Buster And Beard v. Holland Etals.

• Decision Date: 06 February 1886
• Citation: 27 W.Va. 510
• Court: West Virginia Supreme Court
• Parties: Buster and Beard v. Holland etals.

27 W.Va. 510

Buster and Beard v. Holland etals.

Supreme Court of Appeals of West Virginia.

Submitted January 14, 1886.

Decided February 6, 1886,

1 A decree ordering the sale of a defendant's land is an appealable deeree under ch. 135 sec. 7, subdivision 7 of the Code, and therefore no error in such decree can be reviewed, unless the petiton for the appeal was presented within five years after sneh decree was rendered (reduced now to two years by Acts of 1882, ch. 157, see. 3, p, 506). Even though such decree was not a final decree, and a final decree was subsequently rendered, and an appeal was properly obtained from it, if the error in this final decree arose solely from' errors in such decree of sale followed in the final decree, (p. 523.)

I. A failure for fourteen years to make any entry of a cause at all or to make any entry but a continuance is no discontinuance of the cause, if the court has made no order dismissing the cause for want of prosecution, as provided by sec. 8, of ch. 127 or the ('ode. (p. 527.)

3. But when a decree for the sale of land has remained unexecuted for fourteen years, and a petition or bill is tiled by the debtor asking the enjoining of such sale of his land, because the debt, for which the land had been decreed to be sold, had since the decree been paid in full, and the truth of the facts stated in such bill are sworn to by the debtor, the court should enjoin such sale until the further order of the court and should refer the cause to a commissioner to ascertain what, if anything, is still due on such debt. (p. 527.)

4. Where one is indebted to another in several debts, and the debtor makes payments without directing to which of the debts the payments shall be applied, and the creditor makes no particular application of the payments when received, there is no settled rule that the payments shall be either according to the presumed intention of the debtor, or tha they shall be applied in the manner most beneficial to the he or the other; but it devolves on the court to apply the according to the justice of the particular case with a vie all its circumstances, (p. 531.)

5. A court in granting or refusing a eontin ice of a cause ought to exercise a sound discretion, and if a pai be ruled into a trial or hearing of a cause, when it appears he entitled to a contnuance, the judgment or a decree against him will be reversed by an appellate court; but the appellate court will not reverse the judgment or decree of the inferior court for such reason, unless its action was plainly erroneous, (p. 584.)

6. As to any matter not theretofore adjudicated, if a deposition be taken and returned before the final hearing of a cause, it may be read; but the right to have it read is not an absolute right, (p. 536.)

7. If a cause has been referred to a commissioner, and ample opportunity has been afforded to both parties to introduce their witnessess, and the commissioner has made his report, and the cause is ready for hearing, a deposition afterwards taken as to a con- troverted matter in the report ought generally to be disregarded by the court, (p. 537.)

Arbuckle $McPherson and J. A. Preston for appellant.

A. F. Matthews for appellees.

Statement by Green, Judge:

While the testimony in this cause is contradictory, and where not contradictory is often indefinite as to material facts, and while the pleadings too are often so vague as to be almost unintelligible, it seems to me we can collect iroin the entire record the substantial facts, out of which the controversy in this cause has arisen. Some of the facts occurred prior to the institution of the suit, and others after the suit was commenced; and it is in this, as in most other eases, absolutely essential in deciding it, that we should distinguish the former from the latter. This constitutes one of the principal difficulties in the decision of this cause. It is difficult to determine, when the various events, on which this cause depends, happened, owing to the vagueness with which these events are stated in the pleadings and in the testimony. Indeed the very first decree entered in the cause would without hesitation on our part be set aside, if for no other reason, because of the vague and indefinite statement of the facts, on \vhich the plaintiffs ask relief as stated in their bill, but for the fact, that, as we will hereafter see. this Court has no power now to review this decree on this appeal.

The material facts, out of which this controversy has arisen, seem to be as follows: On November 11, 1865, the plaintiffs, Buster and Beard, sold to Robert Robinson, the appellant, and C. B. Dyer and E. W. Hall, a certain tanyard property in Greenbrier county, West Virginia, and the stock ot leather, hides, &c, on hand for $4,150.00, with interest from date, to be paid in three equal installments in six, twelve and twentyfour months; and three bonds of that date were in accordance with the terms of the sale executed by the vendees to the vendors. The vendees were at once put in possession of the property and paid $30.00 or $40.00 on these bonds representing this purchase-money in skins and leather. Dyer and Hall both became insolvent, and neither ot them ever paid anything on their purchase-money bonds individually. But Robinson paid in property and money considerable sums on the first of these bonds. There is considerable conflict in the testimony as to how much was thus paid; but the evidence, f think, satisfactorily shows that the entire amount so paid prior to March 1, 1867, including the $30.00 or $40.00 paid in skins and leather, amounted to something over $500.00, and that the balance due on this bond on that day including interest was $927.38. The second purchasemoney bond was then due, and with the interest on it amounted to $1,491.87. The entire amount ot the purchasemoney then due was $2,419.25. To pay tins large amount Robert Robinson then sold to John, M. Holland a tract of land containing 150 acres more or less lying in said county and assigned two bonds, which were executed to him for the purchase of the land, to Buster and Beard, they agreeing to receive them and apply their amount as a credit on this $2,419.25 due them, which had been due for some time, excluding of course the third and last purchase-money bond, which was for $1,383.33 1/3 with interest from November 11, 1865, due on November 11, 1867, more than seven months afterwards. These two bonds of Holland to Robinson were dated March 1, 1867, and bore interest from that date and were each for $1,000.00 and were payable probably in six and twelve months after date. The two sums of $1,000.00 each were on March 1, 1867, applied as a credit on the $2,419.25 then due, paying off the balance due on the first bond, which was surrendered to Robinson, and paying $1,072.62 on the second of these bonds, which was then credited by that amount, leaving a balance due on that bond as of March 1, 1867, ot $419.25 besides the third bond of $1,383.33 1/3 with interest from March 1, 1867, which would fall due on November 11, 1867.

Suits were brought by the assignees, Buster and Beard, in the name of the obligor, Robert Robinson, on the two bonds ot John M. Holland tor $1,000.00 each with interest from March 1, 1867, very shortly after they fell due, and judgments were obtained by default on them for the full amount at the April and September terms, 1868, of the circuit court of Greenbrier county, and executions issued by the plaintiffs on these two judgments, which executions in December, 1868, were returned "No property found." Shortly thereafter, Buster and Beard brought this chancery suit to enforce the Ren of these judgments on this tract ot 150 acres, which Holland had bought of Robinson. The bill was filed at September rules, 1869. It is a very defective bill. It states only that Robert Robinson had assigned to the plaintiffs, Buster and Beard, these two bonds of $1,000.00 executed to him by John M. Holland for payment of the purchase-money of this tract of 150 acres of land in Greenbrier county, West Virginia; but it does not state the consideration, or that there was any consideration fo this assignment. It states as above, that they obtained the judgments above described on these two bonds against Holland, and that the executions issued ou them were returned "No property found," and that these judgments can only be satisfied by a sale of said 150 acres of land, upon which they are liens, and on which Holland lived at that time. The bill then concludes as fallows:

"Your orators further represent that the said Robert Robinson purchased the said land from Henry F. Hunter, who has since died, and that the legal title to said land is now vested in William T. Mann and John A. Hunter; that Robert F. Dennis has qualified as the administrator ot the said Henry F. Hunter, deceased, and that the said H. F. Hunter, deceased, left a widow, Caroline Hunter, and the following children, all of whom are infants of tender years, viz., Francis, Carter B., Hattie, Benjamin F. and Robert F.

"In tender consideration of the premises, and being without remedy save in a court of equity, your orators pray that the said John M. Holland, Robert Robinson, Robert F. Dennis, administrator of Henry F. Hunter, deceased, Caroline Hunter, and the said infant children of H. F. Hunter, deceased, by their guardian ad litem (to be appointed by this honorable court or its clerk), William T. Mann and John A. Hunter may be made parties defendant to this bill and be required to answer the same fully upon their oaths; that the said lands may be sold, and that your orators'judgments may be satisfied out of the proceeds of the sale, and that your orators may have such other, further and complete relief as consists with equity and is applicable to the circumstances of their case; may the State's spa. issue. And as in duty, &c, your orators will ever pray."

The various parties named in the bill were made defendants. A formal answer...