleb G. Barrett her husband. The court in said decree properly adjudged, that said injunction to the sale thereof, which had been granted so far as the rights and interest of Caleb G. Barrett in said trust were concerned, being one half thereof, be dissolved except as to said usurious interest, of which the debt had been purged, and it properly decreed, that the defendant, John Buford, do pay unto said Sarah Y. Barrett her costs, about her suit in this behalf expended. This was obviously a final decree in this cause, and completely ended every controversy in this cause.
After this cause was thus ended, the trustee, B. C. Trace-well, sold under the provisions of this deed of trust, the interest of Caleb G. Barrett, it being a half interest in and to this Daniel Stone farm of about seventy acres, for the sum of eight hundred dollars cash to John Buford, and made him a deed therefor dated July 7, 1879, which was duly recorded July 12, 1879. Thereupon Caleb G. Barrett and Sarah Y. Barrett brought another suit against B. 0. Tracewell,trustee, and John Buford, the purchaser, in the circuit court of Wood county asking, that this sale might be set aside and this deed canceled, and that John Buford might be enjoined
The answer of R. C. Tracewell, the trustee, to this bill under oath denies the allegations of the bill and says, that this interest of Caleb G. Barrett was sold pursuant to the provisions of the deed of trust. There being no proof offered of the allegations in the bill, this bill in the decree of October 18, 1879, should have been dismissed, the injunction in this cause being first dissolved, and the plaintiffs, C. G. Barrett and Sarah V. Barrett, should have been decreed to pay to the defendants their costs expended in said second suit against them. But instead of doing this, the court by this decree of October 18, 1879, directed the proceeds arising from said sale, after the payment of the costs of the proceeding in the cause of C. G. Barrett and wife v. R. C. Tracewell and John Buford, and the costs of the sale, to’be paid out in satisfaction of the judgments and other liens on the interest of said Caleb G. Barrett in the said Daniel Stone farm of seventy acres, in the order settled by the report of the commissioner in said cause of Ann R. Tavenner v. C. G. Barrett et als., which was confirmed. This seems to me to be an obvious error in the circuit court.
The first suit of C. G. Barrett and wife v. R. C. Tracewell, trustee, and John Buford had been finally ended by this decree of March 17, 1879, and John Buford by this decree had been properly required to pay the costs of this suit. Yet in this decree of October 18, 1879, the court authorizes in effect, that the trustee, B. C. Tracewell, shall pay the costs of this suit out of the funds arising from the sale of Caleb G. Barrett’s interest in said Daniel Stone farm. Thus really making Caleb G. Barrett pay all the costs of this first suit, in which he had succeeded, and whose costs had been decreed to be paid by said Buford. Again it was an obvious error for the court in this decree of October 18, 1879, which was appealed from to order, that any portion of the purchase-money arising from the sale of said Caleb G. Barrett’s interest in said
We will now examine the decree of October 18, 1879, which was appealed from to ascertain, whether any portions
R is unquestionably true, that a person who is a mere agent in a transaction ought not to be made a party to a bill, as for instance an auctioneer, who has sold an estate the sale being the matter of controversy. See Long v. Colman, 10 Beav. 370; White v. White, 5 Gill. 359. So an agent for the purchase of land is not a proper party to a bill against the principal for a specific performance, although the agent signed the memorandum for the purchase in his own name. See Jones v. Host, 1 H. & M. 470; Kingley v. Young, Coop. Eq. Pl. 42. And it is a good ground of demurrer to the whole bill, that a person, who has no interest in a suit and has no equity against the defendant, is improperly joined as a plaintiff. See Clarkeson v. De Speyster, 3 Paige 336; Little v. Buie, 5 Jones Eq. (N. C.) 10; King v. Galloway, 5 Jones Eq. (N. C.) 128; Wright v. Santa Clara Mining Association of Baltimore, 12 Md. 443; Westfall v. Scott, 20 Ga. 233. But on the other hand there is a class of persons called generally agents, who are nevertheless properly parties to a suit in equity brought by the principal. The agents to which I refer are trustees. The general rule in such cases is, that trustees as well as the cestuis que trust are necessary parties in
But the same rule does not apply to agreements not under seal, where the one party is merely the agent of another, and makes the agreement as such, though in his own name. Tn such case it is not necessary7 in suing to enforce such agreements not under seal or to set them aside in equity to bring the agent before the court, for either in law or in equity the
Applying these principles to the case before us it would seem, that J. T. Tavenner was not only a proper but a necessary party to the bill in this cause. One of its main objects was to enforce a deed of trust, dated August 27, 1877, executed by the defendants Caleb G-. Barrett and Sarah V. Barrett, his wife, to C. B. Tavenner, trustee, to secure three bonds of two hundred dollars each with interest from date, which were made payable to J. T. Tavenner individually, hut which it was alleged were given for land of the plaintiff, Ann B. Tavenner, sold by J. T. Tavenner her attorney in fact to Caleb G. Barrett and Sarah V. Barrett, his wife. The legal title to these three bonds was in J. T. Tavenner, but he was a mere trustee holding the legal title to these three bonds for the use of Ann R. Tavenner, and in a suit in equity to enforce them it was necessary on the principles, -which we have laid down, that both she, the cestui que trust, and he, the trustee, should be parties to such suit. J. T. Tavenner, the trustee, holding the legal title of these bonds, and being a necessary party to a suit in equity to enforce their collection brought by the beneficial owner of these bonds, Ann B. Tavenner, and there being no controversy between them, but he admitting that he had these bonds executed to him really for the use of Ann. B. Tavenner, it would follow as of course, that she could make him a defendant in said suit; or he as such trustee might properly unite with her as co-plaintiff, just as the assignor of a bond in a suit in equity brought to enforce it by the assignee, may be made a defendant; or the assignee and assignor of the bond, if there be no controversy between them, may properly unite as co-plaintiffs in a suit in equity to enforce the collection of such bond. In Nelthorpe v. Holgate, 1 Collyer R. 218 the vice chancellor says, in a suit in which Sir John Melthorpe and Mr. Holmes were co-plaintiffs, and Mr. Holgate and others were defendants : “There is not nor ever has been any dispute or ques
My conclusion therefore is, that the circuit court of Wood county erred hi its decree of October 17, 1878, in sustaining the demurrer to the original bill, because J. T. Tavenner was not made a party plaintiff in the cause with Ann R. Tavenner. It is true, that he is called in the bill her attorney in fact, but the bill on its face show’s, that he vras the trustee and holder of the legal title of the three bonds of two hundred dollars each, payable to him as obligee, and that he held them'as such trustee for the co-plaintff, Ann H. Tavenner. But this error was of course not prejudicial to the defendants, the appellants in this Court, and it was really corrected by granting leave to Ann R.. Tavenner to amend her bill and make J. T. Tavenner a defendant. This was peihaps his appropriate position, at least it "was clearly a ligifimate position for him to hold, he being as we have seen, a necessary party to the suit.
The amended bill, which was filed was an improvement on the original bill. It set out the case of the plaintiff more clearly and more fully, and made certain other parties defendants, which the commissioner’s report showed were proper parties defendants to the cause. But it was obviously a suit for substantially the same purposes and based on substantially the same facts, and asking substantially for the same relief as the original bill, and was clearly a proper amended bill and not any new suit as has been claimed by the appellant’s counsel. This amended bill was demurred to by Barrett and wife, who assigned no less than twenty-three grounds of demurrer. But it seems to me clear, that this amended bill alleged facts, which if true, clearly showed, that the plaintiff had a right to the equitable relief against Barrett and wife which it sought. So far as they were concerned the substance of the bill was, that in a certain chancery cause pending in that court, the court had decreed the sale of thirty-
This equity is constantly enforced in a court of equity,- and land sold to pay the purchase-money by order of the court, where no deed had been made to the purchaser. Nor do I see any difficulty in the court’s directing the sale of the seventy acres of land to pay the six hundred dollars, which were by the deed of Barrett and wife secured upon it, though the bonds were payable to C. B. Tavenner, they being really for the use of the plaintiff, and in point of fact given for land sold by her to Barrett and wife. Nor am I able to see, that the payment of those bonds can not be enforced because the plaintiff did not sign any memorandum in writing showing,
The fact, that the bonds for the purchase-money were given to J. T. Tavenner instead of being given to the plaintiff, Ann R. Tavenner, to whom they should have been given, should not embarrass a court of equity, who never regard form, but always look to substance, in enforcing the payment of this purchase-money. C. B. Barrett’s wife, Sarah V. Barrett, is unquestionably bound by the bonds, which she executed, and by the deed of trust which she gave on her separate property, and in which her husband united. She would have been so bound though she had been her husband’s security merely, which she was not. There is in this State no sort of necessity in order to bind her separate estates, that these bonds should so state on their face. If given for a valuable consideration, as they were, they bound her separate-estate. See Radford et al. v. Carwile, 13 W. Va. p. 672. It is obviously immaterial, whether the plaintiff when she sold this land to Barrett and wife had only an equitable or a legal title thereto; in either case the purchase is binding on the purchasers. These views are really a sufficient answer to all of the twenty-three grounds of demurrer assigned to this bill, except those which are based on the idea, that the plaintiff was bound to tender with her bill to Barrett and wife a deed for these fifteen acres of land with general warranty of title.
Now as I understand the law it was not necessary, that any deed should have been tendered to the purchasers of this land cither before the insitution of this suit, as the ap-pellee’s counsel insists, or with the bill. All that was necessary, according to the terms of the contract stated in the bill, was for the plaintiff to make a deed in accordance with her contract, when the purchasers Barrett and wife paid the purchase-money. If the bill had shown on its face, that she never could have made such a deed as the contract called for, as for instance if the bill had been filed by an assignee in bankruptcy and the contract showed, that the bankrupt had bound himself to insert in the deed certain covenants, such contract could not be specifically enforced unless the assignee in bankruptcy was willing to give such covenants personally. But so liberal is the court of equity in such a ease, that though the bankrupt was unable or not obliged to execute such covenants as he had agreed to do, yet the court at the instance of the assignee of such bankrupt would enforce such contract specifically, if the assignee himself would
To justify the court in sustaining a demurrer to a bill for specific performance, the ground of demurrer must be a short point, upon which it is clear that the bill will be dismissed with costs at the hearing. If the evidence to be taken is such as may sustain the relief asked with some modifications the demurrer ought to be overruled, and the case should stand until the hearing to be then disposed of on its merits. See Brooke v. Hewitt, 3 Ves. jr., 253. It is not necessary, that the bill for a specific performance brought by a vendor should show, that he had a valid legal title to the land sold; on the contrary the bill could not be demurred to though it appeared on the face of the bill, that he not only did not have a good legal title to the land, but that he did not have to a portion of the land any title legal or equitable, and that he never could acquire a good title thereto, provided it appeared, that the portion to which he could never acquire a good legal title was an insignificant portion of the land sold. In such cases, the court often decrees specific performance on the application of the vendor or his making compensation for the insignificant portion of the land, which he agreed to sell and to which he had not .and could not acquire a title.
Generally in such cases time is not considered of the essence of the contract; and accordingly it is not generally regarded as material, whether the title of the plaintiff was a good title, when he made the contract of sale or when he brought his bill for a specific performance, and he is permitted by the court to make out his title at any time before the report on his title, and if he can do so though his title was imperfect when the bill was filed, he will be entitled to a decree for a specific performance. See Bennet College v. Carey, 3 Bro. C. C. 390. The court accordingly often allows time for the completion of his title by the vendor, and has more than once allowed the vendor time to get an act of Parliament to make good his title. Lord Stourton v. Meers, cited 2 P. Wms. 630; Lord Braybroke v. Inskip, 8 Ves. 417-436; Coffin v. Cooper, 14 Ves. 205. And when upon the face of the contract there was difficulty in the plaintiff’s title, Vice
These cases are ample to show, that there is no necessity in a suit for specific performance brought by a vendor for him to tender a good deed or any deed in with his bill in order to make it good on demurrer. And therefore even if in this ease he was bound to make a general warranty deed, his tendering a special warranty deed would not have made his bill bad on demurrer; but at the hearing the court would require him before receiving the purchase-money to execute a deed with general warranty, which the plaintiff could of course do: In this case the answers of the defendants, Barrett and wife show, that they were entitled by the contract to a deed with only special warranty. The undisputed law is, that as a general rule upon an agreement for the sale of land the vendor, though nothing be said in the contract .on the subject, is considered as contracting for a general warranty. See Rucher v. Lowther, 6 Leigh 259. The law is thus stated in 2 Th. Coke Lit. 325 n. (G. 3): “"With respect to the persons who are bound to enter into these covenants it may be observed in general, that all persons who convey lands whereof they are seized to their own use, are bound to enter into the usual covenants for the title of the land conveyed. But where the estate is sold by trustees under a will, a purchaser is not entitled to covenants for the title. And the same rule applies where an estate is sold under an order of a court of equity. See Wakeman v. The Dutchess of Rutland, 3 Ves. jr. 505, 506. In both cases the purchaser is entitled to a covenant from the vendors, that they have done no act to encumber the estate, a special warranty substantially.”
The contract of sale in this case filed with the answers of O. G. Barrett and Sarah V. Barrett, his wife, is as follows: “ This is to show, that I have this day sold O. G. Barrett and Sarah V. Barrett, his wife, the following described piece of
I omitted to notice some of the other grounds of demurrer to the amended bill in the case, because they appeared to me to be frivolous, and because they have not been insisted in by the appellant’s counsel in this Court. What I have said with reference to this amended bill is a full answer to all the objections to it sot out in the demurrer, and in the twenty-three causes of answer assigned so far as they were on any degree plausible. Those not replied to I regard as having been abandoned by the appellant’s counsel in his argument in this Court.
The portion of said decree principally complained of by the appellants, The Life Insurance Company of Virginia, in this case is, in these words: “ The court doth decide, adjudge, order and decree, that the deed of trust given by O. G. Bar
These propositions of law are unquestionably sound, but it does seem to me, that they have no sort of application to the case before us. The bill and amended bill both set out the various liens claimed to be on the land, in the bill and amended bill named, including this deed of trust, and ask, that “ a commissioner be directed to ascertain and report any and all liens of any and every kind whatever existing against said property named, and the order of their priority, and that the court will decree a sale of said property or so mnch thereof as may be necessary to pay off and discharge the plaintiffs lien, and other liens existing against the said lands as aforesaid, and that a special commissioner be appointed for that purpose.” The amount and priority of the various liens including this deed of trust was directly involved n this cause, as stated in the bill and amended bill, and as a matter of course any one of the defendants and more especially Sarah V. Barrett, had a right in her answer to insist, that any one of these liens was originally invalid or that the debt had been paid off; and surely she could not bo deprived of this right, by the plaintiff saying, that such lien was valid or such debt had not been paid off.
There is in this case a direct issue made by the bill and the answer of Sarah V. Barrett, as to the validity of this deed of trust. The bill alleges it to be valid, and the answer of Sarah V. Barrett denies that it is valid. The decree therefore as to its validity or invalidity is based directly upon the pleadings and proofs between the plaintiff and the principal defendant, and according to the authorities cited by the appellant’s counsel this is the very case, where the court may properly render a decree between co-defendants. This question was thus fairly before the court for decision. Was it properly decided? The authorities all agree, that the privy acknowledgment of a married woman taken by the grantee in a deed, whether he be a trustee or not is a void acknowledgment, and as her deed is inoperative and void without such acknowledgment after privy examination and due re-cordation it follows, that the deed of a married woman
It has also been universally held so far as I know, that a grantee in a deed, not a trustee, can not take the acknowledgment of a deed of any sort, though it be the acknowledgment of a man and the act a ministerial and not a judicial act. See Beaman v. Whitney, 20 Me. 413; Wilson v. Traer, 20 Iowa 233; Stevens v. Hampton, 46 Mo. 404; Grovesbach v. Seely, 13 Mich. 345. In this last case the court says: “We should have no hesitation in holding, that a person could not take an acknowledgment of a deed made to himself. Such a point is too plain for doubt.” This doctrine seems to be recognized in Dussaume v. Burnett, 5 Ia. 95. In Kimball v. Johnson, 14 Wis. 674 an acknowledgment of a deed, which a mortgagee made to a married woman to secure a lien made by her was taken before her husband, and the acknowledgment was held good. But the husband was no party to the deed and could have no interest in it, as it was to secure money loaned as a part of her separate estate. In Brown v. Moore, 38 Tex. where Moore and wife gave a deed of trust to secure a debt on the property of the wife, and the trustee took her acknowledgment, the deed was held void because of this defective acknowledgment. And in Stevens v. Hampton et al., 46 Mo. 407 a deed, which was acknowledged by a grantor, a man, before the grantee, who was a trustee with a power
“The objection to the trustee taking such acknowledgment is analogous to the one forbidding a judge to pass upon his own case. Though this act maj'- not be strictly judicial, it is of a judicial nature and requires disinterested fidelity. "Wo know that in practice such a trustee is always selected by the beneficiary; lie is controlled by the beneficiary in fixing- the time of sale, and its proceeds come into his hands. There is such an interest, that as to tlie requisite of the deed itself, he should be placed upon a level with other parties, and be incapacitated from holding any official relation to its execution. The want of a proper acknowledgment does not however invalidate the deed (of one sui ju?is) but only goes to the effect of the record. If not acknowledged or proved, its record is not provided for by law, and the fact that it may be copied upon the book of records will not operate as constructive notice to subsequent purchaser. Dussaume v. Burnett, 5 Iowa 95; Lessee of Shults v. Moore, 1 McLean 520; Barney v. Sutton, 2 Watts 31; Hastings v. Vaughan, 5 Cal. 315; Price v. McDonald, 2 Md. 403; Johns v. Scott, 5 Md. 81. The deed however is good as between the parties, (being sui juris) and should prevail against subsequent deeds to those who had actual notice of its existence. Dussaume v. Burnett, 5 Iowa 95; Caldwell v. Head, 17 Mo. 561; Cooley v. Rankin, 11 Mo. 647.”
With these views I concur and adopt them as my own; for they accord I think with both reason and authority. Of course the holding of this deed of trust of September 25, 1875, to be null and void, so far as it purported to convey
It is claimed however, that there is no proof of the identity of W. W. Van Winkle, the trustee, with W. W. Van Winkle the notary public, who took the acknowledgment of this deed of trust given by C. G. Barrett and his wife S. Y. Barrett. It was distinctly asserted in the answer of S. Y. Barrett, and it has been in no manner denied by the cestui que trust, The Life Insurance Company of Yirginia, nor by the trustees Van Winkle or Ambler. I think the identity of the name of the trustee and of the notary public raises a presumption, that they were the same person, which would have in some way to be rebutted or at least denied; but so far from its being rebutted it is strongly fortified. The commissioner in his report says: “Your commissioner further reports, that the plaintiffs by their attorneys claim and ask that the same be reported. First, that the deed of trust given by C. G. Barrett and S. Y. Barrett to W. W. Yan Winkle and B. M. Ambler, trustees, is invalid for the reason that the acknowledgment thereto was taken by one of the trustees, W. W. Yan Winkle, a party to the said deed and a party in interest. The foregoing objection is submitted to your honor’s consideration. If well taken the priority of the various liens herein reported wall be materially changed, and will be as follows.” Then follows a new arrangement of all the liens.
It is insisted, that this is a mere report of what is claimed by the plaintiff’s counsel, and that it is not reported as a fact, that the trustee and the notary public were the same person. This it seems to me is not a fair construction of this report. It is true that the statement of the order of the liens, if this
My conclusion therefore is, that the decree of October 18, 1879, must for the reasons we have stated be reversed, set aside and annulled, and the appellants must recover of the appellees their costs in this Court expended; and this Court proceeding to render such decree as the circuit court of Wood county should have rendered, the following decree must be entered up :
These causes came on to be heard together, the same having been by consent heretofore considered, the first of the above named causes being heard on the amended bill of Ann R. Tavenner, and the demurrer thereto of C. G. Barrett and Sarah V. Barrett, in which the complainant joined, the joint and separate answer of The Life Insurance Company of Virginia, W. W. Van Winkle and B. M. Ambler trustees, and general replication thereto, the joint and separate answers of C. G. Barrett and Sarah V. Barrett, his wife, to said amended bill, and general replication thereto, the report of Henry Amiss, commissioner, and the exceptions thereto; and the second of said causes being heard on the bill filed at the August rules, 1879, by C. G. Barrett and Sarah V., his wife, against R. C. Tracewell, trustee, and John Buford, and on the injunction awarded said bill, and the answer of
And it appearing to the court, that the Daniel Stone farm of about seventy acres is now owned jointly by Sarah V. Barrett and John Buford, the said John Buford having purchased the undivided moiety thereof formerly owned by Caleb G. Barrett, when sold by R. C. Tracewell under the deed of trust executed by C. G. Barrett and Sarah Y. Barrett on the 10th day of April, 1877, and this Court having heretofore decided, that said deed of trust was null and void, so far as it conveyed the interest of Sarah V. Barrett in said David Stone farm, therefore the Courtis of opinion and doth decide, that John Buford now owns the undivided moiety of said Daniel Stone farm, which had belonged to Caleb G. Barrett, subject to all the judgments and other liens by deed of trust on said undivided interest of Caleb G. Barrett, which were valid and binding on it against a purchaser for valuable consideration without notice on the 16th day of April, 1877, when said deed of trust was executed and recorded, under which said Buford purchased; and the Court is also of opinion and doth decide, that the deed of trust executed by 'Caleb G. Barrett and Sarah V. Barrett, his wife dated September 25, 1875, is invalid, null and void, so far as it purported to convey or to create any lion on the undivided moiety of said Daniel Stone farm, owned by Sarah V. Barrett as her separate estate, and that said deed of trust is also invalid and void
The Court is also of opinion, that all judgments rendered by courts of common law or by justices of the peace against Sarah V. Barrett on contracts expressed or implied, made during her coverture, are null and void as against her, and created no liens on her land, the same being rendered against by her courts or justices, who had no jurisdiction to render such judgments against a married woman. And the Court is also of opinion and doth decide, that the plaintiff, Ann R. Taven-ner, has a first lien on the parcel of fifteen acres of land sold by her to C. Gr. Barrett and Sarah Y. Barrett, for the purchase-money of said land, six hundred dollars, with interest from August 27, 1877; and that she has also a good and valid lien as of August 27, 1877, for said six hundred dollars and interest on the undivided moiety of Sarah Y. Barrett in the Daniel Stone farm, but that she has now no lien on the undivided moiety of said Daniel Stone’s farm, now owned by J ohn Buford, by reason of the deed of trust executed by said C. Gr. Barrett and wife of that date. Inasmuch as the said undivided interest of Caleb Gr. Barrett has been sold under a previous deed of trust of April 16, 1876, and was purchased by John Buford at the price of eight hundred dollars; but he has a valid lion on any surplus, which may be in the hands of the trustee, R. C. Tracewell, after paying off the expenses of said sale and the debt of John Buford secured by said deed of trust purged of the usury in said debt.
It is therefore adjudged, ordered and decreed, that this cause be refered to one of the commissioners of the circuit court of ’Wood county, who is hereby directed to ascertain, state and report the number, amount and priorities of all liens by judgments against Caleb Gr. Barrett, which were re-docketed prior to the 10th day of April, 1877, ahd which are liens on the undivided moiety of said Daniel Stone farm, now owned by John Buford; and he shall also charge as a lien on the said undivided moiety of said land now owned by John Buford, the debt secured by the deed of trust executed
The said commissioner is also directed to ascertain and report what liens are now existing on the undivided moiety of Sarah V. Barrett in said Daniel Stone farm and their priorities, taking care in ascertaining the same not to treat as liens on the same any debts or judgments, which are hereinbefore decided not to be liens on the same. And the said commissioner is further directed to ascertain and report the amount of the purchase-money due for the purchase of the fifteen acres of land by C. G. Barrett and wife of Ann R. Tavenner, which is a first lien on said fifteen acres, and he shall also ascertain what other debts are liens on the said fifteen acres of land, or on the interest of either C. G. Barrett or Sarah V. Barrett in said fifteen acres of land and their priorities.
The Court doth further adjudge, order and decree, that the defendants C. G. Barrett and Sarah V. Barrett, on the allegations made in their said answer, are not entitled to the affirmative relief asked for in their said answer, they being entitled only to a deed with special warranty of title upon said fifteen acres of land bought of Ann R. Tavenner, when they pay the whole of the purchase-money, and are therefore entitled to no order of reference to ascertain, whether the title to said land is good. And the Court declines to decide, whether partition of said Daniel Stone farm should bo made between Sarah V. Barrett and John Buford till said report of said commissioner is returned. And this cause is remanded to the circuit court of "Wood county to be further proceeded with according to the written opinion aforesaid, and further according to the principles governing courts of equity.
Decree Reversed, Cause Remanded.