Bank v. Woodford. *(Holt
| Decision Date | 12 December 1890 |
| Citation | 34 W.Va. 480 |
| Parties | Farmers' Bank v. Woodford.*(Holt, Judge, absent.) |
| Court | West Virginia Supreme Court |
In a suit in equity to subject the land of a judgment-debtor to judgments against him, which are numerous and in favor of different persons, the fact that in one of the debts he is a surety with other solvent sureties of an insolvent principal does not require that lands of the solvent co-sureties be brought into the case and subjected to pay a portion of that debt, though those co-sureties are parties, by reason of the right to contribution, nor require a decree of contribution therein.
Rights of co-defendants can be settled as between them only when the ease as between them grows out of the pleadings and proofs between plaintiff and defendant.
Where this Court has a case before it properly on other grounds, it will correct any error in the court below as to costs, though it would not for that alone reverse.
Where a deed of trust secures several debts to the same persons with different sureties therein, such debts stand equal as liens, and are to be paid out of the property conveyed ratably, if the original creditor yet owns them, and the rights of assignees are not involved, unless the deed otherwise provides.
J. Bassell and Dayton $ Dayton for appellants, cited 31 W. Va. 70; 10 W. Va. 206, 226, 227; 25 W. Va. 242.
S. Woods for appellees, cited 31 W. Va. 70.
The record in these cases discloses that on the 27th day of March, 1886, the defendant, James M. Woodford, was a merchant in the town of Phillippi, and largely indebted; that numerous judgments had been rendered against him, among others one in favor of the Farmers' Bank of Phillippi, on the 31st day of January, 1885, for one thousand four hundred and ninety six dollars and forty eight cents; another in favor of said bank against J. W. Talbott, John F. Woodford, J. E. Ileatherly, Henry A. Gall, J. W. Robinson, A. T. Daniels, and said James M. Woodford, on the 1st day of February, 1886, for one thousand seven hundred and eighty one dollars and eighty cents; that on the 15th day of February, 1886, the said J. M. Woodford had conveyed his real estate to J. Hop. Woods, in trust, to secure two debts, one for one thousand five hundred dollars, the other for one thousand dollars, due to the National Bank of Kingwood, appellant Harvey being a surety on the one thousand five hundred dollar note, but appellant Johnson was not, while both were sureties on the one thousand dollar note; that on the 27th day of March, 1886, said judgment rendered in favor of said bank for one thousand four hundred and ninety six dollars and forty eight cents was owned by the firm of G. E. Grant & Bro., having been assigned by the said bank to them, but was at a later date reassigned to said bank; that execution on said day was issued upon said judgment, and was received by the sheriff'of said county at one o'clock a. m. of that day; that on said same 27th day of March, 1886, a judgment was rendered in favor of Laughlin Bros. & Co. against said Woodford, for one hundred and twenty dollars and nineteen cents upon which execution issued and went into an officer's hands at half past one o'clock p. m. of that day; that at six o'clock p. m. of the same day the said James M. Woodford confessed another judgment in favor of said bank for one thousand four hundred and eighty five dollars, upon which execution was at once issued and placed in the hands of an officer; that after this hour, between eight and ten o'clock at night, on the same day, the said Woodford, and said bank, acting through G. W. Gall, Jr., its cashier, and C. F. Teter, its attorney, as trustees, entered into a contract in writing, whereby said Woodford sold, assigned, transferred, and delivered unto said trustees his stock of store goods, notes, accounts, and books of account pertaining to said store, also six head of steers, at fifty dollars per head, and ten head of horses for one hundred and fifty dollars, in consideration of which said bank agreed to assume and pay oft and discharge all execution liens at that time outstanding in the hands of the sheriff or any constable of said county which should be paid in full; next, said bank should pay itself all judgments and debts and liabilities due from said Woodford to said bank, the balance, after payment of all said debts, to be paid to said Woodford's creditors according to his order, and all loss on notes, accounts, and books of account to be sustained by Woodford unless the loss be by negligence of said bank; that subsequently, to wit, on Monday morning following the 29th day of March, 1886, said executions upon said bank judgments for one thousand four hundred and ninety six dollars and forty eight cents and one thousand four hundred and eighty five dollars were levied upon said store, goods, and stock, and said Laughlin Bros. & Co.'s execution was levied on the day following. Soon thereafter said bank filed its bill in chancery against said Woodford and numerous others, principally creditors of his, wherein it sets out all of its said judgments, and the judgments of said other creditors, making no reference to said contract between said Woodford and it, but alleging its judgments as unpaid, and praying that this real estate might be ascertained, the liens thereon fixed, and the same sold in payment thereof.
After the institution of this suit by said bank, Greer & Laing instituted the second suit in chancery referred to in these proceedings, and filed their bill against said Woodford and numerous others, wherein they set out the recovery of a judgment by them against him, also a large number of other judgments, and fully set forth said contract between said Woodford and said bank, and charging all of said judgments in its favor against said Woodford thereby paid and discharged, prayed that it might be so declared, said bank's suit be dismissed, and the real estate, with the liens thereon of said Woodford, be ascertained and sold, under decree in their said suit.
At the July term, 1886, before the said suit of Greer & Laing had been instituted, an order of reference had been made in the first suit, that of the bank, directing Woodford's real estate to be ascertained with the liens thereon. Some time afterwards, the said Farmers' Bank sued out an execution upon its judgment for one thousand seven hundred and eighty one dollars and eighty cents against J. W. Talbott, John F. Woodford, J. E. Ileatherly, H. A. Gall, J. W. Bobinson, A. T. Daniels, and said James M. Woodford, and on the 11th day of January, 1887, James E. Heatherly presented his bill to the judge of said court, and procured an injunction restraining the said bank from collecting said judgment until further ordered. Said injunction cause was regularly matured, and is the third one referred to in these proceedings. In said bill said Heatherly sets out said contract between said bank and Woodford, and insists that by its terms said judgment was fully paid and discharged by Woodford.
In an answer, said Woodford admits, substantially, the allegations of said bill, and insists upon the same construction of said contract; while said bank by its answer denies the said construction claimed by the bill of said contract to be the true one, and sets out in detail the amount realized and paid by it thereunder. At the July term, 1887, the said J. M. Woodford filed his answer to the bank's bill, and in the Greer & Laing case a decree was entered construing said contract adversely to the pretensions of said bill, and referring said cause to the commissioner to be considered in connection with said bank's bill, while in said third cause a decree was entered construing said contract, dissolving said injunction, and dismissing said bill. To this last decree in said third cause, an appeal was taken to the Supreme Court of Appeals by Heatherly, and said decree was reversed, 31 W. Va 70 (5 S. E. Rep. 754) and the injunction reinstated, and by order entered therein at the July term, 1888, the said cause was referred to the same commissioner, to whom the other two had been referred.
At the October term, 1888, appellants Johnson and Harvey filed their joint answers to the bill of Greer & Laing, in which they admit their suretyship for Woodford upon said trust debts due the Kingwood Bank, and allege the fact that execution upon said bank's judgment for one thousand four hundred and ninety six dollars and forty eight cents, which is a lien prior to said trust owned at the time by G. E. Grant & Bro., had issued on said 27th day of March, 1886, and at eleven o'clock a. m. was placed in the sheriff's hands before said contract was entered into, and therefore should not be held or treated as a lien upon the real estate of said Woodford to the exclusion of other creditors whose liens were subsequent to said judgment, and especially of said deed of trust in favor of said National Bank of Kingwood; and further alleging that said Woodford was only one of four solvent sureties upon said bank's judgment for one thousand seven hundred and eighty one dollars and eighty cents against J. W. Talbott and others; and that his real estate should be exonerated from three fourths of said judgment, or, if the whole of the same should be so charged, that the other and junior creditors should be subrogated to the right of said Woodford to demand contribution from his co-sureties in said judgment. It is to be noted that the Supreme Court, by their decision in said third cause, had affirmed the court's construction of said contract, but reversed the cause for other reasons.
Commissioner Moral! having filed his reports in said causes, the three were heard together, and on the 19th day of July, 1889, the decree complained of was entered, whereby the Court confirms the commissioner's...
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