Henking v. Anderson.
| Decision Date | 07 February 1891 |
| Citation | 34 W.Va. 709 |
| Court | West Virginia Supreme Court |
| Parties | Henking v. Anderson. |
The Plaintiff" in a suit for specific performance of a contract, who has not performed and is not able to perform such contract on his part, is not entitled to a specific performance on the part of defendant.
Plaintiff in such suit having no debt against defendant has no right to call in question defendant's sale and conveyance of his land.
D. D. Johnson and A. Hutchinson for appellants, cited: Warth's Code, c. 74, s. 1; Id. c. 133, s. 22; Mech. Ag. §§
160, 161; 28 Pa. St. 329; 33 Am. Dec. 647; 10 Mass. 442;
5 Greenl. 336; 12 Mass. 137; Bish. Cont. § 171; 18 Gratt.
801; 18 Am. St. 174; 24 Gratt, 202; Hutch. Great. § 814;
1 Pars. Cont. 49, 468; Chitt. Cont. 200-292; Poll. Cont.
192; Fry Spec. Perf. § 355; 25 Gratt. 642; Perry Tr. §§
476, 511; 6 Am. St. 885 note; 1 Johns. 139; 26 Am. Dec.
107; 38 Am. Dec. 692; 64 N. Y. 41; 68 Am. Dec. 104;
21 W. Va. 469; 11 W. Va. 229; Id. 584; 4 Cow. 207; 15 Am. Dec. 361; 20 W. Va. 251; 20 Gratt. 147; Waite Fraud. Conv. §§ 224, 225, 376; 8 Am. & Eng. Ency. L. 654; 10 W. Va. 87; 29 W. Va 450; 22 Pa. St. 179; 17 W. Va. 717; 72 Am. Dec. 639; 71 Am. Dec. 355; 107 U. S. 262; 34 Mich., 457; 83 Va. 491; Big. Fraud 288, 289; 20 N. J. Eq. 156; 15 '1ST. Y. 362; 21 Gratt. 463; Waite Fraud. Conv. § 241; 84 Pa. St. 253; 29 W. Va. 250; 28 W. Va. 1; 7 West. Pep. 51; 122 U. S. 121; 79 Ala. 516; 28 Am. 375; 9 East 348; Waite Fraud. Conv. § 206; 102 Mass. 276.
0. Johnson for appellee, P, S. Brown, cited:
14 W. Va. 22; 3 Gratt. 12; 6 W. Va. 110; Lew. Trusts
645; Hill Trust, 221, 579; Per. Tr. § 921; 2 Swan. 100;
& B. Eq. 480; 11 Paige 314; 4 Johns. Ch'y 136; 4 Ves. 97;
Sto. Eq. Juris. § 1280; 1 Wend. 470; 4 Abb. Ct. App.
Dec. 387; 7 Watts 48; 7 Cush. 599; 18 W. Va. 507; 9 W.
Va. 636; 29 W. Va. 703; 11 W. Va. 562; Id. 584; Code,
c. 125, s. 35; 47 Am. Dec. 408; 7l Am. Dec. 355; 72 Am.
Dec. 639; 14 Am. Dec. 181; 21 Am. Dec. 530; 31 Kan.
298; 109 Ill. 461; 11 La. 355; 41 Ark. 316; 105 Ill. 272;
17 Fed. Pep. 293; 23 How. 477; 24 Ala. 544; 2 Doug.
166; 2 111.344; 29 Gratt. 628; 14 W. Va. 66; 63 Ala.
C. 497; 64 K C. 500; 67 N. C. 190; Bump Fraud. Cont.
W. Va. 211; 10 W. Va 130; 9 S. E. Pep. 702; 17 W. Va.
718; 98 1ST. C. 266; 4 Kent. Comm. 169, 170, 172; 31 Am.
Pep. 712; 73 Mo. 275; 58 Mo. 331; 40 Mo. 405; 47 Mo.
63 Me. 328; 54 Md. 170; 73 Mo. 74; 80 N Y. 451; 49 la.
41; 38 Mich. 253; 47 Conn. 47; 97 Ind. 46; 49 Tex. 26;
Fla. 866; 76 Ala. 103; 33 Mo. App. 645; 112 U. S. 144;
71 la. 124; 44 Am. Dec. 785; 60 Am. Dec. 57; 73 Mo.
74; 88 Mo. 150; 94 Mo. 98; 27 W. Va. 639; 47 Miss. 169;
28 W. Va. 715; 31 W. Va. 137. W. A. Parsons of counsel for appellee Brown, cited:
8 Am. & Eng. Ency. L. 757; Code, c. 74, s. 1; 17 W. Va.
765-770; 115 IT. S. 61; 76 Ala. 103; 92 Ind. 109; 48 Mich.
1; 18 Fla. 866; 32 K W. Rep. 240; Am. Dig. (1887) p.
544 § 65; 3 South. Rep. 569; 39 K W. Rep. 219; 8 S. W.
J. H. Riley for appellees Brown and Beaty, cited: 11 W. Va. 585; Id. 262; Bish. Cont. §§ 958, 964, 966; 16 W. Va. 658; 31 W. Va. 70; 2 Pars. Cont. §§ 2, 3, 4, 7; 2 "Wheat. 336; Add. Cont. 193, 787; 2 Pom. Eq. § 971; 6 Wall. 299; 9 W. Va. 100; 22 W. Va. 366-369; 27 W. Va. 681; 32 W. Va. 34.
C. I. Brown for appellee Beaty, cited:
22 W. Va. 366; 32 W. Va. 34; 2 Munf. 310; Bump Fraud. Cont. 581; 36 Cal. 223; 29 Mass. 89; 18 Me. 231; 14 Me. 370; 12 la. 218; 39 Mo. 91; 97 Mass. 145; 1 Neb. 254; 2 Rich. 59; 18 Minn. 414; 64 Me. 239; 6 J. J. Marsh, 94; 44 Ill.208; 22 Pa, 179; 24 Miss. 134; 37 Me. 124; 3 Grant 237; 4 Mason 312; 2 Md. 365; 21 Miss. 30; 42 Mo. 551; 43 Ill. 29; 52 N. Y. 274; 26 Ala. 443; 15 la. 229; 26 Mo. 533; 33 la. 175; 51 Mo. 592; Id. 43; 39 la. 442; 64 Me. 23; 3 Barb. 588; 8 Ind. 43; 8 Am. & Eng. Ency. L. 763; 54 Md. 170; 79 Ky. 562; Sto. Cont. § 448; 7 Am. Dec, 305; 13 Ohio St, 92; 13 Johns. 190, 397; Add. Cont. 34; 4 S. E. Rep. 575; 17 Am. Dec. 311, 361; 1 Sto. Eq. § 234.
This is a suit in equity brought by Henking, Bovie & Co.,
on the_day of January, 1889, in the Circuit Court of
Jackson county, against G. W. Anderson, E. Beaty, R. S. Brown, and others, to enforce, on the part of defendant Beaty, the specific performance by him of a certain contract of the 17th of March, 1888, whereby Beaty undertook to pay the debts of defendant Anderson, debtor who had made an assignment for the benefit of his creditors; and to set aside as fraudulant a conveyance of a certain tract of land made by Beaty and wife to defendant, Brown, and to administer the trust for the benefit of the beneficiaries.
The several defendants answered, depositions were taken, and the cause came on to he heard on the 21st day of March, 1890, when the Circuit Court dismissed the bill as to defendants Beaty and Brown, retaining the cause for the purpose of administering the trust-property. From this decree plaintiffs appealed.
The material facts are as follows: Defendant George W. Anderson was a merchant doing business in the county of Jackson, and, becoming insolvent and unable to pay his debts, by deed dated 10th of March, 1888, and acknowledged and admitted to record 12th of March, 1888, conveyed to defendant J. A. Seamon, trustee, all his personal property thereinafter named, to wit; his stock of merchandise in his store-house situated near the mouth of Little Sandy creek, in Jackson county, state of West Virginia, and every article owned or claimed by him in said store house, to be held by the said J. A. Seamon to secure and pay certain creditors of the said George W.Anderson that is to say, each and every creditor in each and every indebtedness to any and all his creditors. Said J. A. Seamon, as such trustee or assignee, was to take immediate possession and control of said property theretofore mentioned, and each and every part and parcel thereof, and hold the same for the purposes thereinbefore mentioned, and without preference to pay said indebtedness to each and every creditor pro rata, after giving due notice, and should in all respects conform his acts to the law in such cases made and provided, and notify all non-resident creditors of the assignment; and the said Seamon was thereby empowered with full control and possession of all said property, for the purposes therein mentioned.
His duties as such trustee are prescribed by the Code, c. 72, s. 6. If required by any cestui que trust, the law made it his duty to give bond before receiving any proceeds of sale. This was required, and he gave the bond with security approved. Then it was his duty to sell this personal property for cash, pay costs and commissions, and pay over the residue upon the debts pro rata. While the trustee was engaged in making an inventory of the property, some of the creditors and agents of creditors, appeared on the ground and proposed to Anderson the debtor, that they would give him time if he would secure the payment of the debts, and on the 17th March, 1888, a contract with that object was entered into between Anderson, the debtor, E. Beaty, the outsider, who was to settle and pay off their debts within the time given, and six of the principal creditors, not a majority in number, but a majority in interest, so far as amount of debts yet appear. Seamon, the trustee, was not a party to this contract; but Anderson and these six creditors, reciting that they had sold and transferred all their claims on Anderson, and all their interests in said assignment and assets conveyed to him by said deed to E. Beaty, authorized and directed him to turn over and deliver to said E. Beaty at once all the goods and other property so conveyed to him, and in his possession and control. This was done. I here give this contract in full, for it presents the turning point of the case: (Exhibit B.) "This contract made this 17th day of March, 1888, between E. Beaty of Jackson county, West Virginia, of the first part, and G. W. Anderson, of the said county, and the creditors of the said G. W. Anderson, of various places, whose names are signed to this writing, of the second part, witnesseth: That whereas, said G. W. Anderson has become financially embarrassed, and did on March the 10th, 1888, make an assignment to J. A. Seamon of a stock of goods for the benefit of his creditors, now, therefore, to settle and pay off the liabilities of said G. W. Anderson, and help him out of said embarrassment, and in the consideration of the assignment and conveyance, and agreements hereinafter made, the said E. Beaty hereby agrees and binds himself, as security, to pay the liabilities of said G. W. Anderson due and owing to the respective creditors whose names and amounts are hereto signed and annexed, the same to pay each one in four equal payments in six, twelve, eighteen, and twenty four months from this date, with interest from date; and he, said Beaty, agrees to sign any notes required by said creditors as such security for said Anderson, agreeing therein to pay their respective claims as aforesaid. In consideration of said Beaty's becoming security for said claims as aforesaid, the said G. W. Anderson and said creditors, and each of them, whose names are signed hereto, hereby sell, assign, transfer, and convey unto the said E. Beaty all their right, title, and interest (and the interest of each of them) in and to the stock of goods etc., conveyed to J. A. Seamon, trustee as aforesaid, and also...
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