Bowlby v. Witt1

• Decision Date: 09 December 1899
• Citation: 47 W.Va. 323,34 S.E. 919
• Parties: BOWLBY. v. DE WITT.1
• Court: West Virginia Supreme Court

34 S.E. 919

47 W.Va. 323

BOWLBY.

v.DE WITT.¹

Supreme Court of Appeals of West Virginia.

Dec. 9, 1899.

ATTACHMENT—LIEN—RIGHTS OF PURCHASER —APPEAL—REVIEW.

1. An attachment is a lien on personal estate from levy, though no bond be given to authorize the officer to take possession, and one purchasing of the debtor with notice of the levy takes subject to it.

2. Where one party only appeals, and the rights of him and another stand on distinct and separate grounds, and are not equally affected by the decree or judgment, that appeal will not bring up for adjudication the rights of the other; hut when their rights are not only involved in the same question, but equally affected by the decree or judgment, the appeal of one will call for an adjudication of the rights of the other not appealing. But in the former case, if the party not appealing appears in the appellate court and assigns error, he unites in the appeal, and his case will be considered.

3. The title of one who purchases of an attachment debtor property levied under it with intent to defeat such levy is void as to it.

4. Lis pendens and pendente lite purchasers referred to.

(Syllabus by the Court.)

Appeal from circuit court, Ritchie county; Romeo H. Freer, Judge.

Bill by C. H. Bowlby against Ira De Witt and others. Decree for plaintiff, and De Witt alone appeals. Affirmed.

R. S. Blair, Jr., for appellant.

Robinson & Pierpoint, for appellee.

BRANNON, J. Bowlby brought a suit in equity in the circuit court of Ritchie county against De Witt to recover a debt arising from Judgments against De Witt in Pennsylvania, and sued out an attachment against the estate of De Witt on the ground of his nonresidence and fraud, which was levied on the eighth interest of De Witt in certain oil leases and personal property, and certain other personal property in which he owned the entirety. The property levied on was conveyed by Rowland to De Witt by deed dated June 8, 1898, and was levied on July 5, 1898, and reconveyed by De Witt to Rowland August 3, 1898. Rowland filed his petition setting up his claim to the property as exempt from the attachment. The case ended In a decree for Bowlby's debt against De Witt, —he having answered, —and directing the sale of the property levied upon, and De Witt alone appealed.

It is assigned as error that equity has no jurisdiction of the case, as there is adequate remedy at law. I take it that it is unnecessary to do more than say that equity has jurisdiction of a suit upon a purely legal demand against a nonresident, with an attachment levied on property. Code, c. 106, § 1; McKinsey v. Squires, 32 W. Va. 41, 9 S. E. 55.

It is assigned as error that the Sunlight Oil, Gas & Refining Company is not a party. Why should it be? The bill did state, as showing fraudulent transfers by De Witt to defeat the plaintiff's recovery of his debt, as one of his acts, that De Witt had transferred some property to that company, but did not charge fraud on the company, nor ask, nor did the plaintiff get, any decree against that property. That property was not levied upon under the attachment, nor proceeded against in the bill, nor touched by the decree. It was pretended by Rowland that he transferred some property to De Witt, as agent for that company, for advances of money on work Rowland was to do for it; but, if this was the truth, it was not so stated in the deed, and Rowland swears positively that the company had been repaid and its right ended, and De Witt distinctly swears the same; and he conveyed back to Rowland, and thus said company had not a shadow of interest. Its rights would be void for want of record, if it had any. Poling v. Flanagan, 41 W. Va. 191, 23 S. E. 685.

It is assigned as error that the claim to the property set up by Rowland was disallowed. Rowland did not unite in the appeal, but it is argued that the appeal of De Witt brings the whole case up. We are referred to Walker's Ex'r v. Page, 21 Grat. 636, to show that where parties appealing stand on the same ground as those not appealing, and their rights are involved in the same question, and equally affected by the same decree or judgment, the court of appeals will settle the rights of all. But the rights of De Witt and Rowland are not equally and likewise affected. The decree is personal against De Witt, —not against Rowland at all. De Witt disclaims title in the property sold. Rowland alone claims it It is Rowland's property that is held liable. His title only is affected, and, if dissatisfied, he should defend it by appeal. If the decree were reversed as to Rowland, De Witt would not get the property or profit by it The case cited shows that where the rights of two parties are separate, and not equally affected by the decree, the appeal of one will not bring up the rights of the other for adjudication. So does Shoe Co. v. Haught, 41 W. Va. 275, 28 S. E. 553. If Rowland were appealing, he could complain that the debt was wrongly decreed against De Witt, because interested in that question, as it established a debt affecting his property; but De Witt loses nothing in the property, because he expressly disclaims interest in it. Tate v. Liggat, 2 Leigh, 84, was a suit to cancel a fraudulent deed from A. to B., and B. appealed. Though the decree as to B. was reversed, yet the decree against A. for the debt could not be on B.'s appeal. This shows the separate interests in our case. As the decree is good as to De Witt, we could not reverse that clause of it denying validity of Rowland's claim, —he not appealing, —merely on De Witt's request. But, Rowland having appeared in this court and assigned error, I think that we must consider his case, as if he had appealed, because he thus unites in the appeal, and because an affirmance would bind him, as a finality, and therefore he ought tobe heard. Blowpipe Co. v. Spencer, 46 W. Va, —, 33 S. E. 342. Rowland purchased of De Witt some time after the levy of the attachment Code, c. 106, § 9, gives a lien from levy. Anybody purchasing of the debtor after levy is by common law a pendente lite purchaser, and takes subject to the lien of the attachment, whether he had notice or not. "A purchase made of property actually in litigation, pendente lite, though for valuable consideration, and without actual notice, is yet subject to the decision of the suit; and this doctrine is based, not on the presumption of notice, but on reasons of public policy, which make it indispensable, in order to prevent an indefinite multiplication of suits, and give effect to the determination of courts." Bart. Ch....