Capehart's v. Absent

• Citation: 10 W.Va. 130
• Parties: Capehart's Ex'r v. Dowery et al
• Decision Date: 28 April 1877
• Court: West Virginia Supreme Court

10 W.Va. 130

Capehart's Ex'r

v.Dowery et al

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

1. An affidavit made under section one of chapter one hundred and six of the Code of West Va., after reciting the amount and justice of the debt and that the debtor had left the State of West Virginia with intent to defraud his creditors, and has assigned and disposed of a part of his property with that intent, as affiant believes, proceeds as follows: "Affiant states the following facts relied on by him to show the existence of the grounds upon which his application for an attachment is based: Affiant is informed and believes that said Joseph S. Dowery is now in the State of Kansas, employed in some business connected with a railroad, and that just before leaving the State of West Virginia, he assigned and disposed of the obligation given him for the purchase money of the steamboat " Energy " at a large discount, and carried the proceeds away without leaving adequate means to satisfy the said claim of the affiant, or any means known to affiant to satisfy a large amount of indebtedness due to other parties, and mortgaged nearly all of his real estate before leaving the State." Held:

That the foregoing affidavit is too vague and indefinite in its statements, and does not furnish reasonable evidence of a fraudulent intent on the part of the debtor, and is therefore insufficient.

2. It is competent for any party interested, and tiling his petition disputing the validity of the plaintiff's attachment, as provided for under section twenty-four of chapter one hundred and six, to move the court to quash the affidavit and attachment; or if such interested party desire to controvert the truth of the facts, or any of them stated in the affidavit, material to the is-suing of the attachment, he may have an issue made up for that purpose, and tried by a jury under the nineteenth section of said chapter one hundred and six.

3. Where a defendant in a suit, in which an attachment has is-

sued, has been served with process, although he has not been served with a copy of the order of attachment, he need not be proceeded against by order of publication, and has no time given him by chapter one hundred and six of the Code, in which to appear in the suit, after the term at which judgment is rendered against him on the claim, and an order made to sell the attached effects or estate; and in such a case no bond is required to be given, as provided for in section twentythree of chapter one hundred and six of the Code.

4. Where a sale of property is made under an order of sale in an

attachment suit, in a case where the parties interested in the property are before the court and the sale is confirmed, and the order of sale, the sale itself, and the order confirming the sale are free from fraud, under section eight of chapter one hundred and thirty-two of the Code, the tide of the purchaser at such sale is not affected by the reversal or setting aside of the order under which the sale is made.

5. But, if the report of the sale and order of confirmation is except-

ed to, and the record discloses, in support of such exceptions, sufficient reasons to show that the sale itself was improper and ought not to have been made, the decree or order of confirmation will be reversed and the sale set aside.

6. The rule caveat emptor applies to a purchaser at a judicial sale, and though after confirmation of the sale he finds that the title he will procure from the court will be worthless, yet he cannot be relieved from the payment of the purchase money.

7. In order that property sold at judicial sales should bring a fair price, it is necessary that the title of purchasers at such sales should be protected.

An appeal from an order of the circuit court of Mason county, made on the 7th day of March, 1872, in an action of debt, with attachment, brought by James Capehart's ex'r against Joseph S. Dowery, and in which the appellants had filed their petitions, claiming respectively different portions of the property attached.

The undertaking for the appeal was given in February, 1872, by the petitioners, James Lenihan, E. A. Young and others.

Johnson, Judge, who delivered the opinion of the Court, gives a statement of the case.

W. H. Tomlinson and G. P. Simpson, for plaintiff in error, referred to the following authorities:

Bump on Fraud. Con., 62; Code W. Va., ch. 106, §20; J. & H. Brien v. Pittman & Co., 12 Leigh, 379; Code W. Va., ch. 106, § 24; MeCluny & Co. v. Jackson, 6 Gratt., 105; Ludington et al v. Hull, 4 W. Va. 130; opinion of Baldwin, J., in Withers v. Carter, 4 Gratt., 410; opinion of Moncure, J., in Scliojield v. Cox et al., 8 Gratt., 533; 2 Bob. Pr., 207; Drake on Atta, § 234; Statutes of Illinois, vol. 2, p. 969; Cox v. Miller, 23 Ill., 476; 34 Pa. St., 299; 9 Cow. (N Y.), 123; SallweU v. McDowell, 39 Mo., 282;.Evans v. McGlasson, 18 Iowa, 150; Savery v. Browning, 18 Iowa, 246; 1 B. C, 1819, 362, § 4; Code W. Va., ch. 74, § 4; Barrett v. Barrett, 31 Tex., 344; 27 Tex., 593; 38 Ill., 418; 24 Ind., 165; 36 Ill., 523; 2 Tuck. Com., 3d ed., 450; 1 Lomax Digest, 394; 4 Cranch, 269; 10 Iowa, 493; 3 Scam. (Ill), 104; 7 Am. R., 149; 10 Wend., 420; 21 Wend., 672;

4 Hill, 598; 7 Hill, 187; 6 Minn., 14; 14 Wend., 237.

John W. English, for defendant in error, cited the following authorities:

Pulliam v. Aler, 15 Gratt., 54; Mantz v. hendley, 2 H. & M., 308; Jones & Ford v. Anderson, 7 Leigh, 309-313; 31 Ill, 306.

Smith & Knight, for defendant in error, referred to the following authorities:

Code W. Va., ch. 106, § 24; Code W. Va., ch. 74, §

5; Withers v. Carter, 4 Gratt., 407; 1 R. C, 362, § 1; Code Va., 1849, 508, §5; Guerrant v. Anderson et al., 4 Rand., 208; McClure v. Thistle's ex'rs, 2 Gratt., 182; Code W. Va., ch. 106, § 19; Code W. Va., ch. 133, §8; Underwood v. Mc Veigh, 23 Gratt., 409.

STATEMENT OP THE CASE BY THE JUDGE.

The plaintiff instituted an action of debt in the circuit court of Mason county against the defendant, Joseph S. Dowery, in 1869, and having made an affidavit under the first section of chapter one hundred and six of the Code of West Virginia, an order of attachment was made in said cause by the clerk of the court, directing the sheriff of said county to attach the real and personal estate of the defendant in sufficient amount to satisfy the plaintiff's debt. The summons was served by delivering a copy of the same to the wife of defendant at his usual place of abode, and explaining the purport thereof. The defendant not appearing, judgment was entered in February, 1870, for the amount of plaintiff's claim, and directing a sale of the attached property for the payment thereof.

Before said sale was confirmed, or any order made for payment of the proceeds, several parties appear in court and ask leave to file their petition, which was granted, setting forth, respectively, various claims and demands to different portions of the attached real estate, some by virtue of deeds or executory contracts for the purchase of the same, and others by virtue of judgment liens, of which they sought the benefit. These petitioning claimants, having exhibited evidence of their respective claims, and given security according to law, moved the court, first to quash the affidavit and attachment, which motion the court overruled, and petitioners excepted. Failing in that motion, they asked leave of the court to controvert before a jury, or before the court, the truth of the facts alleged in the affidavit of the plaintiff, upon which the attachment was founded, upon the ground that said attachment was sued out upon false suggestions; this motion being refused by the court, said petitioners exceptedAnd the matters of law arising upon the attachment and the several petitions and each of them aforesaid, and upon the several claims set up in said petitions being submit- ted to the court, and the court being of opinion that the plaintiff's executor, &c, has a better right to each and all of the property levied upon by virtue of his attachment than any or either of said petitioners, it was ordered, on the 7th day of March, 1872, that each of said petitions be dismissed, and that the plaintiff recover his costs, &c. that the sales of the attached property be confirmed, and the proceeds of sale be paid to the plaintiff. From this judgment the petitioners, having filed their undertaking, have appealed to this Court.

Johnson, Judge:

This case was submitted while the lamented Judge Paull was on the bench, and in consequence of his death and the resignation of Judge Hoffman, it was reargued at the present term of the Court.

Judge Paull prepared an opinion on one branch of the case, which, in justice to his memory, as I fully concur therein, I adopt as my own.

" The first question for determination is this: Was it error on the part of the circuit court to overrule the motion to quash the affidavit and attachment? Before considering this cpiestion directly, we will notice the right of the petitioning claimants, to take the course or make the motions they did in regard to the affidavit and attachment. The nineteenth section of chapter one hundred and six of the Code provides as follows: ' The right to sue out an attachment may be contested, and when the court is of opinion that the facts stated in the affidavit were not sufficient to authorize the issuing thereof, or that the affidavit is otherwise insufficient, judgment shall be entered that the attachment be quashed, ' and then provides how the defendant may contest the truth of the facts, &c, after having made the preceding general provision.

" Section twenty-four provides that 'any person interested may file his petition at any time before the property attached as the estate of the defendant is sold under the decree or judgment, or if the proceeds of the sale have not been paid over to the plaintiff, or his assigns, within, one year after such sale, disputing the validity of the plaintiff's...