Core v. Strickler.

• Decision Date: 01 October 1884
• Citation: 24 W.Va. 689
• Parties: Core v. Strickler.
• Court: West Virginia Supreme Court

24 W.Va. 689

Core

v.Strickler.

Supreme Court of Appeals of West Virginia.

Submitted June 16, 1884

Decided October 1, 1884.

1. A decree made upon the hearing on the merits, which settles and adjudicates all the matters in controversy between the parties, is such a final decree that a bill of review will lie to it, although much may remain to be done before it can be completely carried into execution, (p. 694.)

2. A bill of review will lie to a de3ree in a creditors' suit, which ascer-tains the amounts and priorities of all the debts sought to be established in the cause as lie is on real estate, and which orders '

said debts to be paid and the sale of the real estate on which said debts are adjudged to be liens, (p. 695.)

3. A bill of review will not lie to review such decree, unless it is exhibited within three years from its date, although it may complain of errors committed in subsequent decrees of the cause, pronounced within three years from the time such bill isexhib-ited. (p. 696.)

4. Where a sale of real estate is made under a decree of court and

confirmed without exception, such sale is not void because made by a commissioner not previously authorized to make it; and, therefore, a bill of review does not lie to correct the irregularity of such sale. (p. 696.)

The facts of the case are stated in the opinion of the Court.

J. A. Hutchinson for appellant. Cole $ Miller for appellee. Snyder, Judge:

A. S. Core, on October 19, 1881, by leave of the court filed his bill of review in the circuit court of Ritchie county against J. P. Strickler, Granville E. Jarvis, Allen Hudgins and others for the purpose of reviewing and reversing two decrees pronounced in the suit of said Strickler and Jarvis against said Hudgins, Core and others, theretofore pending in said court, the first entered at the April term, 1877, and the other on May 4, 1880, for errors "apparent on the face of the record." The cause was heard on November 14, 1882, when the court entered a decree dismissing said bill of review and the plaintiff therein obtained an appeal to this Court.

The facts, so far as it is necessary to state them on this appeal are, substantially, as follows:

At the May term, 1868, of said circuit court, James M., Stephenson obtained a decree for the sale of a tract of one hundred acres of land against Allen Hudgins to pay three hundred and fiity dollars with interest and costs, being a balance of the purchase-money for said land secured by a vendor's lien thereon and, also, to pay off a judgment in favor of A. S. Core for four hundred and thirty-two dollars and seventy cents with interest, subject to credits, which was also a lien on said land. A sale was made under said decree in September, 1869, and the former owner, Hudgins, became the purchaser at six hundred dollars, a sum sufficient to pay off said vendor's lien, costs and the balance unpaid on the judgment of Core. The sale was confirmed and on October 16, 1871, the commissioner of the court conveyed the land to Hudgins and on the same day Hudgins conveyed fifty acres of said land to a trustee to secure the payment of a bond of that date for five hundred and thirty-eight dollars and fifty cents due six months after date and payable to said Core. Before the execution of said deeds, that is, in March and May 1871, said Strickler and Jarvis and other creditors recovered judgments against Hudgins which had been promptly docketed on the judgment-lien docket of said county. The fifty acres not embraced in Core's trust-deed were sold and conveyed by Hudgins to Jesse H. Hammond and the other fifty acres were sold by the trustee and purchased by the appellant Core. After this, at the November rules, 1872, said Strickler and Jarvis brought their suit in equity to subject said one hundred acres of land to the payment of their said judgments, making the appellant said Hudgins and others defendants to their bill, and alleging therein that said land was liable for the payment of said judgments and that said Hudgins was not then the owner of any land and had not been the owner of any except said one hundred acres since their judgments had been recovered. The appellant here answered said bill and averred in his answer that, at the sale under the decree in favor of Stephenson aforesaid, he had bid off the land and agreed with Hudgins that the commissioner might report him, Hudgins, the purchaser, and that he, appellant, would discharge the debt of Stephenson and take a trust-deed on the land, when the commissioner should make the deed to Hudgins, to secure the amount thus paid to Stephenson and also for the balance due on the judgment of appellant; that it was in pursuance of this agreement that the said trustdeed of October 16, 1871, was executed on the same day the deed was made to Hudgins by the commissioner. The cause was referred to a commissioner to state and report the liens on said land, and he reported the liens in the order of their priorities, placing the trust-lien of appellant last in priority, but stating that, if the amount included in the appellant's trust should hold from the date of the original judgment, it would be first in order of priority and if'from the date of the trust-deed it would be last in priority; and he submitted the question of priority of this debt to the court. There was no exception to this report. The court at the April term, 1877, being of opinion that the appellant by taking the trust-deed of October 16, 1871, including therein the balance due on his judgment, had lost the priority of the lien of his judgment, confirmed the report of the commissioner and ordered the debts therein stated to be paid in the order reported, thus placing the appellant's debt last in priority. By the same decree the court appointed C. F. Scott and C. C. Cole commissioners to sell the land to pay said debts and costs. At the November term, 1878, a decree was entered appointing W. L. Cole commissioner to sell said land "in the place of C. C. Cole and C. F. Scott who were appointed by said decree to make sale." On May 4, 1880, a decree was entered which, after reciting that C. F. Scott and C. C. Cole, commissioners, appointed by a former decree to sell the land, had filed their report of sale, confirmed the said sale without exception and ordered the money to be collected by commissioner Scott and paid over to the creditors according to the order and priority fixed by the former decree.

After stating the foregoing facts in much detail, the bill of review prays that the said decree of the April term, 1877, and that of May 4, 1880, may be reviewed and set aside for the following errors apparent on the record:

First. Because the judgment of the appellant mentioned in the commissioner's report should have been given priority over the other debts reported.

Second. Because the principal part of the debt secured in the trust-deed of October 16, 1871, was for purchase-money due Stephenson which had been paid off by appellant under an agreement between him and Hudgins that he was to be substituted to the lien of Stephenson on the land, and the deed to Hudgins by the commissioner and the trust-deed to secure him, having been executed at the same time they constituted but one and the same transaction, and therefore he was entitled to priority by reason of his subrogation to the vendor's lien of Stephenson.

Third. Because having satisfied the vendor's lien to Stephenson, the appellant was entitled to be subrogated to the place of Stephenson against Hudgins, in any event, and it was error not to so declare and decree; and

Fourth. Because 0. C. Cole and C. F. Scott who made the sale had been displaced and W. L. Cole appointed in their place to make the sale, therefore, the sale by the former was void and it was error not to so decree.

The defendant, J. P. Strickler, answered the said bill denying that there were any errors in said decrees for which a bill of review would lie, or that there was any error whatever in the record. He also averred that the decree of April, 1877, was final and the bill of review having been brought in October, 1881, more than three years after, it was barred by the statute of limitations, &c.

1. The enquiry first presented is, had the right of the appellant to review the decree of April, 1877, become barred by the statute of limitations at the time he filed his bill? Our statute provides:

" A court or judge allowing a bill of review may award an injunction to the decree to be reviewed. But no bill of review shall be allowed to a final decree, unless it be exhibited within three years next after such decree," &c. Code, eh. 133 § 5.

The decree of April, 1877, as we have seen, was rendered more than three years before the bill of review was exhibited, and the question then raised, was that a final decree within the meaning of this statute? If it was, then, it cannot be reviewed by this bill.

It is very difficult to determine from the authorities precisely what is comprehended by the term "final decree." There is an apparent inconsistency in the cases on the subject. But I think this is more apparent than real. It must be recollected that there are three kinds of final decrees:

First, a decree from which an appeal will lie. This is defined by one statute to be any " decree or order * * * requiring money to be paid, or real estate to be sold, or the possession or title of the property to be changed, or adjudicating the principles of the cause" Acts 1882, ch. 1*57 § 1.

Second, a decree which not only adjudicates all the matters and merits of the cause, but which disposes of the details and puts the parties out of court, so that no further order can be made or action had in the cause unless, by a new proceeding and summons, the parties...