Delaplain v. Wilkinson

• Decision Date: 27 November 1880
• Court: West Virginia Supreme Court
• Parties: Delaplain & Son v. Wilkinson & Co. el als.

17 W.Va. 242

Delaplain & Son

v.Wilkinson & Co. el als.

Supreme Court of Appeals of West Virginia.

Decided November 27, 1880.

December 23, 1808,

On December 23, 1808, J. N. W. (the owner) by contract sold a part of a lot of land containing two acres, situate at or near the town of Bridgeport, in Harrison comity, to E. B. H., and at the time the contract was committed to writing and signed by said J. N. W. and delivered to said E. B. H., and he was then put in possession of the property purchased; and afterwards, on the 2d day of April, 1869, » the said J. N. W. by contract sold the residue of said lot of land to said E. B. H., and at that time the last named contract of sale was committed to writing and signed by said J. N. W. and delivered to said E. B. H., and he was then put in possession of the land last so purchased by him. Said E, B. H., soon after he was so put in possession, made valuable and permanent improvements thereon, and in Septemberr, 1871, the said E. B. H. by verbal contract sold said lot of land to W. P. G., a brother of G. W. G., and G. W. G. paid said J. N. W. the balance of purchase-money due to him on the whole of said lot, and the said W. P. G. and G. W. G. together paid said E. B. H. the purchase-money due him on the said lot from said W. P. G. The said E. B. H. continued in possession of said lot until some time in September, 1871, when by verbal contract only, he sold the whole of said lot of land to the said W. P. G., who was immediately put in possession of the same, and continued in the possession thereof until some time in August, 1872, when by verbal contract only he sold the same to his said brother G. W. G., who was then and there put in possession of said lot of land under said verbal contract, and he and those claiming under him continued in such possession from thence hitherto. Said G. W. G. and those claiming under him after his said purchase and before the rendition of the judgments hereinafter men- tioned made valuable permanent improvements thereon. Said E. B. H. received his said purchase-money long before the date of said judgments as well also the said W. P. G-. In September, 1871, about the time said E. B. H. made said verbal contra ct of sale to said W. P. G., he verbally directed the said j. N. W. to make the deed for the said lot of land to said W. P. G; the said J. N. W. did accordingly afterwards on the 19th day of September. 1871, make and deliver to the said W. P. G. a deed for said land duly acknowledged for record, to which the wife of said J. N. W. was a party. Sometime after said deed was so made and delivered by said J. N. W. to said W. P. G., the said W. p. G. took said deed to said J. n. W., and wished to know if said J. N. W. could not change the deed, to said G. W, G., as he (said W. P. G.) had sold said lot of land to the said G. W. G., and the said J. N. W. then inserted in the said deed the; name of said G. W. G. in place and in lieu of the name of said W. P. G. Some misunderstanding was afterwards gotten up between the said W. p. G. and G. W. G., and said W. P. G. notified said J. N. W. to hold the deed until the difference between them was settled. And accordingly said J. N. W. did hold the said deed until the 10th day of October, 1874, and then gave it to said G. W. G., and he on the same day had it recorded in the clerk's office of said Harrison county. On the 5th day of June, 1874, L. S. D.& Son, recovered against said j. n. W. & W. H. J. as partners under the firm name of J. N. Wilkinson & Co., a judgment in the circuit court of said county of Harr: son for the sum of $373.09, with interest from May the 25th, 1874, and $12.45 costs, and afterwards on the 11th day of August, 1874, the said judgment was docketed in the clerk's office of the county court of said county according to law. On the 18th day of August, 1874, H. p. & Co. obtained a judgment against the said J. N. W. by confession in the clerk's office of said circuit court for the sum of $796.98, with interest thereon from the 18th day of August, 1871, and costs, and the last named judgment was docketed in the clerk's office of the county court of said county on the 31st day of August, 1874. The said contracts in writing of 1868 and 1869 for the sale of said lot of land by said j. N. W. to said E. B. H. were never admitted to record, and the said deed of the 19th day of September, 1871, from said j. N. W. to the said W. P. G. was never admitted to rec-' ord. On the 28th day of September, 1874, the said L. S. D. & Son commenced their suit on the equity side of the circuit court of said county of Harrison, against said J. N. Wilkinson and others, to enforce the judgment-lien of their said judgment against lands of the said J. N. Wilkinson in the bill mentioned, but do not mention therein the said lot of land sold by said J. N. W. to the said E. B. H. In their bill the said L. S. D. & Son state the said judgment of said H. P. & Co. as a subsisting judgment, and they make the saidH. P. & Co. defendants thereto. Afterwards the said L. S. D. & Son, filed an amended bill in the cause praying, among other things, that the said lot of two acres of land be sold to satisfy their judgment-lien thereon. The defendant, G. W. G., filed his answers to said bills, in which he in substance denies substantially that the said judgments or either of them are under the circumstances above stated liens upon said lot of two acres of ground. Afterwards the said circuit court upon hearing dismissed the plaintiffs' said bills as to the said G. W. G., and decreed that said G. W. G. should recover his costs therein against the plaintiffs, for the reason, as' stated in the decree of dismissal, that the court was of opinion, that the house and lot owned by said G. W. G. and in controversy in this cause is not subject to the lien of either of said judgments. Held:

1. That the said circuit court erred in said decree in dismissing the said bills as to the said G. W. G., and in decreeing costs against the plaintiffs; and that the said circuit court erred in its said opinion stated in the said decree of dismissal.

2. It is immaterial whether the creditor has notice or not, when the debt was contracted. The statute declares it void as to all creditors, without discriminating as it does in the clause touching purchasers, in respect, to notice. Guerrant v. Anderson, 4 Rand. 212; 2 Min. Inst. 866, 872.

Appeal from a decree of the circuit court of the county of Harrison, rendered on the 19th day of December 1879, in a cause in said court then pending, wherein Lewis S. Delaplain & Son were plaintiffs and Jasper N. Wilkinson & Co. and others were defendants, allowed upon the petition of Hurst, Purnell & Co.

Hon. A. B. Fleming, judge of the second judicial circuit, rendered the decree appealed from.

Haymond, Judge, furnished the following statement of the case:

It appears, that on the 28th day of September, 1874, Lewis S. Delaplain and Robert M. Delaplain, merchants and partners under the firm, name and style of L. S. Delaplain & Son, brought their suit in equity in the circuit court of the county of Harrison against Jasper N. Wilkinson and William H. Jones, merchants and partners under the firm, name and style of J. N. Wilkinson & Co.; and John E. Hurst, James Maddox, Richard Purnell and Loyd L. Jackson, merchants and partners under the firm, name and style of Hurst, Purnell & Co.; and John W. Coffman; and that afterwards, at the October rules, 1874, of said court the plaintiffs filed their bill in the cause against the defendants therein. The plaintiffs in their bill allege substantially, that on the 5th day of June, 1874, they recovered in the said circuit court of Harrison county a judgment against the defendants, J. N. Wilkinson & Co., for $373.00, with interest from the 25th day of May, 1874, and $12.45 costs; that they caused a writ of fieri facias to be sued out upon said judgment, which was returned "no property found"; that the said J. N. Wilkinson & Co., have in fact no personal estate, out of which the said judgment or any part thereof can be made; that the plaintiffs caused the said judgment to be docketed within ninety days from the time it was obtained, to wit: on the 11th day of August, 1874, in the judgment-docket in the clerk's office of the county court of Harrison county; that the defendants, Hurst, Purnell & Co., obtained a judgment against the defendant, J. N. Wilkinson, on the 18th day of August, 1874, by confession in the clerk's office of the circuit court of Harrison county, for the sum of $796.98, with interest thereon from the 18th day of August, 1874, which was docketed August 31, 1874, in the proper office of said county, which plaintiffs suppose, remains unpaid; that the said firm of J. N. Wilkinson & Co., does not own any real estate, nor does the defendant, Jones, own s, ny; that at the time plaintiffs' judgment was obtained the defendant, Wilkinson, was and still is the owner in fee simple of the following land and lots, on which their said judgment is a lien, to wit: a lot in Bridgeport, Harrison county, containing one acre; another in same place containing one fourth of an acre; another lot or parcel of land situate on Smith's run rear Bridgeport, Harrison county, containing eight acres and fifty poles, and on branch of Simpson Creek deed of B. Stout to Wilkinson marked "S" and made part of the bill; that the defendant, Coffman, sets up some sort of claim to a portion of said lots and land, but whatever claim that may be, plaintiffs say. that it does not affect their lien, because their judgment was obtained and docketed, before the said claim was acquired. The plaintiffs pray, that said land and lots be sold to pay and satisfy their said judgment, and also for general relief.

On the 4th day of December, 1874, the defendants, Hurst, Purnell & Co., filed their joint answer, in which they substantially admit the allegations of the bill and claim that their judgment is unpaid. They also say,...