Camden v. Raymond.

Decision Date02 November 1876
CourtWest Virginia Supreme Court
PartiesCamden v. Raymond.

II. brought a chancery suit to enforce a vendor's lien against the lands of a. and to attach his propHrty, an 1 that of his surety C, aand C. being alleged to be non-residents of the State. The court ascertained their indebtedness, when it rendered its decree, to be $3,-504, 52, and that they would be further indebted at a future period $10,307 more. In ascertaining this indebtedness, the court charged thein with compound interest on the purchase money of the land; did not allow a credit of $750 for which the land had been rented out under a previous order of the court, and before decreeing a sale of the land which was subject to the vendor's lien, did not collect and apply certain effects in the hands of a third party due to a., and which was attached. The court decreed that the plaintiff recover of a. and C, said sum of $3,507 52 with interest, and unless th m wis piil in thirty days, special commissioners, appointed by the court, should sell A's land which was subject to this vendors lien. In the same decree, it was further adjudged, that the $10,307, to become due, was also a vendor's lien on this land, and that it was likewise a lien on the property of A. and C. which had been levied on under the attachment; and leave was given the plaintiff, thereafter, to apply for a decree to sell the lands of C. attached, and also to apply for a decree to enforce the payment of the $10,307. Under this decree a sale was made which was confirmed, and more than five years afterwards, C. filed his an. swer and afterwards a petition to rehear these decrees. The court refused to rehear these decrees, and ordered the sale of C's lands, attached to pay the balance due plaintiff, ascertained, by assuming the amount named in the former deciee of sale, as showing the real amount then due. C. appeals from this decree and those preceedingon which it was based. Held:

1. The first decree of sale, and the decree confirming the sale were both interlocutory decrees, and not final either as to A. or C. 2. C. being a surety, bound to pay the whole of the debt not made out of hn principal A., h»s such an interest in the provisions of this decree for the-vale of AN lands, as entitles him to have it reviewed on lis appeal.

3. Piuse interlocutory le '-rees may he reviewed upon C's appeal, promptly taken, from the de-ree fur the sale ol the land though more than live years had elapsed since the rendition of these into r1ocutory decrees.

4. Though there be error, in the amount decreed-o he due from A. and 0., fur the non-pavment of which As land was ordered to be sold, still this court would not, after the confirmation of the sale* pet aside the sale, or the decree ordering the saleven though the sale was made immediately after the renditkn of the decree of sale; hut it would simply correct the error, by allowing to A. and C. credit for the amount of the error on the balance due from them.

2. No sale of real estate winch has been attached, can be ordered until all the personal property a tached has be::n sold.

3. If a court make an order to sell real es;a e when ii had no jurisdie lion to make such order, the owner of.-i-h real estate not having been summoned, or other wise brought etore the court, the Ay* pellate C >ar.; wdl reverse s ich decree in ioio, as also the order confirming a sa e made under such ecrte.

4. Such a decree, and s ich order confirming said s»i le, should be treat ed as nullities even in a collateral controver y.

5. Taxes on lands accruing while the land is being rented out under an order of the court, should be paid out of the rent.

6. If a decree recites that the cause ca na on to be heard on bill, answer arid general replication thereto, and an appeal is taken from such decree, and depositions which had been taken to sustain the answer are copied in the record these depositions will not be read or considered in the Appellate Court.

Appeal from a decree of the circuit coirt of Harrison county, rendered on the twenty-fourth day of Jan nary, 1874, in a cause therein pending, in which Luther Havmoud was plaintiff, and Gideon D. Ci.mden, and R. Snowden Andrews, were defendants.

Appeal granted on the petition of said Camden, appellant. The facts are set forth in the opinion of the Court.

Hon. C. S. Lewis, Judge of said circuit court, presided at the hearing helov Caleb Boggess, Charles Marshall and Bradley T. John'son, for appellant.

Edwin Maxwell and JV. Goff, Jr., for appellee.

Green, Judge.

Luther Haymond, trustee, filed his bill in the circuit court of Harrison county, at February rules, 1863, agai nst Richard Snowden Andrews, and Gideon D. Camden, as non-residents, and William E. Lovett and Lott Bnwen, as home defendants. The bill alleges that Luther Haymond, trustee, on July 15, 1 the hands of the home defendants, Love: t and Bowen. The bill further alleged that Andrews bnd not been in' Harrison county for eighteen months, thai: he was exercising no care over this eight hundred and nineteen acres of land, and it was going to waste, and that the plaintiff's debt was thereby endangered. The prayer of the bill was that this eight hundred and nineteen acres of land be rented out, and the rents applied to the plaintiff's debts, and that this land he held liable to the payment thereof; that an attachment should issue against Andrews and Camden to be levied on the r estates; that Lovett and Bowen be made defendants, an 1 disclose what money and effects of the absent defendants, they have in their hands; that the eight hundred and nineteen acre tract, and the other estate of Camden an 1 Andrews, be sold, and the plaintiff's debt paid, and for general relief.

The bill was sworn to, and an order in vacation was thereupon made, directing a special commissioner to rent out Andrew's land. An order of publication against Andrews and Camden, was duly made and executed, in which it is recited, that it appeared, by affidavit, that they were non-residents of this State; the affid ivit referred to is not, however, copied in the record.

Lovett filed his answer, stating that he had nothing in his hands, except a lease ot a part of Andrew's land to Bowen, on which he owed $800, but a portion of wdhich was subject to a previous attachment in the county court of Harrison, issued by Henderson and P i)'don, against Andrews and others. The commissioner o rent, reported that he had rented Andrew's farm for $750 for one year to April 1, 1864, payable January 1, 1864. This report was confirmed, and he was ordered to collect the rent when it should become due. On December 12, I860, after reciting that order of public it ion had been returned duly executed against the absent defendants, Andrews and Camden, and decree nisi as to them, and that process had been duly executed on Bowen, who failing to answer, the bill was taken for confessed as to him, and that the cause was heard on the answer of defend-

"ant, Lovett, and general replication thereto, and on the bill and exhibits, and that the court had heard such proof as was offered against the non-resident defendants, the court decreed that the plaintiff recover of the defendants, Andrews and Camden, $3,504.52 with interest on certain parts thereof, from certain dates, and the costs of the suit. The court, in the said decree, further recited that it appeared, not only that said sum, but also the single bill of Andrews and Camden for $1,307, payable April 3, 1864, were a part of the purchase money of the eight hundred and nineteen acre tract of land, and that a lien thereon was expressly reserved to secure their payment, and, therefore, declared them to be a lien on said land, and declared that unless Andrews and Camden should, within thirty days, pay the plaintiff said sum of $3,504.52, with the interest aforesaid, that commissioners, thereby appointed, should sell, in a specified manner, said tract of eight hundred and nineteen acres. The court, in said decree, further recites, that the attachments were issued on sufficient cause, and were levied on the property mentioned in the returns on the attachments, and declared that they were liens on said property, but the plaintiff not asking then for a decree for the sale of Camden's real property, leave was given him thereafter to apply for such a decree, "as well as for a decree to enforce the payment of said single bill payable on April 4, 1864, for $10,07." And the court further ordered the rents, when collected, to be applied first to the payments of costs of all sorts incurred in the suit, and the residue to be paid to the plaintiff on interest due to him.

The commissioners of sale reported that on March 12, 1864, they sold this tract of land of eight hundred and nineteen acres, at public auction, in the manner prescribed by the decree, and that James Lynch was the purchaser at the price of $12,110, and that he had complied with the terms of sale.

On March 26, 1864, the court confirmed the sale, di-

rected the collection of the deferred payments when they became due, and after payment of certain costs, directed the special commissioners to pay to the plaintiff the amount heretofore decreed to him, and th: residue as the court might afterwards direct. The com nissioners were required to give a bond, in the penalty)f $2,000, conditioned, as the law required, before collecting the purchase money.

On June 14, 1864, the court ordered tl e taxes on said land for 1863, amounting to $44.23, to be paid by the commissioners out of the proceeds of the sale, and on March 18, 1867, the court, reciting that Bowen had paid plaintiffs counsel $375.60, the amount of his indebtedness, it was ordered to be applied, first to the discharge of the decree in favor of Henderson and Paydon against Andrews and others, which suit was then dismissed, and the residue to L. Haymond, on his decree, and the suit was then dismissed as to Bowen.

On June 4, 1870, Camden, by leave of the...

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    ...351; Hoback v. Miller, 44 W.Va. 635, 29 S.E. 1014; Fowler v. Lewis, 36 W.Va. 112, 14 S.E. 447; Haymond v. Camden, 22 W.Va. 180; Camden v. Haymond, 9 W.Va. 680; 11 Michie's Jurisprudence, Judgments and Decrees, Section 145; 11 Michie's Jurisprudence, Jurisdiction, Section 9. This proceeding ......
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    ...Hoback v. Miller, 44 W.Va. 635, 29 S.E. 1014; Fowler v. Lewis' Adm'r, 36 W.Va. 112, 14 S.E. 447; Haymond v. Camden, 22 W.Va. 180; Camden v. Haymond, 9 W.Va. 680; 11 M.J., Judgments and Decrees, Section 145; 11 M.J., Jurisdiction, Section 9. By Section 1, Article 1, Chapter 53, Code, 1931, t......
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    ...351; Hoback v. Miller, 44 W.Va. 635, 29 S.E. 1014; Fowler v. Lewis, 36 W.Va. 112, 14 S.E. 447; Haymond v. Camden, 22 W.Va. 180; Camden v. Haymond, 9 W.Va. 680; 11 Michie's Jurisprudence, Judgments and Decrees, Section 145; 11 Michie's Jurisprudence, Jurisdiction, Section In 11 Michie's Juri......
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    ...41 W.Va. 339, 23 S.E. 571 (1895); Watson v. Wigginton, 28 W.Va. 533 (1886); Steenrod v. Railroad Co., 25 W.Va. 133 (1884); Camden v. Haymond, 9 W.Va. 680 (1876). On the other hand, we have said that if a Rule 59(e) motion addresses only some claims, but not all, then the time for appeal is ......
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