First Nat'l Bank Of "Webster Springs. v. John T. McGraw Ea Al. Am. Audit Co.

• Decision Date: 05 December 1919
• Citation: 85 W.Va. 298
• Parties: First National Bank of "Webster Springs et al. v. John T. McGraw ea al. American Audit Co. et al, v. Same.Union Trust & Deposit Co. et al. v. Same.
• Court: West Virginia Supreme Court

85 W.Va. 298

First National Bank of "Webster Springs et al.

v.John T. McGraw ea al.

American Audit Co. et al,

v.Same.

Union Trust & Deposit Co. et al.

v.Same.

Supreme Court of Appeals of West Virginia.

Submitted November 25, 1919.

Decided December 5, 1919.

1. Judgment Necessary Parties Suit to Enforce Judgment

Liens.

In a suit to enforce judgment liens a person who has conveyed to the judgment debtor a part of the land sought to be subjected, subject to a vendors lien in favor of a third person, assumed by the grantee as part of the consideration, is not a necessary party; nor does the omission of persons whose reputed equities in the land are indicated only by uncertain and indefinite evidence, constitute ground of reversal of a decree os sale in such a suit. (p. 305).

2. Same.

Persons holding, as trustees, the legal title to land on which there are judgment liens, or having apparent equitable title thereto, or holding, by assignment from the judgment debtor, the rents arising from a lease on the land, executed after liens attached thereto, are necessary parties to a suit for enforcement of the liens, and a decree of sale of the land, made in their absence, is erroneous and reversible. (p. 305).

3. Same Mortgagee Necessary Party to Suit to Enforce Judg-

ment Liens.

A mortgagee of real estate acquired by the mortgagor after the date of the mortgage does not hold the legal title to the property, but he has an equitable title or interest which makes him a necessary party to a suit to enforce prior judgment liens on the property so mortgaged. (p. 305).

4. Action Consolidation of Suits in Equity Does Not Affect Lack of Necessary Parties.

Consolidation of suits in equity does not change the rules of equity pleading, nor the rights of the parties, wherefore lack of necessary parties to one suit is not ordinarily cured by consolidation with it of another suit to which the omitted persons are parties. (p. 309).

5. Judgment Conclusiveness of Recital as to Process in Decree.

A recital in a decree to the effect that a bill was duly matured and process thereon duly executed on all of the defendants, not absolutely and irreconcilably contradicted by the record, is conelusive of all questions as to service of process pertaining to that bill for the purposes of the suit in which such decree was entered. (p. 310).

6. Equity Recommittal of Report of Commissioner Without Dis- position of Exceptions.

It is not error to recommit a report of a commissioner in chancery, to which there are exceptions, without previous disposition of the exceptions. (p. 310).

7. Justices of the Peace Principal and Agent Judgment on De- fective Process Presumed Valid.

Though an agent has no implied authority to accept service of process against his principal, a judgment of a justice of the peace founded upon such an acceptance of service, is sustained, in the absence of allegation and proof of lack of authority in the agent to accept service, by a rebuttable presumption of validity. (p. 310).

8. Equity Insufficient Exceptions to Report of Commissioners in Chancery.

A commissioner's report made in a suit to enforce judgment liens and purporting to set forth all of the real estate of the debtor and to show the amount of the rents, issues and profits thereof, cannot be overthrown as to such matters, by an exception based upon indefinite testimony and claims as to ownership of additional property, disclosing no legal title, nor any facts clearly importing equitable title, to additional land, in the debtor. (p. 310).

9. Same Objection by Judgment Debtor to Report of Commissioners in Chancery.

The judgment debtor in a suit to enforce judgment liens cannot complain of the inclusion of lands not owned by him, in the report of the commissioner and the decree of sale, for it is not prejudicial to him. (p. 313).

10. Judgment Decree Pleadings Description of Lands.

In such a suit, it is not necessary that either the commissioner's report or the decree of sale minutely describe the lands, as by quantity and location or by metes and bounds, if the pleadings and exhibits contain descriptive matter sufficient to identify them. (p. 313).

11. Same Duty to Proceed Against Co-debtors of Joint Judgment

Debtor in Suit to Enforce Judgment Lien.

Though the co-debtors of a joint judgment debtor should be made parties to a suit to enforce the lien of the judgment against his lands, the creditor is not bound to proceed against the lands of such co-debtors in that suit, nor contemporaneously to prosecute other suits for subjection of their lands to satisfaction of the lien of his judgment. (p. 313).

12. Principal and Surety Enforcement of Joint Judgment Against Co-debtor as Principal.

If the joint judgment debtor whose lands are so proceeded against is the surety of his co-debtor, he may assert his equity against his principal and obtain a decree first subjecting his principal's lands to sale to satisfy the judgment, by way of exoneration, provided both parties and their lands are before the court, in one or more suits, and such procedure will not subject the judgment creditor to undue delay; but the latter cannot be required to await the creation of such conditions. (p. 313).

13. Action Consolidation of Suits to Enforce Judgment Liens Delaying Entry of Decrees.

Nor can such a debtor require a consolidation of two or more judgment lien suits pending in the same court, in some of which the lands of the principal debtors and co-debtors are proceeded against, under such conditions and at such stages of the proceedings against his lands, as will delay the entry of decrees against him in favor of judgment creditors as to whose debts he is not entitled to a decree of exoneration against a surety or co-debtor, either because the relation does not exist or the conditions warranting such a decree do not obtain. (p. 313).

14. Judgment Stay by Cross Bill of Suit to Enforce Judgment Liens,

Nor, after the liens have been ascertained and reported in the suit against his lands and the cause is practically ready for submission and decree, can he stay the proceedings by means of a cross-bill for enforcement of his equities against his co-debtors. It comes too late and may properly be rejected by the court. (p. 316).

15. Same Personal Decree Against Judgment Debtor in Suit to Enforce Judgment Liens.

In a suit to subject the lands of a joint judgment debtor to sale to satisfy the lien of the judgment, it is not error to enter a personal decree against him alone. (p. 317).

16. Same Enforcement of Judgment Liens.

In such a suit, judgments enjoined only to protect the property of a third person from sale to satisfy them, may be proved and allowed, they being wholly unrestrained as to the debtor whose lands are proceeded against. (p. 317).

17. Same Enforcement of Lien Inclusion of Judgment Suit to Enforce Judgment.

It is not error to refuse, in such a suit, to include a judgment not set up or claimed in it by the judgment creditor. (p. 317).

18. Same Enforcement of Judgment Lien Personal Decrees Against Alienees Judgment Debtor.

The debtor in such suit cannot complain of personal decrees against alienees of lands he has sold, for the amounts of judgments against him, nor of failure of the decree of sale to require his remaining lands to be sold first. (p. 317).

19. Evidence Bill to Enforce Judgment Lien Taken as Confessed as to Judgment Debtor's Grantee.

If, in such case, the bill seeks to set aside a conveyance of property, made by the judgment debtor, before any of the judgments were recovered, on the grounds of fraud and lack of consideration, after the right to attack it upon the latter ground has ceased by limitation, and the bill is taken for confessed as to the grantee, but is opposed by an answer of the grantor, squarely and absolutely denying the charge of fraud and also the charge of an absolute conveyance without consideration, but averring the conveyance in question was made upon a trust in his own favor and claiming the equitable title to the land, and there is no proof of the fraud charged, such admission of equitable title does not bind the grantee and can- not be made the basis of a decree subjecting the land to judgment liens and enforcing them. (p. 319).

20. Fraudulent Conveyances Amendment of Bill Suit to En-

force Judgment Liens Against Land Conveyed to Enforce Trust in Grantor.

But the different cause of action and ground of relief, so admitted, constitutes matter for an amendment of the bill, setting up the alleged trust against both the grantor and grantee; and, although it cannot be established otherwise than by a collateral agreement in writing or a written declaration of trust, or the equivalent thereof, if it is sufficiently denied, the benefit of the statute of frauds claimed and the rule inhibiting admission of oral evidence to contradict, alter or vary a written instrument invoked, provided the attendant facts do not constitute an independent equity, yet it may be enforced by a decree, if no defense is interposed or the grantee answers admitting the trust alleged. (p. 319).

21. Trusts Judicial Enforcement of Parol Trust.

Judicial enforcement of a parol trust under the absolute deed of the claimant thereof and against its terms, is not inhibited by the common law, any statute, or rule of evidence, when such trust is judicially admitted. It passes the title by a deed in execution of the decree, agreeably to the requirement of sec. 1 of ch. 71 of the Code. (p. 319).

22. LIs Pendens Territorial Scope.

The territorial scope of the rule Us pendens is coextensive with the jurisdiction of the court in which the suit is pending. (p. 320).

23. Same Jurisdiction Description of Property.

Actual, not merely potential, jurisdiction of the court-is essential to the operation of the rule lis pendens; wherefore, to make it effective, the res litigiosa must be established in some court, by attachment of its jurisdiction to the person, the property and the right or claim asserted against...