Haskin Wood-vulcanizing Co. Of Wash. v. Cleveland Shipbldg. Co

• Decision Date: 25 March 1897
• Citation: 26 S.E. 878,94 Va. 439
• Court: Virginia Supreme Court
• Parties: HASKIN WOOD-VULCANIZING CO. OF WASHINGTON, D. C., et al. v. CLEVELAND SHIPBUILDING CO.

26 S.E. 878

94 Va. 439

HASKIN WOOD-VULCANIZING CO. OF WASHINGTON, D. C., et al.

v.CLEVELAND SHIPBUILDING CO.

Supreme Court of Appeals of Virginia.

March 25, 1897.

Equity Pleading— Multifariousness— Fixtures —Creditors' Suit—Judicial Sale.

1. A bill in a general creditors' suit is not multifarious where it seeks to enforce a mechanic's lien in favor of complainant, to set aside a deed of trust executed by defendant, to have another deed of trust declared to inure to the benefit of all creditors, and to convene defendant's creditors and wind up its affairs.

2. Machinery is a part of a "building, " so as to entitle the manufacturer to a mechanic's lien (Code, § 2475), where it consists of four steel tanks, each 105 feet long, which were the principal part of a wood-vulcanizing plant, — the tanks being set on foundations, and the building then erected over them, —though they were not physically annexed to the structure.

3. A decree for the sale of property in a general creditors' suit, in which all claims have been audited, is presumed to be for the benefit of all creditors, and not for the satisfaction of complainant's debt alone.

4. On a sale in a general creditors' suit, it is proper to sell in separate parcels property on which complainant has a mechanic's lien, and property covered by a trust deed which inured to the benefit of all creditors.

Appeal from corporation court of Alexandria.

Bill by the Cleveland Shipbuilding Company, for itself and all other creditors, against the Haskin Wood-Vulcanizing Company of Washington, D. C, and others. There was a decree in favor of complainant, and defendants appeal. Affirmed.

The bill by complainant, for itself and all other creditors of the Haskin Wood-Vulcanizing Company, alleges the insolvency of said company; that complainant did work and furnished materials for said company, for which it is entitled to a mechanic's lien, and on which it has perfected a lien as required by the Code; that on April 1, 1893, said company delivered a deed of trust on its propertyto secure the payment of certain coupon bonds of the company, which deed, complainant alleges, is void; that on July 31, 1893, said company delivered another deed of trust of its property to secure the payment of notes given and to be given by it; and that only a small amount of notes are outstanding and secured by such deed of trust. Relief is prayed—First, for the enforcement of complainant's lien; second, that the deed of April 1, 1893, be declared void; third, that defendant disclose the amount of notes outstanding and secured by the deed of July 31, 1893, and that said deed inure to the benefit of all creditors; and, fourth, that said company be declared insolvent, its affairs wound up, and the corporation dissolved. The special commissioner to whom the cause was referred to report, among other things, the liens upon the property of the Haskin Wood-Vulcanizing Company, reported that said liens were—First, state taxes; second, the lien of complainant; third, that of the bondholders of the company; and, fourth, the deed of trust of July 31, 1893. The decree of sale provided that: "It appearing to the court that a sale of the real estate mentioned in the said report will be necessary to satisfy the liens as reported by the said special commissioner, it is further ordered, adjudged, and decreed that the said real estate be sold by ——, who are hereby appointed special commissioners, at public auction, in the manner following: First, the real estate described in the complainant's claim of lien; second, the real estate conveyed by the deed of trust of July 31, 1893."

James R. Caton and F. L. Smith, for appellants.

John M. Johnson, for appellee.

HARRISON, J. The court is of opinion that the bill in this case is not multifarious, and the demurrer thereto was properly overruled. There is no valid objection to the form of the bill or its scope. It was proper that the matters of litigation embraced by it should be settled in one suit. The rights of the appellant could suffer no prejudice therefrom, and the convenience of all parties was secured thereby. Steel Co. v. Thomas, 93 Va. —, 25 S. E. 110.

The court is further of opinion that under section 1149 of the Code the trust deed of July 31, 1893, inures to the benefit of all the creditors of appellant existing at its date. The language of the statute is: "If any such company create any lien or encumbrance on its works or property for the purpose of giving a preference to one or more creditors of the company over any other creditor or creditors, except to secure a debt contracted, or money borrowed at the...