Hines v. Fulton.

• Citation: 104 W.Va. 561
• Decision Date: 29 November 1927
• Docket Number: (No. 5957)
• Parties: Cary C. Hines, Admir. v. Elwood D. Fulton et al.
• Court: Supreme Court of West Virginia

104 W.Va. 561

Cary C. Hines, Admir.

v.Elwood D. Fulton et al.

(No. 5957)

Supreme Court of Appeals of West Virginia.

Submitted November 15, 1927.

Decided November 29, 1927.

1. Judgment Assignor of Judgment or Decree Deprives Himself of All Interest and Control, and Transfers to Assignee Ownership of Judgment and All Remedies Thereunder.

The assignor of a judgment or decree by the assignment deprives himself of all interest in and control over it, and transfers to the assignee the ownership of the judgment and all remedies thereunder. (p. 570.)

(Judgments, 34 C. J. §S 986, 990.)

2. Same Judgment Debtor, After Knowledge of Assignment of Judgment, Cannot Compromise With Assignor Alone.

A judgment debtor after knowledge of the assignment of the judgment, cannot compromise the debt with the assignor alone, and thus defeat the claim of the assignee. (p. 570.)

(Judgments, 34 c. J. § 995.)

3. Same Assignment of Judgment or Decree Carries With it Right to Lien Created by Attachments With Right to Enforce Them Whether Mentioned or Not.

The assignment of a judgment or decree carries with it also the right to the lien created by any and all attachments sued out and levied upon all lands or other property, with the right also to enforce such attachments whether they be specifically mentioned in the instrument of writing or not. (p. 570.)

(Judgments, 34 c. J. § 999.)

4. Attachment Attachment, When Levied, and Especially After Being Carried Into Decree, Constitutes Lien Good Against All Persons With Notice; Proceeding by Attachment Partakes Somewhat Both of Proceeding in Rem and One in Personam.

Such an attachment when levied on the property, and particularly after it has been carried into a decree, constitutes a lien upon the property attached, of which all persons dealing with the property with notiee are chargeable. Such a proceeding by attachment partakes somewhat in its nature both of a proceeding in rem and of one in personam. (p. 571.)

(Attachment, fi c. J. §§ 7, 520.)

5. Judgment Collusive Entry of Satisfaction of Judgment or Decree After Assignment Will Be Set Aside at Suit of Assignee and Suit Prosecuted in His Name For His Benefit, Regardless of Whether Judgment or Decree is in Rem, in Personam, or Both.

An attempted settlement between the debtor and creditor of such an assigned claim, after the assignment, without the knowledge or consent of the assignee, and the payment of the amount agreed upon to the assignor, constitutes actual fraud upon the assignee and his rights, and the collusive procurement of a decree or entry of satisfaction upon the record of the judgment or decree will at the suit of the assignee be set aside, and the suit prosecuted in the name of the assignee for his benefit whether the judgment or decree be in rem or in personam or both. (p. 571.)

(Judgments, 34 c. J. § 997.)

6. Fraudulent Conveyances Suit to Set Aside Fraudulent Conveyance, Transfer, or Assignment and Charge Property With Debt Creates Equitable Lien on Property.

In this State a suit to set aside a fraudulent conveyance, transfer or assignment of property and to charge it with a debt, creates an equitable lien upon the property so proceeded against in favor of the plaintiff. (p. 574.)

(Fraudulent Conveyances, 27 C J. § 828.)

7. Assignments When All Parties in Interest Are Before Court, and Their Bights Can Be Settled, Rule Against Partial Assignments Does Not Apply.

The rule of the common law against partial assignments of claims for the protection of debtors against the splitting of claims against him is without substantial application when all parties in interest are before the court, and their rights can all be there settled. (p. 575.)

(Assignments, 5 C. J. § (JO.)

8. Judgment After Notice to Debtor of Transfer of Judgment or Decree Against Him, Equity Will Protect Assignee's Rights; Judgment Creditor's Entry of Satisfaction After Notice of Assignment Will in Equity Be Set Aside at Suit of Assignee; After Setting Aside Entry of Satisfaction of Judgment at Suit of Assignee Court May Order Sirit to Proceed for Assignee's Benefit.

After notice to the debtor of a bona fide transfer of a judgment or decree against him, the rights of the assignee will be protected in equity from any and all acts of the original parties, and the entry of satisfaction on the record by the judgment creditor will at the suit of the assignee be set aside as fraudulent, and the court may order the suit proceeded with for the benefit of the assignee. (p. 575.)

(Judgments, 34 C. J. §§ 995, 1137.)

9. Same In Assignee's Suit to Set Aside Collusive Entry of Satisfaction of Decree in Rem Against Attached Property, Amount to Which He is Entitled May Be Corrected by Record of Original Decree and Be Decreed Accordingly.

Where the claim of such assignor, carried into decree in rem against the property attached after assignment, has been thereafter fraudulently compromised between debtor and creditor for a sum greatly below the amount decreed in rem against the property, and the sum agreed upon fraudulently paid over to the assignor, the amount to which the assignee is entitled may in his suit to set aside the collusive decree be corrected by the record of the original decree in the cause, and decreed accordingly, (p. 575). (Judgments, 34 C. J. $ 1137.

(NotE: Parenthetical references by Editors, C. J. Cyc. Not part of Syllabi.)

Appeal from Circuit Court, Braxton County.

Action by Cary C. Hines, administrator of William Cren-nell, deceased, against Elwood D. Fulton and others. From a decree for plaintiff for less than he asked, he appeals, and defendants, the Baltimore & Ohio Railway Company and the Gauley Company cross-assign error.

Modified and affirmed.

W. E. R. Byrne, Thomas Watson and H. L. Robinson, for appellant,

Haymond & Fox and Bryan, Williams & Cave, for appellees, Baltimore & O. R, Co. and Gauley Co.

Miller, Judge:

This case was formerly before us upon an appeal by the plaintiff from the decree below sustaining the defendant's demurrer to the original and amended and supplemental bill, reported in 92 W. Va. 204, and on which appeal we reversed the decree below, overruled the demurrers and remanded the cause for further proceedings.

The present appeal was also allowed upon the petition of the plaintiff from the final decree of the circuit court on July 21, 1926, which brought the case on to be heard on the plaintiff's bill and amended and supplemental bill; the answer of The Baltimore & Ohio Railroad Company and Gauley Company, corporations; the plaintiff's general replication thereto; the joint and several answers of John T. Davis, Arthur Lee, Davis Elkins, C. M. Henley and Davis Trust Company, executors of the last will and testament of Henry G. Davis, deceased; Davis Elkins, Stephen B. Elkins, Jr., and Davis Trust Company, a corporation, executors of the last will and testament of Stephen B. Elkins, deceased; plaintiff's general replication thereto; upon the order of publication duly published and posted as to defendants Elwood D. Fulton, George J. Gould, William E. Guy, Joseph Ramsey, Jr., J. T. Blair, Union Trust Company of Pittsburgh, a corporation, St. Louis Union Trust Company, a corporation, Pittsburgh & Lake Erie Railroad Company, a corporation, and Pennsylvania Company, a corporation; upon exhibits and depositions filed; the mandate of the Supreme Court of Appeals of West Virginia herein; upon former orders and decrees herein; and upon argument of counsel.

And whereon it was found that on the 2nd day of April, 1927, the plaintiff's intestate, William Crennell, Jr., bad obtained a decree in the court of common pleas of Fayette county, Pennsylvania, against the defendant Elwood D. Fulton for the sum of $142,819.55, as of May 1, 1916, which was affirmed by the Supreme Court of Pennsylvania on July 31, 1918; and wherein also it was further found and decreed that on December 2, 1908, in a suit pending in the circuit court of Braxton county in which the said Fulton was plaintiff and Joseph Ramsey and others were defendants, begun by attachments levied upon said lands of the said defendants therein, obtained a decree in rem for the sum of $367,266.18, with interest from date and costs, and that thereafter on February 18, 1910, the said Fulton, plaintiff in said suit, had executed, and delivered to said William Crennell the paper which is the basis of the present suit whereby he assigned the said Crennell so much of the moneys claimed by him in said suit against Joseph Ramsey and others as might be sufficient to satisfy any decree that might be pronounced in his favor in either of the two suits mentioned therein, namely, the suit in the court of common pleas of Fayette county, Pennsylvania, or in his suit in the circuit court of Braxton county founded on the same cause of action, in which Crennell was plaintiff and Fulton was defendant; and thereby authorized and, directed the application of any money that might be recovered by him or to which he was entitled in the said suit against Joseph Ramsey and others toward the satisfaction in whole or in part of any decree which might be obtained by the said Crennell; notice of winch assignment, it was further decreed, had been given to the other defendants in said suit and to the owners of the land bound by the attachments levied thereon; and further finding and decreeing that the said Fulton without the knowledge of the said Crennell had made a settlement with the Little Kanawha Syndicate, the owners of the land subject to the lien of said attachments, by which Fulton had agreed to dismiss his said suit against Ramsey and others and to release the lien of said attachments for the sum of $122,500.00, of which sum $85,000.00 was paid to the said Fulton and $37,500.00 to his attorney, W. E. Haymond, and that on the 24th day of June, 1912, at a special term of said court without notice to the said Crennell and without his knowledge, a decree was entered dismissing said suit of Fulton against Ramsey and others,...