hutton v. lockridge.

• Decision Date: 06 February 1886
• Citation: 27 W.Va. 428
• Court: West Virginia Supreme Court
• Parties: hutton v. lockridge.

27 W.Va. 428

hutton

v.lockridge.

Supreme Court of Appeals of West Virginia.

Submitted January 15, 1886.

Decided February 6, 1886.

*(Snyder, Judge, Absent.)

1. In a chancery suit brought to enforce the judgment-liens on a debtor's land, where a decree for the sale of the land is rendered, and an appeal and supersedeas to such decree is granted, the obligors in the appeal and supersedeas-bond are not responsible where the decree below is affirmed, and the lauds sell for a sum insufficient to pay the judgment-liens, for any portion of the rente and profits of such lands, while the cause was pending in the Appellate Court, or for any loss which the appellees may have sustained by reason of the receipt of such rents and profits by the debtor, while the cause was pending in the Appellate Court, instead of the sum being applied to the payment of such liens, (p. 434.)

2. But in such a case the circuit court may, to preserve the rents and profits in a proper case, appoint a receiver, notwithstanding the case is pending in the Supreme Court of Appeals upon & supersedeas. (p. 433.)

3. But no such receiver of real estate or of the rents and profits thereof in such ca&e or in any other case can be appointed, until reasonable notice of the application therefor has been given to the owner or tenant of the lands, (p. 434.)

-Counsel below.

4. From an order of a circuit court improperly appointing such a receiver of lands and thus requiring a change of its possession the owner of the lands so dispossessed of may appeal, though the principles of the ease be not decided, (p. 435.)

Dermis Dennis for appellant.

A. F. Mathews for appellees.

Statement by Green, Judge:

This was a creditors' suit brought in circuit court of Pocahontas county in September, 1877, to subject the real estate of James T. Lockridge to the payment of judgment-liens and liens by deed of trust on the whole or some portions of such real estate. The bill on its face showed, that there were a large number of creditors, who had liens on the whole or some portion ot this real estate; and it also showed that Lockridge had no personal estate, which could be subjected to the payment of these debts, executions, which had issued on sundry of these judgments against Lockridge, having been returned "No property found." During the progress of the cause it was twice referred to a commissioner to ascertain the amount and priority of these liens, and what lands were owned by Lockridge, on which these were liens; reports were made by the commissioner and sundry exceptions filed to them. On October 3, 1878, the court declining then to act on the exceptions to the first report re-committed the cause to the commissioner with instructions to take such competent testimony, as might be produced, touching the points raised by these exceptions, and to re-form his report accordingly; and at the same time the court decided, that this first report showed, that there were many liens against the lands of Lockridge, which were not denied or contradicted by him, and that his lands should be sequestered and rented out for these lien-creditors; and thereupon it decreed, that two commissioners named in this decree after giving the bond and security required by the decree, should rent out said lands for one year from March 1, 1879. Under this decree the commissioner of the court on April 28, 1879, made his report showing, that the judgment and deed of trust liens on the lands ot Lockridge, including interest and costs to April 29, 1879, amounted to $17,063.75. Lockridge filed exceptions to this report, not because any of these judgments, the auditing of which were excepted to, had been paid, but because for reasons assigned it was inequitable to enforce these liens against his land; but by the decree ot the court rendered in this cause and in two others heard with it on April 29, 1879, the court overruled all the exceptions and confirmed the report in all respects and decreed, that unless the defendant, Lockridge, or some one for him should within thirty days pay the debts audited in the report, the priorities of which were settled by the report and this decree, certain commissioners named after a specified advertisement should sell at a named place these lands in the bill and proceedings named then owned by James F. Lockridge and report their proceedings to the court, but before receiving any money under this decree these commissioners or the one acting were to execute bond with good security before the clerk of the court, in the penalty of. $30,000.00, conditioned according to law.

An appeal and supersedeas was allowed to this decree on September 8, 1879, and while this appeal was pending in this Court, on October 16, 1882, the circuit court of Pocahontas county rendered the following decree:

"This cause came on this day to be further heard upon the papers formerly read, and the rule awarded against the special commissioners Robert F. Dennis and Alexander F. Mathews, to show cause why they had not executed the decree of October term, 1878, and the answer of said special commissioners to said rule, and argument of counsel; and it appearing to the court that the real estate of said defendant Lockridge will not sell for enough to pay the undisputed indebtedness of said defendant Lockridge, and that said lands should be sequestered and rented out for the benefit of the creditors of said Lockridge, Robert F. Dennis and Alexander F. Mathews, special commissioners appointed for the purpose of renting said lands by the decree made in this cause at the October term, 1878, of this court, having failed to act, and asking to be relieved, it is therefore adjudged, ordered and decreed by the court that said commissioners be and are hereby relieved. And it is further adjudged, ordered and decreed that John Osborne, who is hereby appointed aspecial receiver for the purpose, shall, after advertising for four weeks in the Greenbrier Independent, a newspaper published in the town of Lewisburg, Greenbrier county, West Virginia, and by posting a copy of this order on the front door of the court house ot this county, proceed to rent out all the lands of the defendant Lockridge in the commissioners' report No. 2, in this cause mentioned and described, for one year from March 1, 1883, for so much to be paid cash in hand as may be necessary to pay the costs ot said renting, and as to the balance upon a credit of twelve months, and take from the rentee or rentees bonds, with approved personal security, for the deterred payment or payments, and report his proceedings under this decree to the next term of this court, but before acting under this decree, said special receiver shall execute and file with the clerk of this court a bond, with sufficient security, to be approved by said clerk, in the penalty ot $1,000.00 conditioned according to law. But this decree shall not affect in any way growing crops of wheat now seeded upon said lands, and the clerk ot this court is directed to issue writs of habere facias possessionem to put said rentor or renters in possession of said lands."

From this decree an appeal and supersedeas was granted December 9, 1882.

To the proper understanding of the merits of this decree a somewhat fuller statement of the facts appearing in the cause, which was pending in this Court, when the decree of October 16, 1882, was rendered by the circuit court of...