Bilmyer v. Sherman et al

• Decision Date: 29 March 1884
• Citation: 23 W.Va. 656
• Court: West Virginia Supreme Court
• Parties: Bilmyer v. Sherman et al

23 W.Va. 656

Bilmyer

v.Sherman et al

Supreme Court of Appeals of West Virginia.

Submitted September 6, 1883

Decided March 29, 1884.

1. It is the duty of the plaintiff in a creditors' hill to make parties thereto all the lien-creditors of the debtor known to him and those, whose liens are disclosed by the judgment-lien docket or the records of the courts of any of the counties, in which any of the lands sought to be sold are situated, (p. 661.)

2. Creditors who file their claims before a commissioner in such suit, although not formal parties to the bill, become informal parties to the suit and are as effectually bound by the decrees entered therein, as if they had been made parties to the bill and served with process, (p. 662.)

3. If all the lien-creditors are made parties to such suit either formally or informally, this Court will not reverse a decree ordering' a sale of the lands of the debtor, merely because the record shows that some of the lien-creditors, who ought to have been, were not made formal parties to the bill, unless it appears that objection was made to the bill in the court below for the want of such formal parties, (p. 661.)

4. In such suit the formal plaintiff having obtained satisfaction of his debt, it is not error for the court to state that fact on the record and dismiss him from the suit and order the same to be thereafter prosecuted in the names and for the benefit of some or all of the unsatisfied creditors whose claims have been audited in the suit. (p. 662.)

5. Where there are liens by trust-deeds, the trustees in such deeds must be made formal parties, before any sale of the debtor's lands can be ordered; such trustees cannot be made informal parties by publication; and where a decree of sale is made in the absence of a trustee, this Court will reverse the decree, although the cestui que trust had his debt audited in the suit, (p. 664.)

6. A decree or order of reference to a commissioner in one creditors' suit operates a suspension of all other pending suits for the administration of the debtor's assets; and such decree may be made in the cause first ready for hearing, although it may not be the suit first instituted, (p. 664.)

The opinion of the Court contains a statement of the facts of the case.

D. B. Lucas'and Grove & Brown for appellant.

If7. H. Travers and G. M. Beltzhoover for appellee,

Snyder, Judge:

This is an appeal from two decrees ot the circuit court ot Jefferson county pronounced in a general creditors' suit brought by David Bilmyer in February, 1876, against Oliver Sherman to subject the real estate of the defendant to the payment of all the liens resting upon it. The bill was filed by the plaintiff "on behalf of himself and all other liencreditors of the defendant who may become parties and contribute to the payment of costs." It avers that the real estate of the defendant is encumbered by judgment and trustliens to an amount exceeding its value, but no one is named as a defendant except said Sherman, the lien-debtor.

At the same time a second suit was brought in the same court by Edward Tearney as administrator' of Adam Sherman, deceased, against said Oliver Sherman as sole heir, and Philip Barnhart and others as creditors, of the said Adam, to have a settlement of the administration accounts upon the estate of said Adam, ascertain the amounts and priorities of the debts due therefrom and to sell the real estate ot said decedent to pay the same. It appears from these suits that the defendant Oliver Sherman was the owner of four tracts of land situate near Shepherdstown in Jefferson county. First, the "Aspen Pool" or "Home" tract containing three hundred and seventeen and one halt acres; second, the "Black Farm" of about one hundred and ninety-eight acres; third, the "Muck" or "Andrews'" tract of about fifty-six acres, and fourth, the "Lecklider" tract, the whole estimated to be worth about thirty thousand dollars. The "Home tract" was inherited by the said Oliver from his father, the said Adam Sherman, and the other tracts he purchased.

These two causes were by separate? orders, made in March 1876, referred to Commissioner Moore, with directions to him, in the first, to ascertain and report the liens on the real estate of the defendant, Oliver Sherman, with their respective priorities, first giving legal notice of the time and place of executing the order; and with directions to the commissioner, in the second, to settle the accounts of the plaintiff, as administrator of Adam Sherman, deceased, ascertain the estate real and personal of which he died possessed, the amounts and priorities of his debts and requiring him before taking his account to give notice by publication in some newspaper published in the county for four successive weeks as prescribed by chapter 200 of the Acts of 1872-3.

The commissioner made a report pursuant to said orders, Which was excepted to and re-committed to him. Subsequently by orders made in the first suit only, the report of the commissioner was re-committed not less than six different times for the purpose of convening the lienors and having all the liens on the lands of the defendant, Oliver Sherman, audited and their priorities ascertained and reported; and each reference required the commissioner to give notice to the creditors by publication in some newspaper of the county for four consecutive weeks before executing the orders of reference. The commissioner after having given the required notice made and returned reports from time to time in response to said orders, some of which reports were confirmed in part before re-committal. From the last of these reports made March 14, 1878, it appeared that the liens on the defendant's lands aggregated the sum of thirty-four thousand four hundred and forty-five dollars and forty-eight cents, as of March 1, 1878, divided as to priorities into thirty-seven classes and due to over sixty different creditors. Some of these creditors filed answers setting up their claims and others on their own petitions were made formal parties to the cause.

By a decree pronounced April 24, 1878, upon both causes heard together, the said last mentioned report was confirmed and all the lands of the defendant, Oliver.Sherman, decreed to be sold by commissioners appointed for the purpose. The commissioners sold all of said lands, hut the sales of the "Black" and the "Andrews" tracts were set aside. The sales of the " Aspen Pool" and the " Lecklider" tracts were confirmed by decrees entered October 25, 1878, and April 11, 1879.

It appears that the said "Andrews" tract was purchased by Oliver Sherman from Helen A, Andrews, who conveyed the same to him by deed oi March 9, 1875, in consideration of two thousand seven hundred and sixty-eight dollars for the payment of which a lien is therein retained. By trustdeed dated March 4, 1875, five days before said conveyance to Sherman, the said Helen A. Andrews had conveyed said land to C. II. Knott, trustee, to secure to Samuel M, Knott the payment of a bond executed by tier to him for four hundred and forty-seven dollars and twenty-five cents, dated February 12, 1873. On November 21, 1879, the court by its decree directed the commissioner to ascertain and report the date at which the unpaid purchase-money due to said Helen A. Andrews, then Mrs. Muck, became due and whether said Knott trust-debt was still a subsisting lien on the said land and the amount so subsisting. This decree concludes as follows: "Audit appearing that the debt audited in favor of David Bilmyer, the plaintiff in this cause, has been paid and satisfied, it is ordered that he be dismissed from the cause and that the same be prosecuted for the use and at the costs of R. Domer, F. Mertons, Helen A. Muck and any other creditors of O. Sherman, who may audit their claims and participate in the proceeds of sale of lands in the i)ill and proceedings mentioned."

The commissioner reported that the balance still due and unpaid to said Helen A. Muck was two thousand five hundred and thirty-five dollars and eighty-five cents with interest thereon from March 9, 1875, and that the balance unpaid on the Knott trust-debt, as of March 1, 1880, was five hundred and twenty-nine dollars and thirty cents. The counsel for Sherman excepted to this report; first, "because the commissioner reported the Knott lien as a subsisting lien on the 'Andrews' tract of land; and second, because the commissioner did not ascertain when the purchase-money secured by vendor's lien to Mrs. Muck is due and draws no conclusion from the testimony before him."

On April 10, 1880, the court being of opinion from the evidence submitted, that the purchase-money for the "Andrews" tract of land was then due and bore interest from March 9, 1875, overruled the defendant's exception to the commissioner's report and decreed a sale of the said "Andrews" and the "Black" tracts of land. From this and the said decree of November 21, 1879, the defendant, Oliver Sherman, was allowed an appeal and supersedeas by this Court.

The appellant assigns the following grounds of error:

1st. That the bill does not make the judgment-creditors, or the deed-of-trust-creditors, parties thereto; that no subpoena in chancery has ever been served upon them, and that no decree entered in this cause can bind them, as they are not parties to the suit.

2d. That David Bilmyer, the only complainant in the bill, has received his debt in full and been dismissed from the cause, and that there is no other party to the suit in whose name it could proceed.

3d. That under the circumstances surronnding: the case it was error to appoint a special receiver of the rents and profits. 4th. That the court erred in decreeing that the purchasemoney due from Sherman to Mrs. Muck was due and payable at that time, as will appear from the evidence filed with said report.

5th. That the amount of said debt should have been credited with the amount of the Knott trust, which was paid by Sherman under an...