65 W. Va. 219 | W. Va. | 1909
Wiggin is plaintiff and Mankin defendant in a proceeding begun by Wiggin before a justice in Raleigh county, under section 2102, Code 1906, to try the right and interest claimed by-him to about forty thousand feet of .lumber, situated on the
The facts proven on the trial in the circuit court, and not the evidence, are certified here by bill of exceptions. They show that Wiggin’s claim to the lumber was based upon a tripartite' contract with McGinnis, made April 2, 1906, separately signed, but to which there was but one joint acknowledgment by the parties, recorded in Raleigh' county, April 14, 1906. By the first part of the contract McGinnis, in consideration of $1.00, undertook to lease “to said Wiggin a certain lot of land upon which shall be piled the logs or the lumber resulting therefrom,
Mankin claimed the right to subject the lumber to the payment of his debt for purchase money, not only by virtue of his judgment and execution against McGinnis,but by right of his contract with McGinnis and possession thereunder, made March 10, 1906.. This contract provided, “That in consideration of ($150.00-100) paid, receipt of which is hereby acknowledged, the party of the first sells, grants and conveys to the party of the second part a certain boundary of timber in the Co. of Raleigh, W. Ya. bounded and described as follows: All timber on the East of the road of the Locust ridge road and Hank C. Lemens, Lewis Snuffer, supposed to contain 100 M. more or less, at $6.00 per M on skidway at mill. The party of the second part agrees to pay to the party of the first part for said timber $100. the 15th of July, 1906 and furnish expense of logging & cutting same and the remainder to be paid Jan. 1st 1907.- (The party of the first part to hold 1-3 of same on the stick on yard until paid). This contract shall include the timber adjoining the Jas. Acord tract to be sawed at the Jo's. Meadow school house.” This contract was never recorded.
The contract of Mankin with McGinnis does not provide where the mill was to be set, or the yard in which the lumber to be piled on stick was to be located, but it is agreed that Mankin required McGinnis to locate his mill on Mankin’s land, where the timber was, and where he required McGinnis to saw the logs and stack the lumber on stick, and that all the lumber in controversy here was manufactured from the timber sold Mc-Ginnis-'by Mankin under said contract, and that the lumber in controversy here at the time it was levied on and taken by plaintiff was still on the land of Mankin, at the mill and on the mill yard, where Mankin had required the mill to. be located and the lumber to be stacked. It was proven on behalf of Wiggin, that about 120,000' feet of lumber had been cut from the land of Mankin and that Mankin had not separated the one third of the lumber reserved or attempted to be reserved, in his contract with McGinnis, from the other two thirds
It is claimed by Wiggin that whatever rights Mankin may have had to said lumber as against McGinnis, that his rights as purchaser, under his contract with McGinnis, are paramount and superior to those claimed by Mankin; that as Mankin’s contract was not recorded, so as to give him notice thereof, and provided for the severance of the timber, and its conversion into personal estate, its provision entitling Mankin to retain one third of the product on stick until payment of all of the purchase money, in' law amounted simply to a pledge of the lumber, without separation from the two thirds, and reduction thereof to possession, was invalid as against Wiggin, and that Mankin is not entitled, as against him, to hold the lumber, either by virtue of his execution against, or of his contract with McGinnis. While it was proven that Mankin had not actually separated the lumber reserved, yet Wiggin proved that the lumber cut from Mankin’s land amounted in all to about 120,000 feet, the 40,000 feet remaining thereon constituting about one third of
But Wiggin claims, as his contract was recorded and Mankinds was not, he is entitled to the lumber, as an innocent purchaser thereof without notice. His contract with McGinnis told him that the timber from which the lumber was to be manufactured was standing on Mankin’s land. He knew Mankin was in possession of the land, and that McGinnis professed to have bought the timber from him. He was bound to know the source of Mc-Ginnis’s title, and the character thereof; his contract with McGinnis pointed to Mankin as the source of title, and so long at least as the timber remained standing, and the lumber remained on the land of Mankin, and in his possession, actual or constructive, Wiggin was bound to take notice of his rights, if any. By the attempted lease to Wiggin of a “certain lot of land” upon which the logs and lumber should be piled, the purpose no doubt, was to give Wiggin possession of the logs and lumber as delivered and stacked thereon. But that same lease gave Wiggin notice that the land was the property of Mankin. What right had Mc-Ginnis to lease him Mankin’s land ? The only right he had was covered by his contract with Mankin. Wiggin acquired no right thereto not covered by said contract; he held under it, and was bound to know what it contained. Besides, we see from part third that McGinnis thereby only, “agrees to sell and Wiggin agrees to take from . during the year 1906,” a certain quantity of lumber. The agreement to sell, and the agreement to take was hardly sufficient to pass title to either the timber or the lumber, and the contract does not seem to have contemplated passage of title until delivered to Wiggin by McGinnis “f. o. b. cars at loading point,” as provided in part second of the contract. It is true that by the third part of the contract McGinnis undertook to invest in Wiggin the title to all logs bought by him on this contract, and the lumber resulting therefrom until Wiggin
But the status of Mankin, as we construe his contract with McGinnis, is neither that of vendor having retained title to goods delivered, nor that of pledgee thereof. The claims of Wiggin in relation thereto, we think are fully answered by prior decisions of this Court. The lien claimed by Mankin is under that clause of his contract prohibiting removal from the land before payment. Such lien, as was said by this Court in Buskirk Bros. v. Peck, 57 W. Va. 360, 370, “is well known to the law as the seller’s lien for purchase money;” and, as is there held, although retention of the possession of the property until payment is essential to its existence, yet possession may be constructive or actual, and where goods are sold, counted out and
Did Mankin lose his lien bjr pursuing McGinnis to judgment and levy of his execution on the lumber claimed? Mankin had not parted with his possession; he had a right to judgment against McGinnis for what McGinnis owed him. In the case of Curtin v. Isaacsen, a part of the property in controversy was certain timber from the lands of one Scott, which Scott had sold to Isaacsen, and which he had agreed to saw into lumber for Isaacsen, and having sawed it accordingly, had brought a chancery suit, and levied an attachment upon the lumber to cover the debt due him from Isaacsen therefor, claiming also, that as the lumber was still on his land, he had a lien for its price, as well as an attachment lien thereon. The controversy in that suit was between Curtin & Co., claiming said timber by jmrchase from Isaacsen, and certain creditors of Isaacsen. The decree of the court below awarding to Scott preference for his debt on the lumber which he had sold to Isaacsen, was, on appeal affirmed by this Court.
Affirming that the position of Mankin is that of pledgee of the property, we are cited by counsel for Wiggin to 16 Ency. PL & Prac., 636, for the proposition, that a creditor who holds property in pledge, and sues and attaches the property pledged, waives
But whatever may be the law respecting the rights of pledgees of property, when attaching the property pledged as the property of the pledgor, there seems to be no question that the lien of the pledgee is not lost by judgment against the pledgor,' and^execution levied on the property pledged, unless there is manifest intention on the part of the pledgee to abandon his lien, not manifested by judgment and execution thereon. It is conceded that the pledgee would have a right to expose the pledged property to sale to satisfy his debt, and by obtaining judgment’ and execution and a sale bythe officer as his agent in satisfaction of his debt, there is no manifest intention to abandon the lien of his pledge; and, as was said in Jones v. Scott, 10 Kans. 37, “then as the judgment does not destroy the lien what valid objection can there be to having an execution issued, and having an officer of the law give notice and sell according to law?” Referring to this case a later Iowa case says: “The authorities cited by appellees to support that rule show in every case, or warrant the belief, that the party intended the act charged as constituting a waiver.” Valley Nat. Bank v. Jackaway, 80 Iowa, 512, 516. In the ease just cited it was claimed that the plaintiff by obtaining a judgment and execution, and placing a note pledged in the hands of the sheriff for sale on a general execution, instead of a special one, divested the plaintiff of his lien by
But«it is said the verdict and judgment as to the value of the property can not be sustained because there was no proof thereof. It was agreed, however, that some 40,000 feet of lumber was levied on, and at the price per thousand feet which it was shown Wiggin agreed to pay for it, it exceeded in actual value the sum found by the jury, and the verdict and judgment is fully supported, we think, by these facts.
These views require affirmation of the judgment below, and sufficiently respond to all other questions presented by bills of exceptions to instructions given and refused, motion in arrest of judgment and motion for a new trial, and we need make no further response thereto.
Affirmed.