C. L. Ritter Lumber Co. Inc v. Coal Mountain Mining Co

• Decision Date: 11 September 1913
• Citation: 115 Va. 370,79 S.E. 322
• Parties: C. L. RITTER LUMBER CO., Inc. v. COAL MOUNTAIN MINING CO.
• Court: Virginia Supreme Court

79 S.E. 322

(115 Va. 370)

C. L. RITTER LUMBER CO., Inc.

v.COAL MOUNTAIN MINING CO.

Supreme Court of Appeals of Virginia.

Sept. 11, 1913.

Appeal from Circuit Court, Tazewell County.

Suit by the Coal Mountain Mining Company against R. A. Ayers and others. From a decree in favor of complainant, but holding the C. L. Ritter Lumber Company, Incorporated, secondarily liable only for a balance due on the sate of certain land to satisfy complainant's vendor's lien, the Lumber Company appeals. Dismissed.

Geo. W. St. Clair, of Tazewell, for appellant.

Greever & Gillespie, of Tazewell, for appellee.

WHITTLE, J. The appellee, the Coal Mountain Mining Company, conveyed to R. A. Ayers 183.60 acres of land situated in Buchanan county for $2,754, $688.50 of which was paid in cash and the residue was divided into three credit installments of $68S.50 each. Notes were taken for the deferred payments, and a vendor's lien reserved on the face of the deed to secure the unpaid purchase money. R. A. Ayers afterwards conveyed the land to the Empire Coal Land Corporation, and that corporation sold the merchantable standing timber on the tract to the appellant, the C. L. Ritter Lumber Company, Incorporated, which cut and removed timber therefrom of the value of $1,018.50. The appellee then filed a bill in equity against R. A. Ayers, the C. L. Ritter Lumber Company, Incorporated, and others, to recover of Ayers the amount of unpaid purchase money and to subject the land to sale to satisfy the vendor's lien. The bill further prayed that, if the proceeds of sale of the property should prove insufficient to discharge the lien, the plaintiff might recover of the C. L. Ritter Lumber Company, Incorporated, the balance of the amount due under the deed, provided such balance did not exceed $1,018.50, the value of the timber cut and removed from the land by that company. From a decree in accordance with the prayer of the bill, the C. L. Ritter Lumber Company, Incorporated, appealed.

We are met at the threshold of the case with a motion to dismiss the appeal on the ground that it was improvidently awarded. In respect to that motion it must be observed that the decree against the appellant is not absolute, but is conditioned upon the failure of the land, the primary subject for payment of the debt, when exposed to sale, to produce an amount sufficient to discharge in whole or in part the vendee's lien resting upon it. Until such sale the decree against the appellant is not enforceable, and then it is only enforceable for such amount as may remain unpaid after applying the proceeds of sale to the original debt. It is therefore obvious that the ultimate liability of the appellant is at present wholly conjectural, and cannot be ascertained until the land, the primary subject for the payment of the debt, has been sold.

Section 3455 of the Code declares that "no petition shall be presented for an appeal from, or writ of error or supersedeas to, any final judgment, decree, or order, * * * of any court * * * when the controversy is for a matter less in value or amount than three hundred dollars, * * * unless there be drawn in question a freehold or franchise or the title or bounds of land, or the action of the State...