Downes v. Timber

Decision Date02 June 1925
Docket Number(C. C. No. 263)
Citation99 W.Va. 267
CourtWest Virginia Supreme Court
PartiesJ. M. N. Downes, Trustee et al v. Long Timber andLumber Company et al.
1. Trust Trustee May Ask Court of Chancery for Advice as to Exercise of Powers Under Deed of Trust.

The jurisdiction of a court of chancery may be invoked to instruct the trustee how he shall execute the trust, where there is an impediment to the exercise of his powers so as to render it inequitable for him to proceed without the aid of such court, (p. 273.) (Trusts, 39 Cyc. p. 317).

2. Equity It is Generally Sufficient in Equity If All Parties Interested in Subject of Suit are Before Court Either as Plaintiffs or Defendants.

While at law all persons having a joint interest must join in the action as plaintiffs, and while, in equity, this rule is preferable, it is generally sufficient if all the parties interested in the subject of the suit are before the court either as plaintiffs or defendants, (p. 274.)

(Equity 21 C. J. § 3 07).

3. Account Bill Stating Running Accounts for Many Years, and Praying for Account for Decree for Balance, Will be Entertained in Equity, Though Assumpsit Might Have Lain at Law.

A bill in chancery, stating running accounts for many years between plaintiffs and defendants, consisting of numerous items of debit and credit or claims for them on both sides, and praying an account and decree for balance, is a bill for an account which equity will entertain, though assumpsit might have lain at law. (p. 275.)

(Accounts and Accounting:, 1 C. J. §§ 58, 63).

4. Equity Bill for Accounting, and to Set Aside Deed as Preference, is Not Multifarious for Joining as Defendants in One Suit All Beneficiaries of Such Transaction. A bill for an accounting and to set aside a deed as a preference, is not multifarious for joining as defendants in one suit all the beneficiaries of such unlawful transaction, all being interested in the rights and remedies presented by the bill. (p. 276.)

(Equity 21 C. J. §§ 438, 447).

5. Same If Equity Has Jurisdiction on One Ground, it Will Give Complete Relief.

Where, upon one ground, a court of equity has jurisdiction, it will give complete relief, even in matters as to which, considered alone, it would not have jurisdiction, (p. 276.)

(Equity, 21 C. J. § 117).

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi).

Certified questions from Circuit Court, Harrison County.

Suit by J. M. N. Downes, trustee, and others against the Long Timber & Lumber Company and others. After overruling demurrer to amended bill of complaint, court certified questions.

Ruling Affirmed.

E. G. Smith and D. D. Johnson, for plaintiffs. Charles B. Johnson, for defendants.

Woods, Judge:

In the year 1921 two actions at law and a suit in equity were instituted in the Circuit Court of Harrison County against Long Timber and Lumber Company and others, defendants. In the first action at law Roy H. Mace and Upton W. Mace, partners doing business as Mace Brothers Lumber Company, were the plaintiffs, and Long Timber and Lumber Company, a corporation, was the defendant. In the second action at law said Roy H. Mace and Upton W. Mace, partners as aforesaid, and C. D. Munson, William Post and J. M. N. Downes, trustee, were plaintiffs, and Long Timber and Lumber Company was the defendant. In the suit in equity said J. M. N. Downes, trustee, and said C. D. Munson and William Post were the plaintiffs, and Long Timber and Lumber Company, a corporation, and said Roy H. Mace and Upton W. Mace, partners, raider the firm name of Mace Brothers Lumber Company, and Roy H. Mace, Upton W. Mace, Flossie Mace, Anna D. Mace, J. E. Long Coal Company, a corporation, and J. E. Long, were defendants. The relief in each case was sought against Long Timber and Lumber Company. The defendant, Long Timber and Lumber Company, moved, in the equity suit, that the plaintiffs common to each suit elect in which suit or action they would seek their relief. The court denied such motion as made, but granted the same to the extent that such plaintiffs were ordered to elect as between the two law actions. The plaintiffs did, in pursuance thereof, dismiss the law action No. 1. Law action No. 2 and the said chancery suit are still pending. The defendants, Long Timber and Lumber Company, J. E. Long Coal Company and J. E. Long, being related in interests, then demurred to the bill of complaint. The.court sustained the demurrer. The plaintiffs to the original bill of complaint then moved to amend by transposing the four Maces from defendants to plaintiffs, and in other respects supplementing the allegations of the original bill, and tendered with such motion such amended bill of complaint, and the said defendants, the two Long Companies and Long (being the remaining defendants), objected to the granting of the right to so amend, which objection being overruled, the amended bill was then filed, and the said defendants then appeared and, without waiving such objection, demurred to the amended bill of complaint, and, this being overruled, the court then certified questions to this court respecting (a) the validity of its action in granting such right to amend, and (b) the sufficiency of the amended bill of complaint.

To a proper consideration of the questions involved on certificate, a brief statement of the cause of action as set out in the original bill, as well as the facts supplementing it by way of amendment, is necessary. The cause of action arises upon a written contract, set forth in haec verba in the bill, bearing date July 15, 1919, and made by Roy H. Mace and Upton W. Mace, partners as Mace Brothers Lumber Company, as first parties; C. D. Munson and William Post, as second parties; and Long Timber and Lumber Company, as third party. Under that agreement the Mace Brothers, who owned a saw mill grant, certain manufactured lumber, and standing timber on certain lands, sold to the Long Timber and Lumber Company lumber then manufactured upon special terms as to the prices, times of delivery, and amounts and kinds of lumber, and agreed to manufacture and deliver otherlumber. This agreement was made subject to the terms and conditions of a prior contract made between the first and second parties above named. By said prior contract, which is likewise set out in full in the bill of complaint, dated October 2, 1918, it seems that Munson and Post engaged to loan money to the extent of $12,000.00 to Mace Brothers to finance them in the purchase and manufacture of such timber, and, to secure the same upon advancement thereof, Mace Brothers (1) were to sell the lumber at the market price, invoice the same in the name of Munson and Post when shipment of any lumber was made, and to apply out of the total sales price of each 1, 000 feet when collected, $20.00 thereof to the liquidation of the Munson and Post debt; (2) were to pay Munson and Post six per cent, interest on the debt of Mace Brothers to Munson and Post, and, in addition thereto, were to pay the sum of ten per cent, of the sale price of the lumber; (3) and, by way of security for the payment of the above sums, all the timber, lumber, machinery, and the lands, etc., of the Maces were conveyed to J. M. N. Downes, trustee. It was provided, that in case the timber was not manufactured in two years, or in case default was made in the re-payment of the debt in two years, then, upon written notice, the trustee was authorized to sell in the usual manner, the property conveyed to said trustee, in the order set out in the instrument. "While the defendants Long Company and J. E. Long, were not parties to the contract of October 2, 1918, the contract of July 15, 1919, in which said defendants were named as third parties, was made subject to the terms and conditions of the contract of October 2, 1918, between the first and second parties "as to persons to whom payment is made and consent to the sale." The bill further alleges the recordation of the said contract of October 2, 1918, prior to the execution of the agreement of July 15, 1919; that all the standing timber and all the logs, all the manufactured lumber, the saw mill at which the lumber was theretofore and thereafter manufactured, and all the property here in controversy, contemplated and mentioned in said contract of July 15, 1919, is included in said contract of October 2, 1918, and always has been and still is subject to the terms thereof; that the said J. M. N. Downes, trustee, accepted the trust, and that advancements contemplated therein had not been repaid to the said Munson and Post, but that a large sum still remains due and owing by Mace Brothers Lumber Company to them; that said trustee has been given written notice by said Munson and Post to sell the property held in trust by him, making sale of the manufactured lumber, the saw mill and teams of horses first, and further notifying the said trustee to make settlement by suit if necessary with the defendant Long Timber and Lumber Company before making sale under said trust deed; that the debt secured by said trust deed, was derived from and grows out of a subsequent contract to which Munson and Post were parties, subject to said contract containing said deed of trust, and growing out of the lumber manufactured under said two contracts and, therefore, first applicable to the payment of said Munson and Post debt, and involves many transactions on both sides, both in favor and against said Long Timber and Lumber Company; that said transactions involved matters not easily ascertainable by a jury, and to the ascertainment of which a law court is not well adapted, but easily ascertained by a court of equity, and to which the machinery of equity is well adapted for the purpose of ascertaining them; that Long Timber and Lumber Company entered into said contract with notice actual and constructive, that the same was a trust and had been so dealt with between the parties to the various...

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12 cases
  • Tate v. United Fuel Gas Co., 790
    • United States
    • West Virginia Supreme Court
    • July 15, 1952
    ...are purely legal. Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; McMillan v. Connor, 82 W.Va. 173, 95 S.E. 642; Downes v. Long Timber & Lumber Co., 99 W.Va. 267, 128 S.E. 385; Charlton v. Chevrolet Motor Co., 116 W.Va. 25, 174 S.E. 570. Such principle is generally accepted. See I Pomeroy's Equi......
  • Webber v. Offhaus
    • United States
    • West Virginia Supreme Court
    • December 12, 1950
    ...involved to avoid a multiplicity of suits.' Point 1, syllabus, Lay v. Phillips, 116 W.Va. 60, 178 S.E. 523; Downes v. Long Timber and Lumber Company, 99 W.Va. 267, 128 S.E. 385; Watson v. Watson, 45 W.Va. 290, 31 S.E. 939; Cecil v. Clark, 44 W.Va. 659, 30 S.E. 216; Chrislip v. Teter, 43 W.V......
  • Kuhn v. Shreeve
    • United States
    • West Virginia Supreme Court
    • December 10, 1955
    ...of equity jurisprudence; that equity having jurisdiction of a cause on one ground, complete relief will be given. Downes v. Long Timber & Lumber Co., 99 W.Va. 267, 128 S.E. 385; Given v. United Fuel Gas Co., 84 W.Va. 301, 99 S.E. 476. See Payne, Malcolm & Gallaher v. Fitzwater, 103 W.Va. 12......
  • State ex rel. Emery v. Rodgers, 10565
    • United States
    • West Virginia Supreme Court
    • July 7, 1953
    ...Custer v. Hall, 71 W.Va. 119, 76 S.E. 183; Smith v. White, 71 W.Va. 639, 642, 78 S.E. 378, 48 L.R.A.,N.S., 623; Downes v. Long Timber Lumber Co., 99 W.Va. 267, 128 S.E. 385. Though equity has jurisdiction upon one ground, a court of equity should give complete relief even 'in matters as to ......
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