Anderson v. Nagle et al.

• Citation: 12 W.Va. 98
• Court: Supreme Court of West Virginia
• Decision Date: 12 December 1877
• Parties: Anderson v. Nagle et al.

12 W.Va. 98

Anderson

v.Nagle et al.

Supreme Court of Appeals of West Virginia.

Decided December 12, 1877.

1. A contract in writing was executed for the sale of land, before judgments were obtained against the vendor, and the deed executed in pursuance of said contract was not recorded until after the said judgments were duly docketed and the contract was never recorded. Such contract, and deed are void as to such creditors; and the land so contracted to be sold, and so conveyed is subject to the satisfaction of the judgments.

2. An authenticated copy from the recorder's docket of an official

abstract of a judgment, docketed under the provisions of the 3d and 4th sections of chapter 139 of the Code, is evidence that such abstract was docketed, and when, and of notice to purchasers of land upon which the alleged judgment is claimed as a lien, when the existence of such judgment is properly proved; but where the existence of the judgment is put in issue by a distinct denial in the answer, an authenticated copy of such abstract, as docketed by the recorder, will not be received as proof of the judgment, and dispense with the necessity of producing an authenticated copy of such judgment.

3. But when the bill exhibits such authenticated copies from the

recorder's docket of official abstracts of judgments so docketed, and distinctly alleges the recovery of such judgments in a court of competent jurisdiction within the State, and these facts are not controverted by the answer, they are to be taken as true for the purpose of the suit, and no proof is required to show the same.

4. Where two judgments are recovered, one in 1868 and the other

in 1869, and the one last recovered is docketed in 1870, while the one first obtained is docketed in 1871; but both are docketed before a contract in writing or deed to a purchaser for valuable consideration without notice is recorded, the judgment first recovered though last docketed has priority.

5. It is error in a decree, for which it will be reversed, to order the

sale of real property without fixing the amount and priorities of the liens charged upon it.

6. It is wholly unnecessary to refer a cause, in which it appears

there are but two judgment liens, to a commissioner to ascertain the amount and priorities of liens, where the pleadings and proof show clearly what they are.

7. And where the court below has failed upon such pleadines

and proof to ascertain the amounts and priorities of the liens under such circumstances, hile the Appellate Court will reverse the decree, it may enter such a decree as the court below should have entered.

8. Where a suit in chancery is instituted to enforce a judgment

lien, and the bill alleges that there is but one other judgment lien on the real estate sought to be held liable to the satisfaction of the judgment, and sets it up also as a lien on the land, tne decree should provide for the payment of both judgments, if the land is subject thereto.

An appeal from and supersedeas to a decree of the circuit court of Wood county, rendered at the June term 1876, of said court, in a cause in chancery, in which George W. Anderson was plaintiff, and First National Bank of Parkersburg and Julia H. Nagle were defendants, granted upon the petition of said Julia H. Nagle.

Johnson, Judge, who delivered the opinion of the Court, furnishes the following statement of the case:

In November 1871, George W. Anderson filed his bill in the circuit court of Wood county, alleging the recovery of a judgment against A. L. Peadro, in 1868, in the circuit court of said county for $853.33, with interest and costs subject to certain credits, that an execution issued thereon, and was returned "no property found;" that said judgment was duly docketed; and exhibited the abstract thereof so docketed; that at the time said judgment was docketed, said Peadro was seized and possessed of a certain lot, to-wit, a part of "lot No. Ill," in the city of Parkersburg, and exhibited the deed from Cain and wife to said Peadro therefor; that there were no other liens on said property, as far as plaintiff was able to ascertain, except one in fayor of the First National Bank of Parkersburg for $250.00, with interest and costs, an abstract of which judgment is filed with the bill; that after the docketing of the plaintiff's judgment, there was placed in the recorder's office of Wood county a deed of conveyance from said Peadro to one Julia H. Nagle for said property, which deed was recorded on the 21st day of July 1871, a copy of which conveyance was filed with the bill. The prayer of the bill is, that said Peadro, Julia H. Nagle and the said bank, be made defendants to the bill; and that they answer the same on oath; and that plaintiff might have a decree to sell said real estate for the payment of his judgment; and for general relief.

The exhibits filed with the bill and the abstracts of the judgments are as follows:

Docketed June 16, 1871.

Teste:

W. H. Smith, R. W. C.

Copy Teste:

W. H. Smith, R. W. C.

Teste: Copy Teste:

Edw. M. Hoit, E. W. C. W. H. Smith, E. W. C.

The defendant Julia H. Nagle, answered the bill, in which she says she knows nothing of the indebtedness of" A. L. Peadro, as set out in the bill, or of the liens set up against the lots purchased by her of said Peadro; that said Peadro sold her the lot for $600.00 on the 16th day of January 1865, which contract in writing then made by said Peadro to her for the sale of said property, she exhibits with her answer; that she had paid all the purchase money on said lot; that as soon as she bought said lot she took possession thereof, and built a new house upon it, and has lived upon and claimed the same from that time to the present; that said Peadro made her a deed for said property pursuant to said contract, a copy of which she says is filed with the bill; that she is "advised by counsel, and charges, that the judgment of complainant does not constitute a lien on said lot, because said judgment was not obtained, when respondent had purchased said lot, and was in possession of the same under her contract of purchase as aforesaid; and that said judgment was not docketed according to law until the 16th day of June 1871, and respondent's deed was admited to record on the 20th October 1870; and said judgment never was docketed within the time required by law." She denies that she ever had any personal knowledge whatever of said judgment and was wholly ignorant of it, until after the institution of this suit.

The defendant further says: "that although the said deed was acknowledged by said Peadro, on the 20th October 1870, before the recorder of Wood county, yet the said deed was left with said recorder by said Peadro to be recorded, and to go on record as soon as the dower was released by Mrs. Peadro, who was sick. It will be seen that the dower was released on the 26th of June 1871, and the deed recorded by the recorder on the 21st of July 1871." That she is advised that said Peadro parted with all his interest, when he signed and acknowledged the deed on the 20th of October 1870; and that he had no interest whatever in said lot on the 16th June 1871, when plaintiffs, judgment was recorded; that plaintiff was neither a creditor, nor subsequent purchaser without notice of respondent's rights; that the plaintiff's debt and judgment was long subsequent to the deed to respondent; she avers that she has not only an equitable, but a legal title to the said property, and that plaintiff's judgment cannot offset it, and prays that she may be hence dismissed &c. The bill was taken for confessed as to defendants Peadro and the bank; and there was a general replication to the answer of defendant Julia H. Nagle; and no depositions were taken in the cause on either side. On the 23d day of June 1876 the cause was heard on the bill taken for confessed as to the defendants who had not answered, the answer of the defendant Julia H. Nagle with general replication thereto, and exhibits filed; and was argued by counsel; and the court decreed that the judgment of plaintiff and also the judgment of the bank were liens on said lot prior to the recordation of the deed to defendant Julia H. Nagle; and that said two liens were the only liens entitled to hold said property subject to the satisfaction thereof; and that unless the said defendant Peadro, paid the plaintiff's judgment within twenty days from the time the decree was entered, or unless the said Julia H. Nagle, or some one for her, paid the same, then Dave D. Johnson, who was by said decree appointed a commissioner for the purpose, was directed to sell said property, to pay the same, &c.

From and to said decree an appeal and supersedeas were allowed.

W. H. Small and D. H Leonard, for the appellant. John A. Hutchinson, for the appellee.

Johnson, Judge, delivered the opinion of the Court:

The first question presented is: was the lot of ground sold and conveyed by A. L. Peadro to Julia H. Nagle, subject to the liens of the judgments recovered by plaintiff and by the First National Bank. The judgment of plaintiff, was recovered at the October term 1868 of the circuit court of Wood county, and docketed June 16, 1871, and the judgment ot the bank was recovered at the fall term 1869 of said court, and docketed January 20, 1870. The contract in writing for the sale of said land was made by Peadro to said Julia H. Nagle on the 16th day of January 1865, but was not recorded; the deed was executed pursuant to said contract on the 20th day of October 1870, and acknowledged the same day before the recorder of Wood county by A. L. Peadro; and was acknowledged before a notary public by the wife of said Peadro on the 26th day of June 1871, and was admitted to record on the 21st day of July 1871. Sections 4 and 5 of chapter 74, of the Code of West Virginia are as follows:

"Sec. 4. Any contract in writing made, in respect to real estate or goods and chattels, in consideration of marriage, or made for the...