41 W. Va. 588 | W. Va. | 1895
The following statement of this case is taken from the statement of counsel for the appellant: On the 8th day of March, 1870, one Leonard G. Fisher and his wife conveyed unto the heirs of his deceased son, Perry A. Fisher, a tract of land situate on the waters of Duddens Fork of Poca
Under this state of facts, the plaintiff, Walker, on the 20th day of September, 1894, obtained an injunction to restrain the sale, on the ground that no notice of said sale had been served on the said Fisher, the grantor in said deed of trust, although it nowhere appears in said bill that he is a resident of the county of Jackson, where said deed is recorded, and where the land is located, and on the further grounds that said sale should be on a credit, as provided by statute enacted in 1882, and also that the case should be referred to a commissioner to ascertain the liens
One of the assignments of error relied on by the appellant is: As the deed of trust was executed prior to the enactment of chapter 140 of the Acts of 1882, which provides for the sale of property under a deed of trust, that the trustee shall sell the property for one-third cash in hand, one-third thereof, with interest, in one year, and one-third thereof, with interest, in two years, from the day of sale, taking from the purchaser his notes, with good security for the deferred payments, and retaining the title as a further security. At the time said deed of trust was executed, the statute provided that such sale should be made for cash, unless therein otherwise provided; and one of the grounds on which the plaintiff relies in his bill for injunction is that said land was advertised for cash, instead of being advertised as required under the act of 1882. Now, the question is, which of these statutes should control as to the mode of advertising and the terms of sale of said land under said trust deed. The law existing at the time the deed of trust was executed entered into and formed a part of the contract. It appears that the note for one hundred dollars, executed by J. B. Fisher to C. E. Hogg, to recover which ho is seeking to enforce this trust, bore date the 8th day of February, 1881, and was payable six months after date, with interest; and, if said trustee had advertised and sold said property when said note fell due, he would have sold for cash under the statute then existing. Can it be that, by the leniency he has extended to the grantor in said deed of trust, the contract has been changed ? It is now claimed that, instead of selling for cash, said trustee must sell on a credit of one and two years, which would work an entire change in the contract. Bishop on Con
In the case of City of Richmond v. Supervisors of Henrico Co., 83 Va. 204, (2 S. E. 26) it was held that “a statute is never construed to be retrospective unlessthe intent that it shall so operate plainly appears upon its face. This rule applies even to remedial statutes. Its meaning must be arrived at from its own language, and not from the declaration of its draftsman.” The act of 1882 (chapter 140, s. 6) evidently contemplated prospective actiou, and the provisions of said section were intended to apply to deeds of trust drawn under the preceding sections of said chapter, in which the form of the deed of trust is prescribed. The language is: “The trustee in any such deed shall, whenever required by any creditor secured, or any surety indemnified by the deed,” etc., “after the debt * * * shall
In the case under consideration, a right was established by reason of the law existing at the time said deed of trust was executed, forming part of the contract, and authorizing the sale under the same to be made for cash; and the repeal of that law, and the provision that sales under trust deeds shall be made for one-third cash, and the balance on a credit of one and two years, with interest, can not affect the right of said cestui que trust to have said sale made for cash.
It is further claimed in the injunction bill that the trustee in said deed of trust has not, in proceeding to sell said land, given notice to the grantor, as required by section 7 of
It also appears that the Duff'debt claimed to be a lien on the interest of J. B. Fisher was owned and held by ■(!. W. Boggess, who conveyed the land, with covenants of general warranty to defendant Raines, who conveyed the same to plaintiff, with covenants of general warranty, so that Boggess would be estopped from asserting the same as a lien against the land formerly owned by said J. B. Fisher, so that the plaintiff, from his own showing, is amply protected.
For these reasons the decree complained of must be reversed, with costs.