Hicks v. Roanoke Brick Co

• Decision Date: 01 July 1897
• Citation: 27 S.E. 596,94 Va. 741
• Parties: HICKS v. ROANOKE BRICK CO. et al.
• Court: Virginia Supreme Court

27 S.E. 596

94 Va. 741

HICKS

v.ROANOKE BRICK CO. et al.

Supreme Court of Appeals of Virginia.

July 1, 1897.

Appeals—Jurisdictional Amount — Dismissal — Equitable Assignments—Mechanics' Liens— Equitable Liens—Executions—Lien.

1. Jurisdiction is given to the supreme court as to appellees whose claims are each too smallto confer it, where the judgment deprives appellant of a sum large enough to confer it.

2. The dismissal of an appeal operates as an affirmance of the decree of the lower court by virtue of Code, § 3475, providing that after the dismissal of an appeal no other appeal shall be allowed.

3. Where a fund to become due was assigned to secure future advances, the assignee's agreement to pay a certain amount thereof when received to a creditor of the assignor gave the creditor no lien on the fund, nor was it an equitable assignment thereof, especially where the assignment was annulled after the agreement was made, and before the assignee had collected the fund.

4. A mechanic's lien cannot be acquired on public property.

5. The furnishing of materials necessary for the completion of a sewer gives no lien on a portion of the contract price due the contractor from the city.

6. Where a fund to become due was assigned to secure future advances, an order drawn by the assignor in favor of a creditor directing the assignee, on receiving the fund, to pay the creditor's claim out of it, did not give the creditor a lien on the fund, nor constitute an equitable assignment of it, especially where the assignment was annulled before any part of the fund had been collected by the assignee.

7. A judgment creditor issuing in April an execution which is returned in June has a lien prior to that of a creditor garnishing in December a fund to which the debtor became entitled between April and June, but which was not then payable, by virtue of Code, §§ 3601, 3602, making the issuance of a writ of fieri facias a lien on non-leviable property so long as the judgment is enforceable.

Appeal from corporation court of Roanoke.

Bill of review by R. Randolph Hicks, trustee, L. H. Vaughan, and Didier & Griffeth against W. F. Patterson, the Fidelity Loan & Trust Company, and the city of Roanoke. On their several petitions, the Roanoke Brick Company, Guggenheimer & Co., Williams, White & Co., R. H. Angell & Co., and Charles and H. M. Swab were permitted to become parties defendant, and from a decree permitting them to share in the fund in suit complainant Hicks appeals. Reversed.

R. R. Hicks and A. A. Phlegar, for appellant.

Smith & King, Wilsen & Manson, and Cocke & Glasgow, for appellees.

RIELY, J. The motion of appellees Guggenheimer & Co., Williams, White & Co., and Charles and H. M. Swab to dismiss the appeal as to them must, under the numerous decisions of this court relative to its jurisdiction, be overruled. I need only refer to some of them. Gage v. Crockett, 27 Grat. 735; Harman v. City of Lynchburg, 33 Grat. 37; Fink v. Denny, 75 Va. 663; Duffy v. Figgat, 80 Va. 664; Saunders v. Waggoner, 82 Va. 316; Hawkins v. Gresham, 85 Va. 34, 6 S. E. 472; Pitts v. Spotts, 86 Va. 71, 9 S. E. 501; Craig v. Williams, 90 Va. 500, 18 S. E. 899; Williams v. Clark, 93 Va. 690, 25 S. E. 1013. See, also, Umbarger v. Watts, 25 Grat 167, and Rodd v. Heartt, 17 Wall. 354.

While the amount decreed to each of the said appellees Is less than $500, the claim of the appellant is far in excess of that sum. By the decision of the lower court in favor of the appellees, he was deprived of the greater part of about $3,600 of the fund, which he and L, H. Vaughan would have otherwise received. This is the matter in dispute, —the amount In controversy as to him, —and gives this court jurisdiction as to all of the appellees.

It becomes necessary, therefore, to consider the claim of the appellant to the amount in controversy as against that of the several appellees to the sums decreed to them respectively.

On December 17, 1892, W. F. Patterson, in order to secure what he was owing to the Fidelity Loan & Trust Company, and to obtain the necessary means to carry on the work for which he had contracted with the city of Roanoke, made an assignment to said company of all moneys due and to become due to him from the said city for work done and materials furnished, and to be done and furnished, under his contracts with the city for public improvements.

On December 22, 1892, Edmund Didier and L. H. Vaughan filed their bill to set aside the assignment on the ground of fraud, and at the same time attached the moneys coming to Patterson from the city. It was shown that the assignment, though absolute on its face, was only intended as a security for moneys already borrowed by Patterson from the company, and for future loans and advances to enable him to perform his said contracts. The court sustained the validity of the assignment and abated the attachment, and its decree on appeal was affirmed by this court Didier v. Patterson, 93 Va. 534, 25 S. E. 661.

On December 5, 1893, and while the appeal was pending in this court, the complainants filed their bill of review to the said decree and again sued out an attachment against the moneys due to Patterson from the city. At the hearing of the bill of review, the court set aside and annulled as fraudulent the said assignment.

To this decree Patterson obtained an appeal from this court, but, failing to perfect the appeal by giving the required bond, it was dismissed. By section 3475 of the Code, it is provided that "after the dismission of an appeal, writ of error, or supersedeas, no other appeal, writ of error, or supersedeas shall be allowed to or from the same judgment, decree, or order." The result of the dismission of the appeal of Patterson was, therefore, without any consideration of it by this court, to operate as an affirmance of the decree of the lower court annulling the said assignment for fraud, and declaring it void. Barksdale v. Fitzgerald, 76 Va. 893, and Cobbs v. Gilchrist, 80 Va. 503.

It is under this state of the case that we come to consider the right of the several appellees to payment of their debts out of the moneys due by the city to Patterson as against the right of the appellant.

The respective claims of the Roanoke Brick Company, R. H. Angell, and Guggenheimer & Co. rest on very similar grounds, and will be first considered.

The petition of the Roanoke Brick Company, after referring to the assignment made by Patterson to the Fidelity Loan & Trust Company on December 17, 1892, and alleging that it was made for certain purposes, sets forth that the said company, acting for Patterson, on April 14, 1893, agreed in writing, which agreement was filed as an exhibit with the petition, that until further notice it would pay the brick company for brick furnished to Patterson for sewers then being constructed by him for the city of Roanoke. The agreement reads as follows: "Roanoke, Va., April 14, 1893. Roanoke Brick Co. (Messrs. Adams Bros. & Payne) —Gentlemen: Until further notice, we will agree to pay you for brick furnished to Mr. W. F. Patterson for sewers now being built in Roanoke city, as the money therefor is drawn from the city, as per the accounts rendered monthly, and approved by the said Patterson, less the 15 per cent., until such time when we receive the 15 per cent., when the same will be paid to you. Yours, truly, Fidelity Loan and Trust Company, assignee of W. F. Patterson, by J. V. Jamison. Sec. and Treas."

Upon the faith of this agreement, the brick company furnished to Patterson the brick, for which its claim in this case was asserted, and it contends that by virtue thereof it acquired an equitable lien on the money now due from the city to Patterson.

There can be no doubt as to the doctrine that when, for a valuable consideration from the payee, an order is drawn upon a third person, and made payable out of a particular fund, then due or to become due from him to the drawer, and is delivered to the payee, it operates as an equitable assignment pro tanto of the fund, and constitutes a lien upon it in the hands of him who owes the debt or has possession of the fund out of which the order is made payable. 3 Pom. Eq. Jur. § 1280; Story, Eq. Jur. § 1044; Building Ass'n v. Coleman (Va.) 26 S. E. 843; Brooks v. Hatch, 6 Leigh, 534; Switzer v. Noffsinger, 82 Va. 521.

But a mere promise or agreement to pay a debt out of a designated fund, when received, does not give an equitable lien upon the fund, or operate as an equitable assignment of it Something more is necessary. To constitute an equitable assignment, there must be an assignment or transfer of the fund, or some definite portion of it, so that the person owing the debt or holding the fund on which the order is drawn can safely pay the order, and is compellable to do so, though forbidden by the drawer. 3 Pom. Eq. Jur. § 1280; 1 Jones, Liens (2d Ed.) §§ 48, 50, 52; Rodick v. Gandell, 1 De Gex, M. & G. 763; Clayton v. Fawcett's Adm'rs, 2 Leigh, 19; Eib v. Martin, 5 Leigh,...