Atherton v. Hull

• Decision Date: 12 December 1877
• Citation: 12 W.Va. 170
• Parties: ATHERTON et al. v. HULL et al.
• Court: West Virginia Supreme Court

12 W.Va. 170

ATHERTON et al. v. HULL et al.

Supreme Court of West Virginia.

December 12, 1877

Absent, HAYMOND, JUDGE.

A institutes a suit in chancery, for the purpose of compelling the execution to himself of a deed by trustee for land sold under a deed of trust, and to have a decree over against the administrate, of the first assignor, (there being two) of the bonds secured by said deed of trust, for the unpaid balance due on said bonds, and the bill makes defendants, the trustee, the administrator of the first assignor, and also the second assignor. Held:

1. That chancery has jurisdiction of the cause; and that section 16 of chapter 99 of the Code in such a case does not affect the jurisdiction.

2. But to authorize a decree over against the administrator of the remote assignor for any unpaid balance due on the bonds, the bill must allege, and the proof must show, that the assignee had used due diligence in pursuing his remedy against the original debtor, without avail, or a good and sufficient excuse for his failure so to do; and as there were no such allegations in the bill it was properly dismissed at the hearing, as to the personal representative of the remote assignor, and also as to the second assignor.

The bill charged that the trustee had refused to execute the deed, without reason, and the trustee by his answer, while giving as a reason for not executing the deed, that he had been enjoined until shortly before filing his answer, from so doing, and that the plaintiff had never tendered him his commission, yet averred in his answer, that he had executed the deed and was ready to deliver it upon payment of his commission; and the court dismissed the bill as to all the parties: Held:

3. That so much of the decree as dismissed the bill as to all the defendants, except the trustee, be affirmed, with costs to the appellee, the administrator of the remote assignor, he being the party substantially prevailing; but so much of the decree as dismissed the bill as to the trustee is reversed and the cause remanded, to have the deed executed by the trustee delivered to the plaintiff.

An appeal granted upon the petition of Milton C. Atherton, to a decree of the circuit court of the county of Tucker, rendered at the March term thereof, in the year 1869, in a cause in chancery then in said court spending, in which said Atherton and Samuel Woods were plaintiffs, and Beauchamp G. Hull and others were defendants.

The decree complained of was pronounced by Hon. John A. Dille formerly judge of the circuit court of Tucker county.

Samuel Woods, for appellant.

C. Boggess, for appellees.

The following statement of the case is furnished by Johnson, Judge:

Milton C. Atherton and Samuel Woods, in the circuit court of Tucker county, filed their bill, which is in substance as follows: that on the 26th day of October 1858, one Beauchamp G. Hull and wife, executed a deed of trust to William Ewin, trustee, conveying some two-hundred and sixty-one acres of land, situated in said county of Tucker, to secure said Woods the payment of $1,688.61, with interest from the date of said deed, and also to secure the expenses of the trust, and commission of the sale; that the said debt had originally been due from said Hull to Henry V. Bowman, and that previous to the execution of the said deed, the said Bowman, had assigned and transferred the same for a valuable consideration to said Woods, who after the execution of the said deed, assigned and transferred the said debt for a valuable consideration, to the said Atherton, of which said Bowman had due notice, as will more at large be shown, by certain proceedings had in a chancery suit, now pending in the circuit court of said county, exhibited by said Bowman, against the plaintiff (in this suit) and others; that said debt named in said trust deed remaining wholly unpaid, the plaintiff directed a sale of the land named therein, and on the 18th day of March 1861, the same being a court day, the said trustee made public sale of the said land, at the court house of said county, and the said Atherton, became the purchaser at the price of $900.00, which sum after deducting said Ewin's lawful commission for making said sale, left the sum of $873.25 to be credited on said sum of $1,681.69, as of the 18th March 1861, leaving the sum of $1,051.98 still due and unpaid on said trust debt; that it might seem, at first sight that said land sold at an inadequate sum, and at a ruinous sacrifice, such however is not the fact, but the said sale was for the full value of the land, and one Herom Laugherty was employed on behalf of said Hull and Bowman to bid on the land, which he did, until it was struck off to said Atherton, at a higher price than they wished to bid for it; that by reference to the deed of Bowman to Hull, it will indeed appear that said Hull bought said land on the 9th day of May 1855 for $2,500.00, but that there was then a valuable mill on said land, which constituted its principal value, but which was burned down while the land was owned by said Hull; and that said Hull was a preacher of the Gospel, and wholly unused to farming, and bought the land on speculation, to enable him to sell an adjoining tract of land to advantage; and then he let the tract in question go to waste, impoverishment and decay, during the second year he owned it. The plaintiffs exhibit a letter of Hull, written on the 11th of April, but the year is not stated, in which he says the notes, (without describing them) were given for the balance of the purchase money on the real estate alluded to; that when he entered into that arrangement, he had no expectation of paying the money, only by the sale of the property which he hoped to have sold before it was necessary to force a sale of it under the trust; that he had another tract of land, adjoining that containing five hundred and fifteen acres; the two tracts containing about seven hundred and seventy-five acres, and made what he considered a very valuable property, and could be much more advantageously sold together than separately; he thought he could succeed in selling before fall; feared that if the land was sold under the trust, that it would not bring enough to pay off the notes, although he paid several years before $2,500.00 for it; he speaks of his losses, and begs for leniency. The bill proceeds: that Hull is wholly insolvent; that said sum of $1,051.98, with interest from the 18th March 1861 is due from him, for which the said Bowman, as assignor to said Woods is liable; that in view of that admitted liability, (see exhibits A, and No. 4,) said Bowman instituted said suit most unjustly, charging fraud upon said trustee and Atherton; that said Henry N. Bowman has since departed this life, leaving certain persons named in the bill his heirs-at-law, and his estate was committed to the sheriff of Barbour county for administration; and that said administrator and heirs-at-law, had abandoned, and refused to further prosecute the suit so instituted by said Bowman; that they also refused to pay said money, or any part thereof, and refuse to convey said land to Atherton, that the trustee, Ewin, has from said sale hitherto, refused to execute a deed for said land to Atherton, and being in sympathy with the so-called Confederate States, has left his place of business, home and property, and has gone within the Confederate lines, and is not a resident of this State, so that it is wholly out of the power of the plaintiff, to obtain a deed for said land, save by a resort to this court, that the said Ewin, and heirs and personal representatives of said Bowman, combine and confederate to delay, hinder and defraud the plaintiff in the premises. The prayer of the bill is, that the said Hull, Ewin trustee, and personal representatives of said Henry Bowman, deceased, be made defendants to the bill; that a commissioner in place of Ewin trustee, be directed to convey the said land, to said Atherton, and that a personal decree be rendered against the personal representatives of Bowman, in favor of said Atherton, for said sum of $--and interest as aforesaid, and for general relief. The record does not show when the bill was filed, but as the summons was issued on the 12th day of September 1864, it is probable, the bill was filed at October rules of the same year.

The deed of trust referred to in the bill, is filed as an exhibit, and is signed by Hull and wife, Samuel Woods and H V. Bowman. The record of the chancery suit referred to in the bill, is also filed therewith, and was instituted by said H V. Bowman, in his life time, against Ewin, Samuel Woods, Milton C. Atherton and B. G. Hull. The bill alleges, that on the 9th of May 1855, the plaintiff conveyed by deed of that date, two hundred and sixty-one acres of land in Tucker county, to B. G. Hull, for the consideration of $2,500.00; that Hull having failed to pay the purchase money, the plaintiff instituted a suit against him in the circuit court of Tucker county, to enforce the vendor's lien retained therein, and that such proceeding were had; that plaintiff obtained a decree for the sale of said land; that he afterwards assigned said...