Boom v. Boom

• Decision Date: 17 December 1912
• Citation: 71 W.Va. 507
• Court: West Virginia Supreme Court
• Parties: Birch River Boom & Lumber Company v. Glendon Boom & Lumber Company.

71 W.Va. 507

Birch River Boom & Lumber Company

v. Glendon Boom &Lumber Company.

Supreme Court of Appeals of West Virginia.

Submitted January 30, 1912.

Decided December 17, 1912.

1. Appeal and Error Judgment Review Reversal.

Decrees ordering and confirming sales of property and adjudicating priorities and liens, so uncertain as to their effect upon the rights of parties, when read in connection with other decrees and orders in the cause, that the appellate court cannot see whether parties have been prejudiced by it, and apparently violative of the rights of some of them, are erroneous and will be reversed. (p. 511).

2. Sales Seller's Lien Failure to Record Reversal.

An unrecorded vendor's lien upon personal property is good as between the parties and as to all other persons save purchasers for value without notice and creditors of the vendee. (p. 511).

3. Chattel Mortgages Trust Deed Failure to RecordEffect.

The creditors protected by section 5 of chapter 74 of the Code against an unrecorded deed of trust or mortgage upon personal property are lien creditors having the right to charge the property directly, not holders of mere personal demands or claims against the vendee. (p. 511).

4. Evidence Best and Secondary Evidence Vendor's Lien Reservation.

Admission of secondary evidence of a reservation of a vendor's lien upon personal property, in a suit to enforce it, is justified by the inability of the plaintiff to produce the deed or writing itself by reason of its loss or its having been carried beyond the jurisdiction of the state. (p. 512).

5. Execution Fieri Facias Liens.

By virtue of section 2 of chapter 141 of the Code a fieri facias gives a lien, from the date of the delivery thereof to the officer, upon all the property owned by the debtor at the date of such delivery, whether leviable or not, and upon all such property as he may acquire on or before the return day thereof, and such lien continues after the return day thereof except in certain cases specified in said section, though the execution is not docketed, as it may be under the provision of said section, and has been returned. (p. 512).

Appeal from Circuit Court, Braxton County.

Bill by the Birch River Boom & Lumber Company against the Glendon Boom & Lumber Company and others. From a decree in favor of plaintiff, E. H. Pierson and others appeal.

Reversed and Remanded.

Hall Bros. for appellants.

Jake Fisher, for appellee.

poffenbarger, JUdge:

One branch of this cause has been disposed of by a decision rendered at the present term of this Court. Some of the facts and proceedings and the general character of the suit may be gathered from the opinion then filed.

The Birch River Boom & Lumber Company filed its bill to restrain D. C. Gallaher, special receiver of the Big Tree Lumber Company, from selling certain property of the Glendon Boom & Lumber Company, under an execution which had been levied thereon, and to obtain the appointment of a special receiver to take charge of the mills and other property of the Glendon company and also the property of Austin, Neib and Yarlett, and operate the plant and convert the products into money. Said Birch River company asserted, as the basis of its right an alleged vendor's lien on the property and also set up the insolvency of the Glendon company, and obtained both the injunction and the appointment of a receiver.

Later the Bank of Gassaway, J. N. Elder, and Burk Elder recovered judgments against the Glendon company on which executions issued and were levied on some of its property, and that property was sold in parcels to Frame, Marple, Elder, McLaughlin, Given and Mollohan.

James F. Pierson and E. H. Pierson, suing in assumpsit, attached certain property of the Glendon company, and caused the same to be sold, and purchased it themselves at the sale. In view of these proceedings, the Birch River company filed an amended and supplemental bill for injunctions against further proceedings in said actions at law, for an accounting from Marple and Frame and Sergeant, constable, respecting the property sold under the executions. This injunction was dissolved as to all of the property not included in the order on the original bill, appointing the receiver, and as to all property not purchased from the Birch River company and in so far as it inhibited the prosecution of the actions at law. Later the amended and supplemental bill was dismissed. These are the decrees passed upon in the former decision of this Court to which reference has been made.

A subsequent decree, entered September 28, 1909, authorized the special receiver to sell to the plaintiff, the Birch River Boom & Lumber Company, for the sum of $18,000.00, of which 40% was to be paid in hand and the residue in three equal annual installments with interest, "all the property and franchises. both real, personal and mixed, of whatever description, including the leasehold estates, the mills, booms, dams, splash dams, lumber, timber and logs, franchises and all property whatsoever of the Glendon Boom & Lumber Company," which sale seems to have been made and confirmed on said date. A decree entered November 30, 1909, referred the cause to a commissioner to ascertain the liens and debts of the Glendon company, their amounts and priorities, to whom owing, the real estate of the defendant, with the liens thereon, stated in the order of their respective priorities, and the personal and other estate of the defendant, and to state the account of the special receiver, with the amount of property administered and the amount remaining unadministered, if any, and his disbursements in detail. The commissioner, in his report, gave the Birch River company the first lien, D. C. Gallaher, special receiver, the second, one Cowl the third and all the other creditors were given the fourth place to share ratably. There were three exceptions to this report, challenging the soundness of the preferences given. The exception to the allowance of a preference to Cowl was sustained and the others overruled. Thereupon the court entered a decree ascertaining the amount due the Birch River company to be $18,355.31, and the debt due Gallaher, special receiver, to be $898.39, which sums it adjudged to be liens, in the order named, "on all the property and assets real and personal of the said defendant Glendon Boom & Lumber Company, which came into the hands of the receiver", or to which such receiver was entitled. The same decree recom- mitted the cause to a commissioner to ascertain and report what property and money had come into the hands of the receiver or should have done so and the disposition thereof made by the receiver. This appeal is from the decree of sale and the later decree determining questions of priority.

Whether the plaintiff has a vendor's lien upon the property sold mediately to the Glendon company, through Austin, Neib and Yarlett, is a basic question, as to most of the conflicting contentions. Subsidiary ones involve interpretation of the decrees and the relation of the appellants, E, H. Pierson, J. N. Elder, J. W. Given, J. E. Given and B. S. Given, to the cause and the property.

The receiver was authorized by the order appointing him to take charge of the property on which the vendor's lien was claimed only. By the order made on the amended and supplemental bill, April 26, 1909, he was ordered to take possession of the property of the Glendon Boom & Lumber Company and the logs in the river sold by the constable, and also the lumber sold by constable and. not removed." This was the property purchased at execution sales by Frame, Marple, Elder, McLaughlin, Given and Mollohan, and, under the attachment sale, by James F. and E. H. Pierson. The injunction awarded against the purchasers, the constables and the execution and attachment creditors was dissolved, as to all the property except that first put into the possession of the receiver, and the amended and supplemental bill, on which the subsequent order extending the powers of the received stood, as well as the original bill, was dismissed, as to James F. Pierson, E. H. Pierson, J. N. Elder, Leslie Frame, R. A. Given, and James R. Sergeant, constable; but there was no express discharge of the receiver as to the property placed in his custody by the order made on the amended and supplemental bill, the property sold under execution and the attachment. Of course these decrees terminated his authority, if they became effective. The dissolution order was entered June 11, 1909, and suspended for 60 days for the purpose of an application for an appeal, but the appeal was not allowed until ...