Casto ct at. v. Greek.
| Decision Date | 23 March 1898 |
| Citation | 44 W.Va. 332 |
| Court | West Virginia Supreme Court |
| Parties | Casto ct at. v. Greek. |
1. Statutes Retroactive Statute.
The following clause, contained in chapter 4, Acts 1895: "But if such transfer or charge be admitted to record within eight months after it is made, then such suit to be availing must be brought within four months after such transfer or charge was admitted to record," does not apply to transfers or charges in existence prior to the passage of such enactment, to wit, February 10, 1895.
2. Creditor's Bill Cross-Bill Fraudulent Preferences.
Where a lien creditor has filed a bill to ascertain the property of his debtor and the liens and priorities against the same, a creditor defendant may file in such suit an answer in the nature of a cross-bill attacking any of the liens involved therein as fraudulent preferences under the statutes in such case made and provided.
3. Creditors Liens.
The mere fact that such attacking creditor holds a subsequent lien that may be void as a preference does not bar him from the benefits accruing under a prior lien void as a preference.
Appeal from Circuit Court, Jackson County.
Suit by C. C. Casto against N. L. Casto and others. W. T. Greer, a defendant, being creditor, filed a cross-bill. An exception by J. R. Casto and others to the filing of the same was sustained, and Greer appeals.
Reversed.
Wm. A. Parsons, for appellant,
Elmer L. Stone and C. E. Hogg, for appellees.
In the circuit court of the county of Jackson, on the 24th day of December, 1894, C. C. Casto, a judgment lien creditor, instituted a chancery suit to ascertain the real estate and the liens and priorities thereon of N. L. and G. W. Casto, and to enforce sale thereof for the payment of such liens. On the 9th day of August, 1894, before a final decree of adjudication had been entered, W. T. Greer, a defendant lien creditor, tendered and filed his separate answer in the nature of a cross-bill attacking certain liens against the property of N. L. Casto as void preferences inuring to the benefit of all his creditors under section 2, chapter 123, Acts 1891, and praying that such property be distributed pro rata among such creditors. Before process was issued on this answer, John R. and Mary E. Casto and the Valley Bank, defendants, excepted to the tiling of the same for two reasons: (1) Because the subject matter thereof is not germane to the objects and purposes of the suit as made out in the plaintiff's original bill, and are entirely foreign thereto, and constitute a new and different cause of action, (2) Because the matters set up in said cross-bill as grounds for affirmative relief are barred by the provisions of chapter 5, Acts 1895, amendatory to section 2, chapter 123, Acts 1891. The circuit court overruled the first exception, and properly so, for the reason that the suit as then pending was for the benefit of all the creditors of N. L. Casto, and any of them had the right in such suit to attack any of the preferences shown as being illegal and void. Such attack was not foreign to, but germane to, the purposes of the suit, which were to ascertain the legal liens and their priorities against the real estate involved. The circuit court, on the other hand, erred in holding that the exceptions to the answer were well taken, for the reason that more than four months had elapsed from the passage of chapter 4, Acts 1895, amendatory of section 2, chapter 123, Acts 189:. The liens attacked were all in existence at the time: chapter 4, Acts 1895, took effect. In the case of State V. Mines, 38 W. Va. 126, (18 S. E. 470), this Court held (point 5 Syl.): ...
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