Bensimer v. Fell

• Decision Date: 07 March 1891
• Citation: 12 S.E. 1078,35 W.Va. 16
• Parties: Bensimer et al. v. Fell et al.
• Court: West Virginia Supreme Court

12 S.E. 1078

35 W.Va. 16

Bensimer et al.

v.Fell et al.

Supreme Coitrt of Appeals of West Virginia.

March 7, 1891.

Liability of Vendee — Land Subject to Judgment—Res Adjudicata — Proof of Liens—Equitable Mortgage — Deed—Acknowledgment by Married Woman.

1. A purchaser of land which is subject to the lien of a judgment takes it subject only to the amount called for by the judgment, and it is not liable to the judgment increased by usury under a subsequent agreement between the creditor and judgment debtor.

2. In a creditor's suit afterwards brought by another creditor to convene and enforce liens against lands of such judgment debtor, but not against the land so sold, there is a personal decree against the debtor based on such judgment, for an amount beyond the legal call of the judgment by reason of such usury, and the lands of such debtor are decreed to sale to pay that and other liens ascertained by a commissioner's report of liens under an order to convene them, and after publication of notice to creditors, and such purchaser's administrators and heirs are not formal parties, but prove a debt before the commissioner; and afterwards an amended bill isfiled to subject the land which had been sold to such purchaser to said debt. Meld, that the administrators and heirs of such purchaser are not precluded by such convention of creditors and such decree from disputing the amount of the debt as fixed by such decree, and the land so sold is to be held liable only for the amount legally called for by the judgment.

8. No subsequent decree or judgment for an amount beyond the legal call of the first judgment, in a suit to which such purchaser is not a formal party, or wherein the true amount due by reason of the judgment was not in fact litigated, can estop such purchaser from satisfying the demand by payment of a sum lawfully called for by the judgment as it was when he purchased.

4. A privy in estate is not bound by a judgment or decree recovered against him from whom he derived his estate, after he derived it, merely because of such privity. '

5. A judgment for a debt in favor of A. against B. is conclusive, not only between the parties, but even as to strangers, to establish the existence and amount of the liability, and strangers can only impeach it for fraud or collusion.

6. A decree under section 7, c. 139, Code 1887, upon a report of a commissioner after notice to lien holders, adjudging liens on the lands of a debtor, is conclusive as between the various lienors proving liens, though not formal parties, as to the existence and amounts of their debts for the purposes of that cause as to the lands of the debtor; and if there be a personal decree against the debtor for such liens, not merely because of the statute, but on general principles of law, the decree would be conclusive generally as between, not only the creditor and debtor, but also conclusive as between the various lienors, as to the existence ana amounts of their respective debts.-

7. Any lienor holding a debt against the judgment debtor constituting a lien on his land, not proving his lien in such proceeding, would be thereby barred from sharing in the proceeds of the sale of land under the decree, except in the surplus remaining after payment of the liens de-treed, though not a formal party. But a debt secured by deed of trust would not be so barred, unless the trustee and cestui que trust be formal parties. They must still in such suit be made formal parties, under section 7, c. 139, as found in the edition of the Code issued in 1887, under chapter 126, Acts 1882.

8. While the debt of a party who ought to, but does not, prove his lien in such proceeding, is barred, as above stated, from participation in the proceeds of the sale, as a lien, yet the debt is not, as a personal debt against the debtor, barred merely from such failure.

9. Nor is a lien on the land of the judgment debtor, created not by him, but by a former owner of the land, barred as to such land by failure of the owner to prove his lien therein, but, to bar him for failure to do so, he must be made a formal party. This is the case even though the holder of such lien proved in the case another lien on the land created by the Judgment debtor himself.

10. A deed conveys land to a trustee to hold for the separate use of a married woman, "expressly reserving, however, to the said E. A. C. [the woman] the right to sell and unite with her husband and her said trustee in conveying all or any part of said lands, whenever she may elect to "do so. " She and her husband make a deed of trust on the land, acknowledged by them properly, to which the trustee is not a party; but, by an underwriting under his hand and seal of same date with the trust, he agrees "that the above trust-deed may be executed, and, in the event that a sale of the above-named lands shall have to be made, I will unite in the deed conveying, provided the said sale is made according to the terms of this trust-deed. " The instrument is recorded. Held, that though informal for the want of the trustee as a formal party, and not passing legal title, yet it creates a lien on the land as an equitable mortgage.

11. The certificate of the privy examination and acknowledgment of such deed of trust has the caption, "State of West Virginia, Greenbrier county, to-wit, " and certifies the officer to be "a justice of the peace in and for the county aforesaid, " but does not show that the woman appeared before him in the county. This will not avoid the certificate.

12. Such certificate certifies that the woman "came before me, and having been examined by me privily and apart from her husband, and having had the deed aforesaid fully explained to her, she, the said E. A. C, acknowledged the same to be her act and deed, and declared that she had willingly signed the same, and that she wished not to retract it." The word "signed" is equivalent here to "executed, " and its use in place of the word "executed" does not vitiate the certificate.

(Syllabus by the Court.)

Appeal and supersedeas from circuit court, Greenbrier county.

J. W. Harris, for appellants.

A. F. Matthews, for appellees.

Brannon, J. In 1890, W. G. Bensimer filed his bill in the circuit court of Greenbrier county against John P. Fell, to assert the lieu of a judgment in favor of Bensimer against Fell, to convene the lien-holders, and sell Fell's lands for the payment of the liens. The suit was in behalf of Bensimer and all other holders of liens, and, a reference having been made to a commissioner in chancery, he reported various liens against Fell's lands, and they were sold. One of the liens reported was based on a judgment of date 10th January, 1878, in favor of J. Whitehill against Fell, for $843, owned by Alexander-F. Matthews, and reported in his favor. Matthews claimed that he had entered into an agreement with Fell by which Fell agreed to piy an additional sum in consideration of the forbearance of Matthews to enforce said debt, and that according to that agreement this debt would amount to $2,246.65 on November 10, 1886; but the commissioner stated that, though there was no plea of usury by Fell, he thought he must be governed by the judgment, and calculate interest at the lawful rate, and so he reported the debt as of that date at $1,294.14. Matthews excepted to the report for that cause, and the court sustained his exception, and decreed the debt against Fell at $2,246.65. The lands sold did not pay off all the debts decreed, and the Matthews debt was in large part unpaid, and an amended bill was then filed to bring into the cause and sell, for such of the unpaid debts as were liens thereon, lands which had been sold by Fell, namely, an undivided half of a tract of 111 acres conveyed to the Crookshanks by Fell, and an undivided half of a tract of 700 acres called the "Sinking Creek Tract, " conveyed by Fell to A. S. Skaggs. Skaggs being dead, his heirs were made formal parties by this amended bill. The cause was again referred to a commissioner to report the debts of Fell, constituting liens on any lands formerly owned and aliened by Fell, and all lands formerly owned by him on which said debts were liens. The commissioner under this second reference reported the said Matthews debt as a lien on the land conveyed by Fell to Skaggs, comput-ing it on the basis of the amount of the judgment of $843, computing interest on it at 6 per cent, from the date from which it ran under the letter of the judgment, crediting $266.40, as realized on it from the land sold under the first decree. He made a special statement of this debt, stating its principal as $2,246.65, as fixed by the decree which had been entered in the cause. Matthews excepted to it. His exception claims that the commissioner erred as to interest, and that he should have adopted as the principal of said debt the sum decreed by the above-mentioned decree, $2,246.65, and given interest from its date, instead of adopting the amount of the original judgment for a principal. The court adopted the theory of this exception, and carried it into decree by subjecting the land conveyed by Fell to Skaggs to the payment of $2,091.09, the sum due Matthews on that basis. The administrators of Skaggs appeal from this decree.

The appellants say that the amount decreed for the Matthews debt is too large. On the date of the conveyance from the judgment debtor Fell to A. S. Skaggs there had been rendered and docketed the judgment on which this Matthews debt is based, and of the amount of that judgment, with lawful interest as called for by it, Skaggs had notice; and the mere agreement made between Fell and Matthews, by which Fell agreed that, in consideration of forbearance, there was due on the judgment on November 20, 1886, $2,246.65, a sum largely in excess of the amount called for by the judgment, whatever might be its effect as between Matthews and Fell, could not operate as against the purchaser, Skaggs, to increase the debt over...