Hyre v. Hoover

• Decision Date: 31 July 1868
• Court: West Virginia Supreme Court
• Parties: Peter J. Hyre v. William Hoover and J. M. Jones.

3 W.Va. 11

Peter J. Hyre

v.William Hoover and J. M. Jones.

Supreme Court of Appeals of West Virginia.

July Term, 1868.

1. If a complainant in a bill of injunction that is at rules, appears in term by counsel and contests a demurrer, he thereby waives the right of notice, if any was necessary.

2. Where a bill of injunction is improvidently awarded because there is no ground of equitable relief charged in the bill, it may be dissolved on motion without answer, and it is not error to dissolve it on a demurrer.

3. If a court of equity dissolve an injunction granted to restrain a trustee from selling property, it cannot retain the cause for the purpose of ordering a sale under its own supervision.

Peter J. Hyre obtained an injunction from the judge of the circuit court of Pendleton county in May, 1866, staying the sale of a certain tract of land by John M. Jones, trustee. The bill alleged that in March, 1860, the complainant executed a trust'deed to Jones to secure a sum due to one William Hoover in a certain tract of land in the county of Pendleton, and also conveyed certain personal estate to the trustee, providing that if the sum due was-not paid on or before the 5th day of August, 1861, that the trustee should sell the property conveyed, or so much as might be sufficient to pay it off, after thirty clays' notice; that the debt was not paid when it was due, and that afterwards, in July, 1863, the complainant requested the trustee to sell the property and pay off the debt; that the trustee refused to do so because he was conniving, as the complainant alleged, with Hoover to find him at some future time without sufficient personal property to satisfy the debt. He further alleged that he afterwards offered the personal property and the land to the said Hoover and requested sale of the same, and that Hoover refused the personal property and also to permit the sale to be made; that he gave notice and sold the personal property himself, at which sale Jones and Hoover were present and offered no objections thereto, and that after the sale he offered to pay Hoover his indebtedness but he refused to receive it. He alleged finally, that the trustee had advertised the property, of which nothing but the land remained, to be sold on the 26th day of May, 1866, and which sale would, owing to the state of money affairs then, bring great sacrifice to him in the price. He asked that the trustee be restrained from making the sale, and that such other relief be granted as might seem proper. The complainant gave bond on the 24th day of May, 1866. He subsequently filed an amended bill at May rules, 1867, making Jones and Hoover parties to the bill, which had notbeen done by the original bill. The defendants were duly summoned. At the succeeding rules the bill was taken for confessed, unless they should appear at the next rules and answer. Before the expiration of the rules at which the defendants were to answer, the circuit court of the county was in session and the defendants appeared in court and demurred to the bill, and asked that the injunction be dissolved; and after considering the bill and exhibits, and the demurrer, and after hearing counsel in opposition to the defendant's motion, the court ordered that the injunction be dissolved.

Joseph Sprigg for the appellant.

The following argument was filed by appellee Hoover: The facts of this cause as presented by the record are simply these:

Up to the 15th of March, 1860, the appellant Hyre had borrowed of the appellee Hoover the sum of 1.419 dollars and 70 cents, and on that day executed.a deed of trust on a tract of land and some personal estate to secure its payment The deed to Jones, the trustee, provided that if the mone was not paid by the 5th of August, 1861, the trustee should sell the property, on thirty days notice, at the request of either party and pay the debt. The debt not being paid in the year 1866, the trustee advertises the sale of the land (the only property left), and the appellant obtains an injunction to the sale.

The bill states that about July, 1863, (when there was no circulation in Pendleton but Confederate treasury notes) the appellant Hyre called upon the trustee to sell under the trust deed, but that he refused to do so; that the appellant then offered all the property in the deed to Hoover in payment of the debt and he refused it, whereupon the appellant sold the personal estate (for Confederate money, of course,) and offered to pay Hoover his debt which he refused to receive.

Now is there anything in this state of facts to justify the injunction granted to the appellant? The appellant takes the case in his own hands, sells a large portion of the trust property, converts the proceeds to his own use, not paying-one cent of the debt. No trust can fail for the want of a trustee, and if the trustee had improperly refused to sell, a court of equity would have granted a remedy, but it must be remembered that at that time (July, 1863,) a stay law existed both in Virginia and West Virginia prohibiting any such sale. And even if the appellant had tendered to Hoover his debt, in good money, (which is not alleged in the bill), that part would not justify the injunction awarded in this cause. Shumaker vs. Nichols, 6 Grat., 592. Thus it is apparent that there is no equity in the bill and the injunction was improvidently awarded. t But the appellant's counsel argues that as the case was at rules, it was error to permit a demurrer to be tiled and to dissolve the injunction. Courts of equity are always open to grant and to reinstate injunctions and to dissolve those improvidently awarded. This cause stands alone upon the bill and if the bill does not present a case for relief in equity there is no necessity for an answer or demurrer; a motion to dissolve the injunction is all that is necessary. 2 Tucker p.-488; 4 Johnson's Ch. Rep., 173; Hilliard on Injunctions, 83 and 84; 3 Green's Ch. Rep., 222; 5 Howard's Miss. Rep., 43; Slack vs. Wood, 9 Grat., 43; ...