George, Adm'r, v. Crim et al.
| Decision Date | 07 December 1909 |
| Citation | 66 W.Va. 421 |
| Court | West Virginia Supreme Court |
| Parties | George, Adm'r, v. Crim et al. |
A surety, on the payment by him of a judgment constituting a lien on the property of his principal, is entitled in equity, without an assignment thereof, to be subrogated to all the rights, powers and remedies of the judgment creditor, for the enforcement of the lien against property of the principal debtor for his own benefit. (p. 429).
Though, in law, a judgment lien, or other incumbrance on property, is merged in the legal title to the property by the purchase of the same by the creditor and ceases to exist, it is otherwise in equity, if the interest and just rights of the parties require the lien to be kept alive; and, in such cases, equity will regard it as still subsisting and enforce it by means of subrogation or otherwise for the protection of the purchaser. (p. 430).
Purchase by a judgment creditor of property on which the judgment is a lien does not release a surety in the judgment, if the property so purchased was encumbered by prior liens in favor of the purchaser to the extent of the full value thereof. (p. 431).
A judgment creditor, having a number of judgments against the debtor, in some of which there are sureties, may pursue his remedies by execution and otherwise for the collection of the judgments in which there are no sureties, without violation of any duty to the latter, provided he has not been in any way required by them to proceed to collect, the judgments for which they are liable, and, if property be taken on execution on such other judgments and released, or the executions be returned unsatisfied, the issuance, levying and return of the same, neither release the sureties in such other judgments, nor work a discharge or satisfaction of the judgments on which they were issued, so as to give priority to such others in favor of the sureties. (p. 432).
A surety's right of subrogation is an equity, not always disclosed by the judgment, and persons having no knowledge thereof may deal with the property on which the judgment is a lien as if such right did not exist. (p. 433). G. Same Notice of Claim Effect.
A purchaser of property, with notice of a right in a surety to charge the same, by way of subrogation, takes it subject to such equitable right." (p. 433).
7. Witnesses Competency Transactions With Decedent.
In a suit by a surety, to enforce the lien of a judgment against land of the principal debtor, conveyed to the judgment creditor, and contribution from his co-sureties, after the death of the principal debtor and the judgment creditor, such co-sureties are not competent witnesses to prove the relation of suretyship. (p. 434).
8. Pleading Denial Objections Waiver.
In the absence of an exception for generality, a general, informal and indefinite denial of a material allegation in an answer is sufficient. (p. 429).
Appeal from Circuit Court, Barbour County.
Action by R. T. George, administrator of Allen V. Wilmoth, against J. N. B. Crim and others. From the decree, defendants E. H. Crim and Melville Peck appeal.
Affirmed in part. Reversed in part. Remanded.
W. T. Ice, Jr., for appellants.
W. T. George, for appellee.
pofpenbarger, judge:
A decree of the circuit court of Barbour county, pronounced on the bill of P, T. George, administrator of Allen V. Wilmoth, against J. jSt. B. Crim and others, praying, among other things, subrogation of the estate of plaintiff's decedent to the benefit of judgment liens on a certain tract of land, conveyed by the debtor to Crim, in satisfaction of certain other liens, pending a suit by said Crim against the debtor, one John Howell, having conditionally set aside said deed to the extent of said alleged lien, adjudged the land liable therefor in the hands of E. H. Crim and Melville Peck, vendees of said J. N. B. Crim, and referred the cause to a commissioner, the said E. H. Crim and Peck have appealed.
The facts and proceedings involved have furnished the basis of some three or four suits, the records of all of which have been brought together in this cause by reference, adoption, consolidation and otherwise. One of these was instituted by J. N. B. Crim against John Howell in 1887 to enforce the liens of several judgments, recovered by the former against the latter, among which were the following: One for $979.39, rendered June 19, 1876, one for $992.13, rendered Apr. 9, 1877, one for $655.59, rendered May 24, 1899, and one for $3,090.00, rendered Dec. 17, 1883. There never was a final decree in this cause. The second suit was brought by Geo. A. Lough against said Howell, in 1889, for rescission of a contract of sale of 30 acres of land by the latter to the former, carried into conveyance. As consideration for this land, Lough had paid Howell $350.00 and executed his notes for the residue of purchase money, amounting to $550.00, secured by a vendor's lien. Finding the land encumbered by judgments in favor of Crim and others, he refused to pay any part of the notes, sought rescission and a decree for the money he had paid. No final decree was ever rendered in that cause. In January, 1897, Crim brought another suit for the purpose of enforcing the liens of three judgments, owned by him, against lauds belonging to Allen V. Wilmoth. The first of these was against John Howell and Wilmoth, recovered by S. L. O'Neal, Feb.
18, 1892, and assigned to Crim; the second was against Howell, Wilmoth and B. L. and G. W. Dilworth, recovered by James Nutter, May 26, 1892, and assigned to Crim; and the third was against Howell and Wilmoth, recovered Feb. 4, 1893, by Crim. These judgments were for $133.71, $1,036.60 and $324.00, respectively, and costs. Before Crim brought this suit, the Dilworths had paid $500.00 on the second judgment, and, pending the suit, Wilmoth paid the balance of it and all of the other two, and the suit was thereupon dismissed. In April, 1899, John Howell filed his petition in voluntary bankruptcy in the district court of the United States for the Northern District of West Virginia, and, later, on proof of debts and liens, determination of priorities of lien, sale of his lands by the trustee in bankruptcy and distribution of the funds among the creditors, the proceedings on said petition were closed.
Howell had dealt very extensively in land, and purchased largely on credit and contracted a vast amount of indebtedness, which was reduced to judgments and held mainly by J. N. B. Crim. The record in the cause of Crim v. Howell shows Crim had owned more than twenty judgments against Howell and Howell and others. Some of these had been released, but the amounts remaining unsatisfied and unreleased were large. The report of the appraisers in the bankruptcy proceeding indicates Howell's ownership of eleven tracts of land in Barbour county and two in Randolph county, valued at about $17,500.00. They were sold in said proceeding for $12,205.00'. By the referee's report in that proceeding, it appears that Crim proved lien indebtedness, amounting to $14,857.80, and the representatives of the estate of Samuel Woods, deceased, such indebtedness amounting to $1,762.85. The Crim judgments, held by recovery and assignment from others, range in date from June
19, 1876, to August 14, 1893, and in amounts from slightly over $100.00 up to more than $4,000.00.
In general such were the conditions under which R. T. George, as administrator of Wilmoth, filed his bill in this cause at January Rules, 1904, claiming right of subrogation in respect to the judgments paid by his decedent, originally constituting liens, subsequent to some of those of Crim, on several tracts of land and the coal, oil and gas in other tracts, conveyed by Howell and wife to A. B. Brown, Albert Brown and Geo. W. Gall, Jr., by deed, dated July 5, 1892, in consideration of $17,000.00, while the suit instituted by Crim against Howell, was pending, and another tract of land, containing 327 acres and 20 poles, conveyed by Howell and wife to J. N. B. Crim himself, while said suit was pending, (Feb. 11, 1896), in consideration of $6,743.38, satisfied, as to all but $1,460.12 thereof, by the cancellation and release of certain judgment liens, held by Crim, the said residue of $1,460.12 having been applied in satisfaction of a prior vendor's lien on the land in favor of one Lewis Wilson. By this sale three of Crim's judgments, those of June 19, 1876, April 9, 1877, and May 24, 1879, were wholly satisfied, and another, that of Dec. 17, 1883, partially. These and a number of others were all prior to those recovered against Howell, Wilmoth and others, and substantially paid by Wilmoth. Prior to the conveyance of Feb. 11, 1896, Crim executed a release, including all of the four judgments, wholly and partially satisfied out of the proceeds of that sale, and many others, in so far as they were liens upon the lands conveyed to A. B. Brown, Albert Brown and G. W. Gall, Jr., by deed dated July 5, 1892. These judgments, as rendered, aggregated about $24,000.00, but they were not wholly released. Among them was one of the Wilmoth judgments. According to the testimony of Howell, the consideration of the conveyance to the Browns and Gall consisted of $4,250.00 in cash and ten notes for $1,275.00 each, payable consecutively in ten years, all of which, save $6,566.21, used in the discharge of purchase money indebtedness and two small judgments, went into the hands of Crim on account of Howell's indebtedness to him. Crim seems to have executed a paper, on January 16, 1894, reciting payment and satisfaction of several small judgments, by assignment of purchase money notes, given to Howell by the Browns and Gall. These judgments aggregate about $4, ~ 500.00 and range in date from November...
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