28 W. Va. 533 | W. Va. | 1886
Statement of the case by
On April 25, 1870, Burkhart & Son obtained in the circuit court of Jefferson couuty a judgment against James D. Wig-ginton,Wm. G. Grantham and Josiah Watson tor $1,105.50 with interest from the date of judgment and $18.09 costs, which judgment, was docketed on the jndgment-lien-docket of said county on April 25, 1870. This judgment was rendered on a negotiable note drawn by James D. Wiggin-ton, payable to William'G. Grantham and endorsed by himself as first endorser and by Josiah Watson as last endorser. The note was dated July 29, 1868, was drawn for $1,000.00 and was payable twenty days after its date. Several executions issued on this judgment, but no unincum-bered personal property could be found, on which to levy any of the executions until 1871, when one of these executions was levied on a small quantity of wheat of James D. Wigg'inton, the drawer of this note, and out of its sale $56.55 was made on December 28, 1871, which was credited on the judgment. When the said judgment was so obtained and docketed, James D. Wigginton, the drawer of the note, owned two tracts of land in the said county one of 139 acres and the other of seventeen and one half acres. The first of these tracts was then incumbered by a deed of trust to se
In 1876 Josiah Watson brought a chancery suit in the said court making as defendants said Wigginton, Grantham, Wm. D. Burkhart, surviving partner of said Burkhart & Son and said Fry and in his bill alleged the above facts, and also that on November 2, 1874, in a chancery suit of Wigginton v. Halderman in said court the tract of 139 acres of land of Wigginton was sold and the money applied to the payment of the said lien by deed of trust in favor of said Grantham for $3,500.00, and this lion fully paid off. It also states, that said Wigginton, the drawer of said negotiable note payable to Burkhart & Son, obtained the money on said $1,000.00 note, after it had been indorsed by the plaintiff Watson as the last indorser, and he appropriated the same to his own use. Having alleged these facts and some others this bill concludes by alleging, that the plaintiff, Josiah Watson, the second and last indorser on this negotiable note, fears that his land -will be sold to pay the judgment on this note, while the lands of said Wigginton, the drawer of the uote, will remain unsold to pay this judgment, while this tract of
The bill concludes as follows : the plaintiff prays “that a decree may be entered in this cause setting aside said deed of Wigginton to Fry and declaring it null and void as against said Burkhart & Ron and decreeing a sale of the said seventeen and one half acres of land and any other real estate of the said Wig-ginton liable to the payment of the said debt, and the proceeds of such sale or sales to be applied to the payment of the indebtedness of the said James D. Wigginton to the said Burkhart & Son; and that, after the real estate of the said Wigginton has been exhausted, if it prove insufficient for the payment of the said debt, the real estate of the said W. J. Grantham may next be subjected to the payment of the same, and before the lands of your orator are subjected to the said payment; and for such other and further and. general relief, as to equity may seem meet, and the nature of his case may require.”
The bill was taken for confessed as to the defendant Gran-tham and as to all the other defendants except said Fry, who at the April term, 1876, filed a general demurrer to the bill alleging no grounds of demurrer. This demurrer was overruled by a decree rendered April 27,1876, and he thereupon immediately by leave of the court filed an answer, in which he admits the execution of the deed for the seventeen and one half acres of land by said Wigginton to him as stated in the bill and alleges, that the consideration for this deed has been paid and satisfied, and then in general terms “denies all other matters material to the issue in this cause.” The plaintiff without excepting to this answer for its insufficiency replied to it generally.
At the October term, 1876, the cause was by a decree referred to a commissioner to report the amount and fee simple value of this tract of seventeen and a half acres and the amount of liens thereon and their priorities and any other matter deemed pertinent by the parties. This decree recited that the pro
The additional matter so excepted to was a long statement of what was decided in the cause of Wigginton v. Grantham in said court, and it alleges, that at the April term 1873 a consent decree was rendeed in the cause directing a sale of the 139 acre tract of Tames D. Wiggington to pay a certain debt of his decreeing in favor of said Grantham $729.35 the amount of an open account, which he held against Wigginton, and declaring to be null and void the deed of trust referred to in the bill securing a debt of $3,500,00 to said Grantham as not based on any consideration whatever' there being no such debt due Grantham. It is also alleged in this answer, that it was decided in this cause that on the said negotiable note Wigginton was a mere accommodation-drawer of the note, and that Grantham was the party, for whose benefit and accommodation the note -was drawn, though it is not disputed, that the plaintiff, Watson, was the last indorser on the note, and that he was not bound except as security for both s.aid Wigginton and Grantham, who stood in the trans
This amended answer further says, that, if the report of the commissioner could be found, it would show the truth of the statements in the answer, but it had been lost. The amended answer also states, that “the judgment” (named in the bill) “in favor of Burkhart & Son, and which he apprehends he may be required to pay, is the earliest judgment-lien upon the real estate of William Grantham. It is so reported by Commissioner Moore in the cause of Andrew Mc-Clary against William J. Grantham.; and the said commissioner reports property of the value of $8,000.00' or $9,000.00 as liable to this preferred lien except one small interest, which is subject to a trust-deed. The fact then admits of no question whatever, that the debt of Burkhart & Son is the first lien on William J. Grantham’s property, that his property is ample and abundant to pay said lien, and there is no contingency in which it will fall upon the complainant Watson to pay said debt; for whatever may be the relation of Wiggin-ton and Grantham to that debt it is certain that the complainant Watson is the last indorser and will not be held liable until the property of both Wigginton and Grantham is exhausted. But neither the record of said cause of McClary v. Grantham, nor any part thereof is filed with this answer. Yet, as the answer was not replied to, these statements must be regarded as true as against the plaintiff.
Though so much of the statements both of the bill and answer were capable of being fully established, if true, by the records of suits pending or decided in the very court, in which this suit wTas pending, yet no part of the record is
Commissioner Kearsley executed the aforesaid order of reference to him, and by his report dated September 8, 1877, found the value of the seventeen and a half acre tract of said Wigginton to be $437.50 and its annual rental value to be $75.00, and that the liens on it and their priorities were as stated in the bill, the first lien being the judgment of Burkhart & Son amounting with interest to October 1,1877 to $1,560.82, and then the said judgment in favor of Charles J. Faulkner amounting with interest to same date to $654.30, and then the said judgment in favor of David Fry amounting with interest to same date to $591.80, and last, the judgment in favor of William -I. Grantham against James I) Wigginton rendered in the aforesaid chancery cause on April 24,1873, amounting with like interest to October 1, 1877, to $1,148.75. The commissioner expressed no opinion in his report as to who was the principal in the debt of $1,000.00 and interest, which was duo to Burkhart & Son, whether it was Grantham or Wigginton, because it was a matter not referred to him by the decree; and his report was for this reason and this reason only excepted to by the defendants. The commissioner returns with his report the deposition of Wig-ginton taken before him on this point. lie testified, that though he was the drawer of this note, he was but an accommodation drawer for Grantham, and after it had been indorsed by the payee, said Grantham, and by the plaintiff, Watson, it was discounted by Burkhart & Sou, and the money arising from this discounting all paid to William J. Gran-tham. ITe admits, that he was indebted, but how much he did not know, to said Grantham, when he signed this negotiable note of $1,000.00 payable to him.
In the progress of the cause William J. Grantham’s deposition was taken, who says, that this $1,000.00 note payable
David Fry having died, this cause was revived against A. Ii. Tampiary, administrator of David Fry, on November 20, 1879.
This being all the evidence in the cause except the depositions of Faulkner and Blackburn excepted to and taken to prove what the court had done in the cause of Wigginton v. Grantham, which, they proved, was correctly stated in the amended answer of David Fry, the court on December 3, 1883, rendered the following decree :
“This cause came on to be heard again this 3rd day of December, 1883, to be further heard, upon the papers form-' erly read, the amended and supplemental answer of David Fry filed by leave of the court, the report of the commissioner, George W. T. Kearsley returned and filed September ■ 24, 1877, and the exception thereto indorsed by detendaut’s counsel, and the deposition of James D. Wigginton returned with said report, of Charles J. Faulkner and H. H. Blackburn returned and filed February 21, 1877, and of William J. Grantham, John W. Roberts and Josiah Watson, returned and filed May 15, 1883, and was argued by counsel. On consideration whereof the court for reasons stated in writing and filed in this cause is of opinion that the question as to whose land should be first subjected to the lien of the judgment of Burkhart k Son against J. D. Wigginton as between the heirs of David Fry (the purchaser of the seventeen and one-half acre tract from James D. Wigginton) and Wrn. J. Grantham, is one which these co-defendants had a right to litigate in this suit, and the court ought to decree a sale of the land of the principal, before selling that of the surety unless it appear that the sale of the realty of both is necessary to pay the debt. And is further of opinion that the evi-*542 denoe so far as is admissible is contradictory and conflicting and that said question is one eminently proper to be tried bj-an issue out of chancery. It is therefore adjudged, ordered and decreed, that a jury be empanneled at the bar of the circuit court of Jefferson county to try the following issue, to-wit: Who was principal and who was security in the debt to Burkhart & Son, audited in the said report of Commissioner Kearsley as a judgment of the circuit court of Jefferson county against James D. Wigginton, Wm. J. Gran-tham and Josiah Watson for $1,105.00 debt with interest thereon from April 20, 1870, and $18.00 costs, the verdict of said jury upon said issue to be returned for further action of the court thereon, to be had herein. And itis further ordered that the depositions of any of the witnesses taken in this cause may be read at the trial of said issue if said witnesses are dead or il their personal attendance can not be procured, subject however to all just and proper exceptions to said depositions.”
The issue thus directed was tried by a jury ; and on Nov-vember 29, 1884, the following decree was rendered by the court:
“This causé came on again this 29th day of November, 1884, to be further heard upon the papers formerly read and upon the verdict of the jury upon the issue directed by decree of December 8, 1883, to be tried in words and figures as follows : We the jury find that W. J. Grantham was the principal and J. D. Wigginton was the surety in the debt of Burkhart & Son, audited in the report of Commissioner Kearsley on a judgment of the circuit court against James D. Wigginton, W. J. Grantham and Josiah Watson for $1,105.00 debt with interest from April 20, 1870, and $18.09 costs. R. P. Chew, F'oremau. And upon the certified proceedings in and about said verdict, and the trial thereof, and the motion of the plaintiff and others for a new trial upon said issue, on the ground that the verdict is contrary to the evidence and for newly discovered evidence, and was argued by counsel; on consideration whereof, the court seeing no reason to set aside said verdict, doth deny the said motion; and doth adjudge, order and decree that the real estate of the defendants in the judgment of Burkhart & Son against*543 Wigginton, Grantham and Watson audited in Commissioner Kearsley’s report, is liable to be subjected in satisfaction ot said judgment in the following order, to-wit: first W. J. Grantham’s real estate, second Jas D. Wigginton’s land, or that of David Fry’s heirs in the bill mentioned, for any balance then remaining unpaid, and lastly, that of Josiali Watson if any balance of said judgment still remain unsatisfied.”
From these two last- decrees the defendant, Grantham, has obtained from this Court an appeal and supersedeas.
Opinion by
The first question to be decided by this Court in this cause is: Has this Court jurisdiction to determine the matters in controversy; or must the appeal be dismissed as improvidently awarded, because appellant did not file an answer to the bill in the court below, and the bill was taken for confessed as to him, and he did not make a motion in the court below to reverse the decrees complained of, before the appeal was awarded him by this Court ? Whether we had jurisdiction to award such appeal under these circumstances depends upon the true construction of sections five and six of chapter 134 of the Code (see Code p. 637). These sections, so far as they relate to the question to be considered are in these words:
“The court in which a judgment by default or a decree on a bill taken for confessed, or a judge of said court in the vacation thereof, may on motion reverse such judgment or decree for any error for which an Appellate Court might reverse it if the following section was not enacted, and give such judgment or decree as ought to be given” : * * * * * “Xo appeal, writ ot error or supersedeas shall be allowed or entertained by an Appellate Court or judge for any matter for which a judgment or decree is liable to be reversed or amended on motion as aforesaid, by the court which rendered it or the judge thereof, until such motion be made and overruled in whole or in part.”
The decisions of this Court in construing this portion of this statute have not been harmonious; and I propose now to consider it carefully and review the various decisions,
This statutory law, so far as above quoted, is taken from the Code of Virginia ch. 181 §§ 5 and 6; and they embrace the provisions contained in the Rev. Code ot 1819 § § 108, 109 and 110 p. 512 and also the provisions contained in the Virginia Act of March 12, 1838 (Sess. Act p. 74). The first inquiry in construing this portion of the law is: What is meant by a judgment by default ? In the case of Davis v. The Commonwealth, 16 Gratt. 134, Judge Allen in delivering the opinion of the court says on page 136 :
“The term judgment by default strictly and technically applies to actions at common law only, and it is argued that in a statutory proceeding such as was then before the court (a notice by the commonwealth against a sheriff for failure to pay over license taxes collected) there is no judgment at rules, and no judgment can be entered in court in the absence of all proof of claiming it is not a judgment by default, but a judgment on the merits, which can not bo reversed by the court which rendered it and therefore nof embraced by*545 the Code in the above sections. There is force in this argument but it seems to me that although not a technical judgment by default at common law, a proceeding by notice falls within the equity and uses intended to be embraced within the scope of these provisions of the Code.”
He then proceeds to show, that the Virginia legislature prior to the passage of the Code of 1849 had been gradually extending the power of the court or the judge in vacation to correct errors, to which the attention of the court had not been called, on motions after judgments, in order to save the parties the costs of an appeal to correct such errors. And he refers to Gumi'mgham v. Mitchall, 4 Hand. 189, which wa's a motion by a security to recover money from a person alleged to be a principal, and in which Judge Green in delivering the opinion at the court, there having been no appearance by the defendants in the court below, states, that the defendant could not after submitting to a judgment by dc-lault object in the Court of Appeals to the truth of the sheriff’s return, thus giving to the judgment the effect of a judgment by default, and styling it a judgment by default. Judge Allen then said:
‘:I think the legislature used the phrase in the same sense in the act under consideration and this must be considered as a judgment by default in the meaning of this law and the supersedeas should not hare been allowed until a motion had been made to the court in which the judgment had been entered, or the judge of said court in the vacation thereof, and overruled. And the supersedeas having been improperly allowed should be dismissed.”
This decision rendered in 1861, has been ever since fol-lowen both in Virginia aud in this State; (Goolsby v. Strother, 18 Gratt 107; Goolsby v. St. John, 25 Gratt 146, 159 and 160; Holliday v. Myers, 11 W. Va. 297-8; Anderson v. Peerce, 20 W. Va. 59; Smith v. Knight, 14 W. Va. 49). The conclusion to be drawn from these cases is, that all judgments whether in common law actions or on motions under some statute, when there has been no appearance by the defendant, are judgments by default within the meaning of the statute, which we are construing, and no writ of error can be- entertained by this Court to any such judgment, un
There is no conflict in the Virginia or West Virginia decisions as to what is a judgment by default within the meaning of the statute, which we are construing; but our decisions have not been harmonious as to what is “a decree on a bill taken for confessed” within the meaning of the statute.
Tf in a chancery cause none of the defendants have ever appeared in the cause, demurred to the bill, filed answers or appeared before the commissioner, when the court had referred the cause to a commissioner, or filed exceptions to his report or in any other manner appeared in the cause, all the decrees in such a cause would be on a bill taken for confessed, and none of the defendants could appeal from any decree in such cause, until he had made a motion to reverse such decree in the court below. These views seem to me to be based on substantially the same reasoning, whereby the Virginia and West Virginia courts have' reached the conclusion, that all judgments of every character, when there has been no appearance by the defendant, are judgments by default, even when under the law such j ndgments can not be entered, though the defendant has not appeared, unless the plaintiff proves his claim. Sucha judgment has much the appearance of a judgment on the merits of the case as shown by the proof introduced by the plaintiff, yet, as the defendant has wholly failed to appear for the reasons assigned by Judge Allen in Davis, Sheriff v. Commonwealth, 16 Graft. 136, above quoted, such a judgment is always regarded as a judgment by default within the meaning of the statute; and where the defendant in a chancery suit has wholly failed to appear,
It would seem to be clear, that if all the 'defendants have not only failed to make any appearance in the cause and have entirely ignored it by in no manner disputing the plaintiffs claim, every decree in such cause must be regarded as rendered on a bill taken for confessed within the meaning of this statute, though such decrees were in part based on evidence or commissioner’s reports or other basis ; though possibly there may be one exception to a proposition, which seems in chancery causes generally to have been universally adhered to, and that is a chancev suit brought for a divorce, as in such a cause by statute the bill can not be taken for confessed. (Oh. 63, § 8 of Code p. 441). It however rarely happens, that the claims set up by the plaintiff’s bill arc thus entirely ignored by all of the defendants, no one controverting them in any manner. They may controvert them in a variety of ways other than by filing their answers, which would of couise take the case out of the operation of the statute, as of course, if all the defendants filed answers, there could not be rendered any “decree on the bill taken for confessed.” The defendants might for instance file a demurrer to the bill, the demurrer might be overruled, and the defendants might thereafter fail to answer the bill or to further dispute in any manner the plaintiff’s claim in his bill, would the decrees rendered in such a cause be regarded as “decrees on a bill taken for confessed?” Our decisions on this question have been conflicting. In Gates v. Cragg, 11 W. Va. 300, this Court decided, that a decree rendered in such a cause within the true meaning of this statute was not a “decree on a bill taken for confessed,” and such a final decree could not be corrected by the court below on motion under this law but could be revei’sed or corrected by this Court on appeal, though no such' motion had been made in the court below. ■ In delivering the opinion of the Court in that cause on page 306 I say :
“The decree in such cause is ijnder our statute-law (Code of
The words of our statute (Code, eh. 125 § 30 p. 603) are: “If a demurrer be overruled there shall be a rule upon the defendant to answer the bill; and if he shall fail to appear and answer the bill on the day specified in the order, the plaintift shall be entitled to a decree against him for the relief prayed for therein.” This was not regarded by our Court in that case as the equivalent of a decree on a bill taken for confessed, when no appearance by demurrer, answer or otherwise had been made by the defendant. And it would seem that it ought not to be so regarded in all cases, but on the contrary it should not be held, that no such decree can in any case be regarded as a decree on a bill taken for confessed where the defendant has demurred, and the demurrer has been overruled, as was held in this case of Gates & Bro. v. Cragg et al., 11 W. Va. 300; and this decision in going to tins
“This statute is mandatory in its terms, and not only so it is remedial in its object and purpose. It was obviously intended to remedy the evil in the former practice of the courts which compelled parties prejudiced by errors in judgments or decrees of inferior courts, rendered in their absence and without contest or resistance — after mere inadvertances — to incur the expence and delay of an appeal or writ of error to an Appellate Court for the correction of such errors. The statute must, therefore, under the well settled rule, bo construed liberally in order to advance the remedy intended to be given by it and to suppress the evil intended to bo avoided by it.”
“The language of this statute is too direct and positive to admit of construction. The plain import and object of its terms are to require all applications for the correction of errors in decrees rendered “on bills taken for confessed” to be made to the courts which rendered such decrees, and to prohibit the Appellate Court from allowing or entertaining an appeal from such decrees until such application has been first made and overruled by such court. This statute has been often considered by the Appellate Courts of Virginia and of this State, but nearly all the cases, so far as I have discovered, relate to that part of it, which refers to judgments by default. In those cases it seems that if the records merely show an appearance by the party complaining, the judgment will not be treated as by default, although he may neither demur or plead, or it may appear that he withdrew all his pleas and defences. Compton v. Cline, 5 Gratt. 137; Richardson v. Jones, 12 Gratt. 53; Stringer v. Anderson, 23 W. Va. 482; Goolsby v. Strother, 21 Gratt. 107.
“The language of the statute in regard to equity causes is essentially different from that in referrnce to actions at law. Any appearance by the defendant in the latter cases prevents the judgments from being by default. The very word ‘ default5 means non appearance Bouv. L. Dic’t. — Default. But a bill may be taken for confessed after appearance. The*550 mere appearance of the defendant, certainly does not prevent the bill from being taken for confessed. Technically a bill heard without plea or answer is a hearing on bill taken for confessed and a decree rendered in such case is ‘a decree on bill taken for confessed.’ In a case recently decided by this Court the defendants appeared and answered the bill, but subsequently and before hearing some of them withdrew their answers and brought the case before this Court, and we hold, that the decree as to the defendants who had withdrawn their answers, was a decree on bill taken for confessed, and they were not in a position to appeal. Bock v. Bock, 24 W. Va. 586; Hunter v. Kennedy, 20 W. Va. 343 * * *.
“The demurrer was an affirmative admission of the allegations of the bill. It was itself a confession that, if the facts alleged in the bill entitled the plaintiff in law and equity to the relief prayed for, then such relief may be given. In order to avoid the effect of this admission it was imperative that a plea or answer denying or avoiding those allegations should be filed by the overruling of the demurrer, or before a decree on its merit's is entertained. When the demurrer is over, ruled the bill stands, in the court overruling it, precisely as if no demurrer had been entered and the subsequent de. crees are necessarily on bill taken for confessed as it originally stood at rules and on the order entered before the demurrer was filed and overruled.”
It will be observed, that, while this decision overrules the decision of the Court in Gates v. Gragg et al., 11 W. Va. 300, pt. 2 of syll., which had been decided some seven years before, the Court did not refer to this prior and contrary decision, nor was it cited in the argument of counsel; yet this Court has in several cases since decided followed the general principles laid down in this case of Steenrod v. Railroad Co., 25 W. Va. 138, as for instance in Stewart v. Stewart, 27 W. Va. 175-6. And the approval of these general principles was made after a careful consideration of the prior decisions in Gates Bro. v. Cragg, with which they conflicted. We feel ourselves at liberty to reconsider these principles, as we did not regard this decision in 25 W. Ya. as binding authority upon us, when it was in conflict with the decision in 11 W.Va., to which it did not refer. Though it was obvious,
The controlling reason for the conclusions reached in the case of Gates v. Cragg was, that the spirit of the statute-law, which we are construing, was to require parties in the court below to seek to correct all errors occurring in an appeala-ble decree, when such decree had been made without any de-fence on the part of the appellant, by making a motion to correct such errors before taking au appeal to this Court and incurring unnecessary expense. This was regarded as just and reasonable, inasmuch as the circuit courts were peculiarly liable to commit errors in entering such decree, they being very often the result of mere inadvertance. Such an error would often be without delay or expense corrected by the court below, if its attention was called to the error by a motion, before an appeal was allowed. This I still regard as the obvious purpose of our statute; and it was obviously so regarded by this Court, when this contrary decision was rendered in Steenrod, v. Railroad Co. This distinctly appears from the opinion of the Court pronounced by Judge Snyder; and it is abundantly shown by that portion of this opinion hereinbe-fore quoted. But in carrying out this plain object of our statute this Court in the case of Gates v. Cragg (see pages 305-6) held, that, if the defendant appeared and filed a demurrer, no decree could be rendered agaiust him as on hill taken for confessed; aud if the demurrer is overruled, the court must, as required by the statute, give a rule on the defendant to answer the bill; and if on the day specified in
In the last of this case, Steenrod v. Railroad Co., 25 W. Va. 183, our attention was called to the fact, that a decree entered, when the defendant failed to appear on the day specified in such rule, might be simply one settling the principles of the cause as really adjudicated, when the demurrer was overruled, and carrying into eficct the principles thus adjudicated by the order overruling the demurrer. The manner, in which the principles of the cause thus settled are ordered to be carried into effect, being clearly proper, the only complaint by the defendant being that the principles in the cause have been improperly adjudicated by the overruling of the demurrer, such a decree according to the reasoning of the Court in both of these causes ought not to be regarded as a decree rendered on a bill taken for confessed being really nothing but an affirmation of the decree really in substance rendered, when the demurrer was overruled; and it might therefore be appealed from without any motion being made in the court below to correct the supposed error; for by our statute an appeal will lie in any casein chancery, wherein thereis a decree or order “ adjudicating the principles of the cause ” (Acts 1882 cb. 157 § 1 page 505). In such a case it is immaterial, whether or not such decree or order is technically final. (Core v. Strickler, 24 W. Va. 694). But-though an order overruling a demurrer does settle the principles of a cause, it can not be appealed from, until after those principles have been enforced by a final decree, as the court below before the final decree might correct any error or might commit additional errors. (Laidley v. Kline, 21 W. Va. 21). An appeal from any final decree by a party entitled to appeal therefrom
It will from these principles result, that an appeal may be taken from an interlocutory order overruling a demurrer, by which the principles of a cause are adjudicated, but not until after a decree has been entered carrying these principles . into effect; but when this is done, if there be nothing done by the court below, which can be regarded as erroneous, except what merely results from giving effect to the erroneous order overruling the demurrer, an appeal will lie without first making a motion in the court below to correct such error, which arose merely from the order overruling the demurrer improperly ; for these ought not to be regarded as errors in a decree on a bill taken for confessed, they are in point of fact errors substantially in the decree overruling the démurrer, which decree was of course not a decree on a bill taken for confessed. These principles are laid down by this Court in Steenrod v. Railroad Company, 25 W. Va., 133, and they accord with the principles laid down in Gates v. Cragg, 11 W. Va., 300.
But while those cases accord in these respects, they differ in another point: the decree or decrees entered, after the time has expired given by the rule for the defendant to answer on the overruling of his demurrer to the bill, may contain not only errors arising necessarily from the error committed in the decree overruling the defendant’s demurrer, but also errors in the subsequent decrees independent of those resulting merely from the erroneous decree overruling the defendant's demurrer and those resulting merely from giving effect to such erroneous decrees. If it does so, then the defendant can not without first moving to correct such error in the court below appeal from such subsequent decree or decrees, if he has filed no answer; for so far as the independent and additional errors are concerned, these decrees are regarded as decrees on bill taken for confessed, as they were not committed, when the demurrer was overruled. This full}' appears to be the position of this Court in the case of Steenrod v. Railroad Company, pts. 3 and 4 of syll. and from the opinion of Judge Snyder hereinbefore
The truth is, this Coui’t in Gates v. Cragg failed to note the distinction, which is well pointed out by this Court in the case of Steenrod’s Adm’r. v. Railroad Co. between the cases, where the errors complained of by the defendant in his appeal are errors necessarily resulting from the decree erroneously overruling the defendant’s demurrer, and the eases, where the errors complained of by the appellant, the defendant, include also other errors independent of those resulting from such order overruling the defendant’s demurrer. There is to my mind after dnlv considering the subject a clear distinction between the two cases. In the one the only error complained of in the final decree is an error necessarily resulting from the courts correctly carrying into effect a previous interlocutory order settling the principles of a cause and erroneously overruling the defendant’s demurrer to the bill; such final decree, though no answer had been filed, not being a decree on a bill.taken for confessed, but really simply a decree on the previous interlocutory order. From such a final decree an appeal lies, though no previous motion has been.made in the court below to correct the errors in it.
In McKinney v. Hammett, 26 W. Va., 628, which was a suit against the heirs of a dec-eased person to subject his. real estate to the payment of his debts, none of the defendants
If, for instance, the only ground, upon which the defendant sought to reverse the decree below, was, that the report of sale ought not to have been confirmed, but his exception to the report of sale ought td have been sustained and not overruled, how would it be possible to regard the decree confirming the sale as a decree on the bill taken for confessed within the true meaning of the statute which we are construing? Such a decree would not be based on the facts stated in the bill taken for confessed but upon facts occurring; after the bill was filed, and upon the sale of the land by a commissioner of the court under an order of the court. After the court had overruled the defendant’s'exception to the report of such sale and confirmed the sale, where would be the use or propriety in requiring such defendant, before he was allowed to appeal to this Court, to correct the error of the circuit court in overruling the appellant’s exception to the report and affirming the sale, to require him to make a formal motion after the decree was entered to have it set aside. The court would have entered the decree confirming the sale after considering all the objections, which the defendant could present to its confirmation and would have overruled all his exceptions to this report of sale. Would it not be worse than idle to require him, before he could appeal from
It would be worse than idle in such a case to require, that the defendant, after the court had entered a decree overruling all his objections to the commissioner’s report and confirming it, before he could appeal from such decree, should make a motion to have such decree set aside. To do so would in my judgment he requiring him, before his appeal was entertained, to do what would necessarily be utterly useless and unavailing. The case supposed -would, it seems to me, be clearly one, where the decree appealed from would not be properly speaking on a bill taken for confessed, though no answer had been filed; and it would thus not come within the words of the statute we are construing, and much less would it come within its true spirit and meaning as interpreted in the case of Sleenrod v, Railroad Corn-
In Moore v. Smith, 26 W. Va. 379, a demurrer was filed to the bill in the court below apparently merely for delay, the bill not being defective. The demurrer was overruled, and without giving such a rule to answer the bill, as our statute requires, the court below entered a decree for the sale of the land obviously defective and erroneous. This Court reversed the decree and remanded the cause to be further proceeded with properly. The record as presented to us was defective, parts of it being improperly omitted; but we thought, as no writ of certiorari was asked, and it was entirely obvious, that the decree of sale, which was entered, ought not to have been entered, that we could safely act on the defective record thus saving delay and expense. And an examination of this record now will show, that it does not appear from it, that a motion to correct the erroneous decree-was made, before the appeal was asked from us, as it ought to have been ; but our attention was not called by counsel to the fact, that the motion to correct this defective decree was never made, as it should have been, in the court below, nor was any motion made in this Court to dismiss the appeal as improvidently awarded ; and we failed to note in the imperfect coin
From this review of our cases I draw the following inferences as to the true construction of sections 5 and 6, chapter 134 of Code, so far as they prohibit an Appellate Court from entertaining an appeal because of án error in a decree on a bill taken for confessed, until after a motion to reverse or annul such decree has been made and overruled by the court below or by the judge thereof in vacation either in whole or in part.
First. — If a party, who is a formal defendant in the bill, has failed to appear in the court below in any manner cither by filing a plea, answer or demurrer, or by filing exceptions to the report of a commissioner in chancery or a commissioner of sale, which may be the basis of the decree complained of, and if he has failed to appear in any other manner, such a defendant can not appeal to this Court, till he has made a motion in the court below or to a judge in vacation to reverse or correct the decree he complains of,’ and the court below or judge in vacation has refused to do so in whole or in part. But in such case, if any of the defendants having a joint interest with him in the. matter complained of unite with him in the appeal and have answered the bill, this Court will entertain jurisdiction of the appeal and reverse or correct, if erroneous, such decree, though no such motion had been made or overruled in whole or in part before the awarding of the appeal.
Second.- — If a defendant in a bill files no plea or answer but files a demurrer, simply on the ground that the plaintiff on the facts stated in the bill is entitled to no relief against him, and the court below overrules such deipurrer and awards a pule agaipst him to an§wgr th§ bill at a specified títpe, ancl be
Third. — Though, when the defendant, the appellant, has never in any manner appeared in the court below, any decree against him whenever rendered will be regarded as a decree on a bill taken for confessed, and this Conrhwill not entertain his appeal therefrom unless he has first made his motion to correct it in the court below, yet the reverse of this is not universally true, and in many cases the decree will be regarded as one on bill taken for confessed, though he may have appeared in a variety of modes otherwise than by answer, on which the cause was heard, as, for instance, when he filed an answer but withdrew it, before the case was submitted to the court below on the hearing, or when he appeared simply to consent to a continuance or to a reference of the cause to a commissioner, and in a variety of other cases which might be suggested. . In such cases he could not appeal from any errors in such decree, unless he had first moved the court below to correct the errors in tl}<? decree, of which he com
So if in any chancery cause brought to have the defendant’s land sold for any cause he filed no answer, and on the bill taken for confessed his land was decreed to be sold, and when it had been sold, the defendant appeared and by exceptions to the report of sale resisted the confirmation of the sale, because the land had not been properly advertised or for any other reason, and the defendant’s exceptions were all overruled, £md the sale confirmed by a decree of the court,
Other examples of like character might be put in illustration.
The rule would seem to be, that, if the decree complained of in the Appellate Court is not based on any of the allegations of the bill taken as confessed but upon facts not appearing in the bill but introduced into the cause subsequently to the filing of the bill, and in addition thereto it appears by the record, that the defendant, the appellant, though he has filed no answer, has appeared in the cause and expressly objected to the entering of the decree by the court on these new facts claimed to have been proven, then such decree ought not to be regarded as a decree on a bill taken for confessed, and no motion should be required to be made in the court below to correct or reverse such decree, before an appeal is allowed the defendant; for he has in fact done really the same thing in effect as making such motion, when he objected to the entering of such decree on such alleged facts.
Applying this law to the case before us can we entertain the appeal, which has been awarded to the decrees of December 3,1883, and Noyember 29,-1884? The appellaut, Gran-
This is the decree, of which the appellant, Grantham, complains insisting, that this James D. Wiggington’s land or, more accurately, the seventeen and one half acres named in the bill, conveyed October 28,1874, to David Fry and then owned by his h eirs was first liable to pay the j udgment against J ames D. Wiggington, it beinginsisted that the evidence showed beyond all reasonable doubt, that he was the principal in the debt, in which this judgment was rendered, and that the real estate of the appellant, Grantham, was not liable, till this land of Wrigginton’s was sold, and the proceeds exhausted in the payment of this judgment. Has this Court a right to entertain this appeal from this decree obtained by Gran-tham? It seems to me, on the law, which I have laid down, we clearly have. This decree was not rendered on the facts stated in the bill taken as confessed. The facts stated in the bill with reference to the question really settled by this last decree appealed from, as to whether William J. Grantham or James D. Wiggington was principal in this debt to Burkhart & Son, were denied by David Fry, the only defendant who filed an answer, and a number of depositions were taken to prove and also to disprove them, William J. Grantham insisting and deposing, that they were true as stated in the bill (and had they been true, Wiggington would have been the principal and he but the security), and Wigginton insisting and deposing, that they were not true (and if the facts were as insisted upon by him, Grantham would have been the principal and he but the security in this debt). How it is clear, that the jury in finding by their verdict, as they did in substance, that Grantham was the principal and Wigginton
In this case the decree complained of in the Appellate Court is not based on any of the allegations of the bill taken as confessed but upon facts not appearing in the bill, but intro-trodueed by evidence before the jury on the trial of the issue, which were the reverse of the facts alleged in the bill, as we must presume from the verdict found thereon and from the refusal of the court below to set aside the verdict, and moreover the appellant has appeared in the cause and expressly objected to the entering by the court of this decree on this verdict. Such decree under the law, as we have stated it above, can not be regarded as a decree on a bill taken
There is still another preliminary inquiry to be made, before we can consider the merits of these two decrees appealed from. In the first of these decrees the court says: “The court is of opinion that the question as to whose lands should be first subjected to the lien of the judgment of Burkhart & Son against J. I). Wigginton and others as between the heirs of David Fry (the purchaser of the seventeen and a-half acres from James D. Wigginton), and William J. Grantham is one in which these co-defondants had a right to litigate in this suit.” If the court was right in this, then clearly it had jurisdiction to enter these two decrees appealed from, they being decrees made to settle this controversj' between these co-defendants, and we must examine these decrees on their merits and determine, whether they should be affirmed or reversed. But if tlie court below erred in this opinion, and these co-defendants had no right to litigate this question of controversy between them in this suit, then the court below had no jurisdiction to enter either of the decrees appealed from, and they must for this reason be reversed without any examination of them on their merits upon the evidence in this cause. A decree between co-defendants can be rendered only, where the equities between the defendants arise out of the pleadings and the proof between the plaintiff and defendants. (Vance, v. Evans, 11 W. Va. 342, point 1 of syll., and pp. 370-1; Barton’s Ch’y Pr. 805 ; Chamley v. Lord Durary, Sch. & Lef.; Burlew v. Quarrier, 16 W. Va. 109; Worthington v. Staunton, Id. 208; Hoffman v. Regan, 21 W. Va. 116-137; Heard v. Bailway Company, 26 W. Va. 460; Roots v. Mason City Manufacturing and Salt Company, 27 W. Va. 483-486 ; Blair v. Thompson, 11 Gratt. 446; Ould Carrington v. Myers, 23 Gratt. 381; Daniel Ch’y Pr. 841: Templeman v. Faunlleroy, 3 Rand. 434.)
These eases, it seems to me, show, that there is no doubt, but that, if the plaintiff, Watson, had a right to relief, such
As I understand the law, there can be no decree in any ease between co-defendants, where no decree can properly be rendered in favor of the plaintiff, whether this arises from the fact, that the bill does riot make out a cause, which entitles him to relief, or from the fact, that the proof does not sustain the case as set out in the bill (Hansford v. Chesapeake Coal Co22 W. Va., point 3 of syll., p. 70; Ould v. Meyers, 23 Graft. 384, pt. 3 of syll. and p. 404 et seq.). In Hubbard v. Goodwin, 3 Leigh 522-3, Judge Tucker speaking of this subject says:
“I am clearly of opinion, that the court ought not in this cause to adjust the transactions between the co-defendants Hubbard and Kennedy. None of the cases in which this court has decided between co-defendants, have gone so far. I think it has been done in no case where the plaintiff was not entitled .to a decree against both or either of the defendants. The practice should be extended no further. The contest, if any, between the defendants can never come fairly before the court. There is no issue made up, nor any provision for taking their testimony in reference to the peculiar matters between them. Indeed it does not follow that in answer to a plaintiff’s bill, the defendant should go on to*569 state bis own case in reference to bis difference with bis co-defendant."
In Glenn v. Clark, 21 Gratt. 85, Judge Staples says on p. 39 : “The practice of decreeing between co-defendants is not much favored by the court. There is an increasing disposition to extend that practice further than it has already been carried.” In this case the plaintiff was entitled to the relief he sought, and though'it was stated in the bill, that a controversy remotely connected with the plaintiff’s claim existed among the co-defendants, stating its character, yet as the settlement of this controversy between the co-defendants Avas not necessary for the decision of the plaintiff’s claim as stated in his bill, though the plaintiff might have au indirect interest in it, the court held, that it was not proper to enter any decree between the co-defendants as to this subject of controversy, as the equities betAveen them did not arise out of the pleadings and proofs between the plaintiff and defendants.
Blair v. Thompson et als, 11 Gratt. 441, is another case, in Avhich a decree between eo-detendants was refused, though the controversy between them was remotely connected with the plaintiff’s claim, the equities between them not arising out of the pleadings and proofs betAveen the plaintiff and defendants. Other Virginia cases ot this character, in Avhich the opinion of the court Avas against permitting decrees to be made between co-defendants, are to be found, though the plaintiff Avas entitled to relief in these cases, and the controversy betAveen the co-defendants Avas not entirely foreign to the case stated by the plaintiff in his bill (Allen v. Morgan,.8 Gratt. 60). I have found no case, in Avhich there has ever been a decree entered betAveen co-defendants, Avhere there has been no decree in favor of the plaintiff. _ The contrary is held in Arnold v. Miller, 26 Miss. 152. In delivering the opinion of the court Justice Handy speaking of decrees be-tAveen co-defendants on p. 155 says :
“It is contended on behalf of the appellee, that a court of chancery may make a decree betAveen co-defendants or in favor of one defendant against another, founded upon the facts stated in the plaintiff’s bill, Avhich is admitted by the defendant sought to be charged bjr his co-defendant. This*570 is true under some circumstances. It may he clone where the bill is maintained and the relief sought is granted against one or both defendants, between whom there may be adverse equities growing out of the complainant’s snit, and not ■inconsistent with it. These equities, arising from the relief decreed in the first instance, to the complainant, arc proper to be adjusted between all the parties to the suit, whose interests are involved in the subject matter of it, upon the principle of preventing multiplicity of suits. See 2 McCord’s Ch’y R. 470; Elliott v. Pell, 1 Paige’s Ch’y R. 368. The reason is manifest. .But when the claim of one co-defendant against another does not result from the recovery of the demand of the complainant against one or both of them we can not see upon what principle the right of one co-defendant to a decree against his co-defendant in that suit can be justified. Here the complainant’s bill was in effect dismissed.”
In truth the English courts have gone still further. It is there held that “the court will try a case between co-defendants, and the co-defendants will be bound by the result of such trial, where the plaintiff is entitled to relief, and can not obtain relief, unless that be done; but, if the relief to be given to the plaintiff does not require or involve the decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding, which may be necessary only to the decree the plaintiff obtains.” [Cottingham v. Earl of Shrewsburry, 3 Hare 627, (25 Eng. Ch’y. R.) See also 2 Sch. & Lef. 690, 709 and Farquharson v. Seton, 5 Russ. 45.]
It is not necessary in this case to determine, whether this doctrine as thus laid down by the English court should be followed. But I have no difficulty in saying, that whenever the plaintiff is entitled to no relief, because he has no case entitling to relief stated in his bill, or because he has failed to establish his case as stated in the bill, the court can not properly render any decree between co-defendants ; and this principle is all that is necessary to determine in this case, as it must lead to the reversal of both decrees appealed from. In this case the plaintiff’s bill, I think, on its face shows, that he is entitled to no relief in this suit; and therefore the decree of December 3, 1883,
The material facts stated in the bill are as follows : That the banking house of Burkhart & Son discounted for Wig-ginton a negotiable note for $1,000.00 drawn by him payable to Grantham and by him indorsed first and then indorsed by the plaintiff Watson as the second and last indorser; that this note not being paid at maturity was sued upon by Burkhart & Son and a judgment obtained on it for $1,105.50 and $18.09 costs in favor of Burkhart & Son at the April term, 1870, ot the circuit court of Jefferson county, W. Va. This judgment was against the maker Wigginton and each of the indorsers Grantham and the plaintiff Watson and was entered in the judgment-lien-docket of said county on April 25, 1870. Executions were issued on this judgment from time to time ; but they were all returned “no property found” till 1872, when an execution issued was levied on some wheat of the principal in this judgment, Wigginton, which was sold for $56.50 and this amount paid over to Burkhart & Son, and nothing else had ever been paid on the judgment; —that Wigginton when said judgment was rendered and docketed owned two tracts of land in said county, one of 139 acres and the other ot seventeen and one half acres, and
On this state of facts the plaintiff claims in his hill, that this land of Lewis Fry so purchased of Wigginton is first bound by said judgment of Burkhart & Son, and then the land of William J. Grantham, and only after their lauds have been sold, and the money applied to the payment of this judgment ought his, the plaintiff’s, lands be held bound for its payment; but as his land is bound also for this judgment, he is afraid it will be sold to pay the judgment, while Wig-ginton’s land, this seventeen and a-half acres, which he after-wards sold to Fry, will remain unsubjected to the payment of this debt; and the bill asks, that this tract of seventeen and a-half acres, which the defendant Wigginton had thus conveyed to the defendant Fry, should be first sold and its proceeds applied to the payment of this judgment in favor of Burkhart & Bon, and if it be insufficient, that then the real estate of defendant Grantham may he subjected to the payment of this judgment, before the plaintiff Watson’s lauds are subjected to its payment; and for general relief.
By this bill, it does seem to me, the plaintiff showed, that he was entitled neither to the relief he prayed nor to any other relief. Tt was a hill quia timet; and it was not good as such a bill, as it entirely failed to show any cause for his alleged fear, that his land might be subjected to the payment of this judgment in favor of Burkhart & Bon, while the land of Wigginton and the lands of Grantham remained unsub-jected to the payment of the judgment. If Burkhart &Son had neglected or refused to institute any suit upon this $1,000.00, in which, as stated in the bill, Wigginton was not
“With the utmost deference to the judgment of the supreme court, I can not yet find the -evidence, that a surety was ever before held discharged by such-means. Where the cases all speak of a right of a surety to coerce the creditor to sue,, by means of an application to chancery, they imply, that he can not do it by merely calling on the creditor or by any notice or act in pais. The cases of a discharge are all founded on the fact of a new agreement between the debtor and creditor varying the contract by which the security originally stood bound. This was the principle in the case of Ludlow v. Simond, 2 Caine’s Cases in Error 1. When the surety has ample and well settled means of relief, through the medium of a court of equity, which will at once comped the creditor*574 to do his duty, it is not necessary, and, as I humbly apprehend, not expedient, to introduce a pew principie-of action between creditor and surety. Will it not open a litigious enquiry as to the certainty and efficiency of the notice.”
This case was taken to the court of errors, where the court being equally divided, as to whether the decree of the chancellor based on the views above stated should be affirmed or reversed, it was decided by the president’s vote that it should be reversed (King v. Baldwin, 17 Johns. 384). It seems to be assumed by the chancellor, who decided this case, that the creditor by resorting to chancery by a bill quia timet may compel the creditor to sue the principal debtor; this was unquestionably the right of the surety in most eases, yet it is not admitted to be universally7 his right. Thus Pratt, judge, in King v. Baldwin, 17 Johns. 396, says :
“By the law of such contracts, the surety as original co-obligor or promissor, stands in the same relation to the creditor as the principal debtor, so long as the contract remains unaltered by the act of the creditor, wdth the acknowledged right of the surety, at any time after the moneys become due, to pay the debt and to sue his principal, at his own risk, for indemnification. The surety may, also by' resorting to chancery in most cases, compel the creditor to sue the principal debtor. I say in most cases ; for in answer to a bill for that purpose, the creditor may show a state of facts which would destroy7 the equity of such application. It is not of course to compel such suit against the principal; and hence, the reason, I apprehend for requiring the surety to resort to a court of equity for that relief.”
This is entitled to more consideration as Platt hadconeurred in Pain v. Packhard but in this case.admitted he had been •wrong. This will suffice to show the diversity of opinion, which existed, and the propriety of the passage of the statute, to which I have referred, whereby' the surety may release himself from his obligation, unless, when his principal is solvent, the creditor will sue him when required to do so by a written notice given to him by the surety.
In Virginia it was decided, that prior to the passage of an act like this in 1794 a surety in a bond was not absolved from the obligation by the failure of the obligee to sue after being
“When the suit was brought (a bill quia timet) the surety the appellant had not paid the debt and probably has not yet paid it. But he is entitled nevertheless, the debt being due, to come into equity by a bill quia timet against the creditor and the debtor, and compel the latter to make payment of the debt so as to exonerate himself from his responsibility. Story’s Eq. Jxir. § 327, 639 & 849. He may enforce for his exoneration, any liens of the creditor on the estate of the principal; and if the latter be dead, may bring any suit in equity which the creditor could bring for a settlement of the administrative account of the estate of the decedent, and for the administration of the assets, whether legal or equitable. The difference is that he must bring the creditor into court*576 along with him, in order that he may receive the money when it is recovered. The appellee therefore had a right to bring this suit for the recovery of this claim. lie ought to have brought it not only for himself but for all the other creditors of Baldwin (the. deceased principal debtor) who might elect to become parties and contribute to the costs of the suit. * * * All the creditors were necessary parties at least in a general way. The creditor who was entitled to recover the debt, for which the appellant was bound as security should also have been a party; and so should the heirs and devisees of Baldwin who were interested in the real estate, sought to be marshaled and applied as equitable assets. The suit was therefore defective for want of parties; but it ought not on that ground to have been dismissed. The appellant should have been permitted to answer his bill and make the necessary parties; unless a decree for an account had been made in some other creditor’s suit, having in view the same objects; in which case it would have been proper to have staid or dismissed the appellant’s suit, and required him to become a party to the other suit by petition or motion or proving his claim before a commissioner. If several suits are pending in favor of different creditors, the court will order the proceedings in all the suits but one to be stayed and will require the several parties to come in under the decree in such suit, so that only one account of the estate may he necessary. • (Story Eq. Pl. § 100 note 2; Hallett v. Hallett, 2 Paige 15; Ross v. Craig, 1 Paige 416 note a).”
The claim, which the plaintiff by his bill sought to have enforced against the estate of his principal, was a note given for the purchase of a lot, in which the plaintiff in this chancery suit was the surety oh the principal, the purchaser of the lot. There can be no doubt, that upon the principles laid down by Judge Moncure in this opinion, the correctness of which I do not mean to dispute, the plaintiff in that suit, the surety on the note given for the purchase of the lot, could, as soon as the note became due, have brought a suit in equity in the form of a bill quia timet to compel the payment of the note by the principal in it; and if it was a lien on this lot as a part of the unpaid purchase-money, which it may or may not have been, its payment might have beou enforced
But the case stated in the bill is entirely different from the case, which would have existed, had Burkhart & Son neglected or refused to sue the principal and all the indorsers on this note, which was the case before the court in Stephenson v. Tavenners, 9 Gratt. 398. For in this case the bill stated not only, that Burkhart & Sou had brought such a suit on this $1,000.00 note, hut also that they had obtained a judgment upon it and had it promptly put upon the judgment-lien-docket of the proper county making this judgment a lien on the real estate of both the principal Wiggiuton and the first endorser Grantham ; and that in addition to this he had issued repeatedly writs of fieri facias on the judgment and placed them in the hands of the sheriff thus making them liens on all the personal estate including the chosen in action of the defendants Wigginton and Grantham under ch. 141 sec. 2 of the Code p. 671. Thus Burkhart & Son had already before the institution of this suit according to the allegations of the hill given to the plaintiff, Watson, certainly the principle advantages, the failure to give which according to Judge Moncure’s opinion above cited is the principal reason for per-,
I do not say, that after that Watson could under nocircum-stances have brought his bill quia timet to relieve himself from the obligation, which ho incurred by becoming the second indorser on the note; but it seems to me, that such a bill quia timet would be dealt with by the court upon the gen eral principles, which govern a court of equity in entertaining such bills in other cases. Now it is a fundamental principle, that the application for this species of relief' is addressed to the sound discretion of the court under the circumstances of the particular case; and relief of this sort will be ordinarily afforded, when injury may reasonably be apprehended. (1 Barton’s Cli’y Pr. 284). The following are authorities referred to by 8 Daniel Ch’y Pr. 1901 note, as sustaining this general rule : Tucker v. Kinniston, 47 N. H. 270-1; Pellet v. Shephard, 5 Paige 493; Scott v. Onderdouk, 14 N. Y. 9; Lounsbury v. Purdy, 18 N. Y. 515; Shettuck v. Carson, 2 Cal. 588; Guy v. Hemaner, 5 Cal. 73; Dean v. Madison, 9 Wis. 402; Lewis v. Stone, 3 Ala. 485; Commercial Mutual Insurance Company v. McLean, 14 Allen 351. I have examined these cases; and the principles above laid down maybe deduced from them, though some of them are not cases, which I would have selected as illustrations of this principle, fn the case of Tucker v. Kinniston, 47 N. H., 270, the principle controlling the application for relief by a bill quia timet is laid down in almost the language I have used above.
In the present case the bill shows no reasonable ground for the apprehension of injury on the part of the plaintiff. The bill alleges facts, which show, that the debt to Burkhart & Son, which, he says in his bill, he is afraid his land will be sold to pay, while the land of said Wigginton will remain nnsubjected to its payment, is now a lien on all the real estate owned by both Wigginton and Grantham, as well as all the
*580 “Thus ou the 2d day of November, 1874, in a chancery causeo! Wigginton v. Halderman, in the circuit court ot Jefferson county, West Virginia, the 139 acre tract of said Wig-ginton’s land was sold and the money applied to the payment of the lien by deed of trust in favor of said Wra. J. Grantham, and that his lien being wholly released by the sale of the said tract of land, the judgment in favor of Burkhart & Son became the first lien on the residue of the real estate of the said James D. Wigginton, to-wit: seventeen and one half acres six polos of land; even supposing the lien by deed of trust in favor of said Grantham embraced the said seventeen and one halt acre tract: but your orator is informed that in the said suit of Wigginton v. Halderman. it has been decided that it was not embraced in the said deed of trust.”
The inference, I think, to be drawn from this statement is, that this tract of seventeen and one half acres might be in said cause of Wigginton v. Halderman now pending subjected to sale to pay this judgment in favor of Burkhart & Sou, if as alleged it is the first lien upon this tract ot land. But of course nothing certain can be even surmised in reference to what might be done in that case, as the bill entirely fails to 'state its character or purpose. As he could without difficulty have definitely informed himself on this subject and might have made it a part of the record in this cause by simply doing so' and asking, that it might be heard with this cause, the fair inference is, that he has designedly withheld the record in that cause from the court in the hearing of the present suit. Linder these circumstances it is but a just inference, that, if the plaintiff in this suit chose to have this seventeen and one half acre tract sold in that cause, he could do so, it he could really show, that it was subject to this judgment of Burkhart & Son as the first lien upon it, and it was necessary to save the plaintiff from any loss by reason of his having become the last indorser on this $1,000.00 note, on which this judgment in favor of Burkhart & Son was rendered.
As the application for the relief prayed for in this bill quia timet is addressed to the sound discretion of the court under all the circumstances, and the granting of the relief, as a judgment has been obtained on the note, on which the
These decrees being reversed for this reason, this Court must render such decree; as the court below should have rendered ; and the hill of the plaintiff below, Josiah Watson, must be dismissed, and the defendants below must recover of him their costs in the circuit court of Jefferson incurred, and the appellant, J. W. Grantham, must recover of the appellees, A. H. Tanguary, administrator of David Dry, to be paid out of the assets of his intestate’s estate and against the appellee Josiah Watson and James D. Wigginton his costs in this court expended.
iTo leave should be given to said Josiah Watson to amend his bill, as there is nothing in this record, which indicates, that any amended bill could be filed, which would entitle him to any relief. On the contrary the indications are, that, if all the facts had been stated in the bill, it would have been much more clearly a bill, on which no relief could be granted, than it now is. It is, for example, stated in the answer of David Fry, one of the defendants, “that this judgment in favor of Burkhart & Pon is the earliest judgment-lien upon the real estate of Wm. J. Grantham. It is so reported by commissioner Moore in the case of Andrew MeCleary against Wm. J. Grantham; and the said commissioner reports the pioperty of the value of $8,000.00 or $9,000.00 as liable to that first preferred lien except one
It is obvious, that, if these allegations are true, it is on the principles, which we have laid down, most obvious, that this bill of the plaintiff, Watson, could not be amended so as to show any case, on which he would be entitled to any relief. It is certainly very strange, that some portions at least of this cause of Andrew Me Clary v. William J. Grantham was not filed with this answer or at any time in this cause; and that, (what strikes one as singularly strange), is that the contents of portions of this record not pretended to be lost were attempted to be proved by depositions. On the other hand, William J. Grantham never filed any answer to this bill, and Josiab Watson never proved, as he could without the least difficulty have done, if such was the fact, that these allegations above quoted were false. On the contrary he never even replied generally to this answer or replied to it in any manner.
The inference I draw is, that on the principles, which I have laid down, Josiah Watson could not file an amended bill, which would show ho had a right to any relief, because he had reasonable ground to apprehend he would suffer injury. He is not entitled to have the cause remanded with leave to file an amended bill. This right he would not have, unless it appeared in the cause, that he could amend his bill so as to make it a good bill, and certainly7 this does not affirmatively appear, as it should, to entitle him to this leave to amend his bill in the present stage of the cause.
Reversed. .Dismissed.