Baker v. Rinehard

• Decision Date: 10 September 1877
• Citation: 11 W.Va. 238
• Court: West Virginia Supreme Court
• Parties: Baker et al v. Rinehard, Mayer & Co. et al.

11 W.Va. 238

Baker et al

v.Rinehard, Mayer & Co. et al.

Supreme Court of Appeals of West Virginia.

Decided September 10, 1877.

1. A court of equity ought not to grant an injunction, to stay the

sale of personal property, levied on by a sheriff by virtue of an execution, which property is owned by a third party, when the property is not from its nature of peculiar value to the owner, and when its sale will not obviously greatly injure the owner by the consequential damages it would produce. (See Walker v. Bunt, 2 W. Va. 491.

2. Quaere Would the fact that the sale would obviously greatly

injure the owner by the consequential damages it would produce, alone justify the granting of an injunction to such sale?

3. If the property is owned by several different parties, not joint-

ly but severally, each owning a separate part of the property by titles derived from different parties, the owners in such case can not unite in a bill to enjoin the sale. Such a bill should be dismissed on demurrer as multifarious.

Appeal from and supersedeas to a decree of the circuit court of Ritchie county, rendered on the 27th day of April 1877, in a cause in chancery, in said court then pending, wherein Tillman H. Baker and others, were plaintiffs, and Rinehard, Mayer & Co., were defendants, granted upon the petition of said plaintiffs.

Hon. James M. Jackson, Judge of the fifth judicial circuit rendered the decree complained of.

The following statement of the case was prepared by Green, President, who delivered the opinion of the Court:

Tillman H. Baker, W. S. Baker and A. S. Baker, in January 1877, filed their'bill in the circuit court of Ritchie county, alleging that the defendants Rinehard, Mayer & Co. had issued an execution on a judgment against T. D. Baker and W. B. Baker for $313.16 with interest from October 16, 1876 and $9.70 costs, which was levied on nine head of yearlings, four head of calves, one horse and two hogs, the property of one of the plaintiffs, Tillman H. Baker; and on five head of yearlings, one mare and colt, eleven head of sheep and one calf, the property of another of the plaintiffs, W. S. Baker; and one mare and one cow, the property of the female plaintiff A. S. Baker; that the sheriff, being notified that it was their property, required of the plaintiffs in the execution an indemnifying bond, which was given; and thereupon the sheriff advertised said property for sale.

The bill further alleges, that the return day of the exetion had passed, yet it had not been returned to the office, whence the execution issued, and no venditioni exponas had issued. The plaintiffs assert in general language, that they had no complete and adequate remedy at law; and then in direct contradiction with a charge previously made in the bill, charge that no indemnifying bond had been given by the plaintiff's to the sheriff; and they say in general terms,.that if such property is permitted to be sold, they will sustain irreparable injury; and the bill prays, that the plaintiffs in said exetion and the sheriff, who levied it, may be made defendants, and may be enjoined from selling said property; and for general relief. Depositions were taken by the complainants to prove the ownership of the property by them severally, as alleged in the bill; and the defendants demurred to the bill, and filed answers, which were replied to generally. On the 27th day of April 1877 the Court by its decree sustained the demurrer, dissolved the injunction and dismissed the bill, and decreed that the defendants Rinehard, Mayer & Co. recover of the complainants their costs.

R. 8, Blair, for appellants:

The following authorities are relied on, to show the right to enjoin the sale of personal property under an execution, where the party or parties claim, as bona fide owners, and not as incumbrancers merely: Walker v. Hunt, 2 W. Va. 491; McFarland et al v. Dilley et al 5 W. Va. 136; Lewis v. Spencer, 7 W. Va. 691; Wilson & Trent v. Butler et al, 3 Munf. 564, 565; 2d vol. Tucker's Commentaries 469 (top page); Watson v. Sutherland, 5 Wall. 74; Boyer et al v. Oreigh et al, 3 Rand. 31; Scott et ux. v. Holliday, 5 Munf. 103; Sampson v. Brice, ib. Munf. 175; Crawford v. Thurmond, et al, 3 Leigh 85.

Scott & Cole, for appellees:

1. A court of equity will not interfere by injunction, on application of the professed owner, to inhibit the sale of personal property taken on execution unless it be shown that the property is of peculiar value, or that for some reason the party cannot get adequate compensation for the wrong, complained of, in damages in an action at law: 2 Rob. (old) Pr. 224, 225; Randolph v. Randolph, 3 Munf. 99; Allen v. Freeland, 3 Rand. 170; Wilson & French v. Butler, 3 Munf. 559; Bowyer, &c. v, Creigh, 3 Rand. 25; Randolph v. Randolph, 6 Rand. 194; Walker v. Hunt, 2 W. Va. 491; Watson v. Sutherland, 5 Wall. 74; DuPrev. Williams, 5 Jones Eq. 96; Lewis v. Levy, 16 Md. 85; Freeland v. Reynolds, 16 Md. 415; Hilliard on Injunctions, 232, 233, 234, 235.

2. While the granting of special injunctions in many cases is indispensable for the purposes of social justice, it is attended with no small danger, both from its summary nature and its liability to abuse, and ought to be guarded with extreme caution:2 story's Eq. Jur., §959 (6.) and note; Fenly v. Waner, 5 How. (U. S.) 141.

3. Several complainants cannot assert separate titles to different pieces, or articles of property, owned by them severally, by the same bill. Such a bill is multifarious:

2 Rob. (old) Pr. 278, 279, and authorities there cited; Story's Eq, PL §§271, 271 b to 280.

Green, President, delivered the opinion of the Court:

The question arising in this cause is, whether on such allegations, as are made in the bill, an injunction can be properly sought by the owners of personal property to prevent its sale by a sheriff, who has levied upon it an execution, issued against a third party having no interest in the property. In Virginia the decisions seem to establish the principle:" That a court of equity should not interfere, to prevent a creditor from seizing and selling under his execution any property, which he may think liable to it t unless the property he of such a character that the owner cannot be fully compensated by the verdict of a jury giving him its fair market value; and that this can only be, where the property is of such a nature that it may fairly be supposed to have & peculiar and additional value in the estimation of the owner, the pretium affect ionis." 2 Rob. Pr. (old) 225; see Randolph v. Randolph &c, 3 Munf. 99; Wilson & French v. Budler &c, 3 Munf. 559; Scott etux. v. Halliday, 5 Munf. 103; Sampson v. Bryce, 5 Munf. 175; Bowyer &c. v. Creigh &c, 3 Rand. 25; Allen v. Freeland, 3 Rand. 175; Randolph v. Randolph, 6 Rand. 198; Sims v. Harrison, 4 Leigh 346; Kelly v. Scott, 5 Gratt. 479; Summers &c. v. Beam 13 Gratt. 417. In some of these cases t e court lendered no opinion; in others the language used was loos or more general, from which, if the case, in which the language is used, is not particularly examined, it might be inferred, that a court of equity in such cases would interpose when, from the nature of the case, the remedy at law was incomplete, without reference to the peculiar nature of the property. But if the cases themselves are examined, it will appear that the law as laid down by Robinson in his Practice, as quoted above, is fairly inferrable from all the Virginia decisions, and is clearly expressed and laid down in some of them. Bearing in mind that the Virginia court of appeals held, that slaves had in the estimation of the owners a peculiar value, unless the contrary appeared, (Randolph v. Randolph, 6 Rand. 194), it will be obvious that the court of appeals of Virginia, in none of the cases above cited, has ever gone further than to hold, that a court of equity would interfere to prevent a creditor from seizing and selling under execution the property of a third party, if such property was of a nature, that it could fairly be supposed to have a peculiar value in the estimation of the owner, and not otherwise. Judge Tucker, in his Commentaries vol. 2, p. 473, admits that the Virginia decisions are as above stated, but says: "To the decisions above cited we are compelled to bow in submission, and doubtless the principle of them is in general correct; yet if injunctions are granted on the ground of irremediable mischief to the party, the justice of refusing it is not perceived in many cases, which would be excluded by these decisions. Thus, if on an execution against it, the only horse of B., a poor man, is taken from the plough, it is a mockery of justice to say to him, 1 you may sue for damages/ when a lawsuit may be beyond his means, and even these means are diminished by the wrong; and this, although he has possession, and must give ample security for the property if he fails to prove his title to it." Judge Tucker, while admitting that the Virginia decisions did not justify such conclusion, thought that, as a jury could not take into consideration the collateral or consequential damages resulting to the owner from the taking of such property, that therefore, a court of equity ought to interfere to prevent such collateral or consequential damages arising; and his view received a certain amount of countenance from the decision of the supreme court of the United States in the case of Watson v. Sutherland, 5 Wall. 74. In that case, an injunction was sustained; Sutherland alleging in his bill, that the defendants in the chancery case had levied a fieri facias, issued against a third party, on his stock of goods; and he asked an injunction to the sale to prevent irreparable injury to himself; and, as showing that such irreparable injury would result, he states in his bill u that he was the bona fide owner of the stock of goods, which were valuable, and purchased for the business of the current season, and not all paid for; that his only means of payment were...