Hutton v. Lockridge
| Decision Date | 29 September 1883 |
| Citation | 22 W.Va. 159 |
| Parties | HUTTON et als. v. LOCKRIDGE et als. |
| Court | West Virginia Supreme Court |
Submitted Jan. 18, 1881.
SNYDER JUDGE, Absent.[a1]
1. In a suit brought by judgment-creditors against the judgment-debtor and other judgment and trust creditors, to obtain satisfaction of their several judgments by a sale of the lands owned by said debtor, and the cause has been properly referred to a commissioner to ascertain and report the several liens thereon, and their respective priorities and also to ascertain and report the lands owned by said debtor, chargeable therewith, and where such commissioner has made and returned such report and no error appears upon the face thereof, it will be presumed by the Court, that the character, amounts and priorities of the several liens, as well as the lands owned by the judgment-debtor chargeable therewith, are correctly set forth therein " except in so far only, as and as to such parts thereof, as may be objected to by proper exceptions taken thereto before the hearing" of the cause. (p. 176.)
2. The judgment debtor having been the owner of a large tract of land, charged with a lien of one thousand dollars in favor of his children payable at his death; and having at different times aliened the same to three different vendees, and to indemnify his second alienee against any loss by reason of said lien upon the portion of said land, having conveyed to a trustee another tract of land; and the commissioner to whom the cause was referred, having failed to report the amount of said lien, and whether the said three several parcels of said land are chargeable, ratably with said lien, or whether same will be first chargeable upon the parcel last aliened, or whether any part thereof will be chargeable on the land conveyed in the trust to indemnify said second alienee; and the court having thereupon decreed that the said land so conveyed in trust " " " be sold subject to the lien created thereon by said deed of trust. " HELD:
I. That the said lien of one thousand dollars is chargeable upon the parcels of land so aliened, in the inverse order of said alienations, and that the parcels last sold, are first liable.
II. That the court should have required the plaintiffs to amend their bill by making the children of said judgment-debtor who are entitled to the benefit of said lien, parties defendant thereto, and should have caused said commissioner to ascertain the value of the parcel last aliened, and whether the same will be sufficient to secure the payment of the whole of said lien, and if not what portion thereof will fall on the parcel conveyed to said second alienee and whether any, and if any, what part of the proceeds of the sale of said land so conveyed in trust to indemnify said second alienee ought to be retained for such indemnity.
III. That it was error in the said circuit court to decree that the said land so conveyed in trust, should be sold subject to the lien created thereon by said deed of trust without first ascertaining the amount of said lien chargeable on said several parcels, and fixing the priorities thereof.
3. The judgment-debtor having excepted to the commissioner's report, because it failed to set off the amount of a demand claimed by him against the estate of a decedent for the benefit of whose children and widow, one of said judgment-creditors had assigned a large judgment against him of one thousand three hundred and fifty-four dollars and twenty-one cents recovered against him to satisfy the indebtedness of said judgment-creditor to the estate of said decedent, and there being no evidence in the cause showing the amount or justice of his said demand against said decedent, or his right to have same set off against the said judgment against him; his said exception was properly overruled, and the said commissioner's report in regard thereto was properly confirmed.
4. But the court having overruled the said exception, and confirmed the said report in all things, decreed that the " said judgment of one thousand three hundred and fifty-four dollars and twenty-one cents shall be set off against the demand of said judgment-debtor against said decedent as is shown to be due from his estate, in the report of the commissioner reported at this term of the court in the chancery cause of said judgment-debtor against the administrator of said decedent, & c.," without anything in the record to show the amount or character of the demand, or that there was in fact any connection whatever between the matters involved in said causes, or that said last named cause was heard with, or even read in connection with the cause at bar. HELD:
That the court erred in setting off the said demand of said judgment-debtor, against the estate of said decedent, against the said judgment of one thousand three hundred and fifty-four dollars and twenty-one cents, recovered as aforesaid against him. (p. 178.)
5. The commissioner having reported a large debt of two thousand three hundred and thirty-eight dollars and ninety-six cents against the judgment-debtor, as a specified lien upon one of the tracts of land owned by him, created by a deed of trust thereon, which report was " in all things confirmed, " the court erred in declaring the same a general lien on all the lands owned by said debtor, and decreeing the same with all his other lands, to be sold to satisfy all of the liens reported by said commissioner in the order set forth in his said report whereas the proceeds of the sale of the said land, subject to said specific liens, after the prior liens thereon are satisfied must be applied to the satisfaction of such specific liens according to their respective priorities, before any part thereof can be applied to the satisfaction of subsequent judgment-liens thereon. (p. 178.)
The facts of the case are stated in the opinion of the Court.
In a suit by judgment creditors against a debtor owning land, and other judgment creditors, the report of a commissioner, therefor appointed as to the priority of the various liens, is conclusive save as to the parts properly excepted to before the hearing.
R. F. Dennis for appellant Lockridge.
A. C. Snyder for appellees.
J. C Hutton, A. C. Liggett, Amos Barlow, and Amos Barlow, Henry Barlow and George P. Moore, partners in business under the firm of " Barlow & Moore," plaintiffs, in September, 1877, filed their bill, and subsequently two amended bills in the circuit court of Pocahontas county, against James T. Lockridge, Lanty Lockridge, and a large number of other defendants, alleging in substances that they were judgment and trust-creditors of said James T. Lockridge and Lanty Lockridge, for large amounts, which are set forth in these said bills and exhibits and that many of the other defendants were also judgment and trust-creditors of said James T. Lockridge, many of whose debts are set forth in full, others simply by reference to what appeared to be unsatisfied judgments against him, and alleging that all of said debts were liens upon the lands owned by said James T. Lockridge and praying for a sale of said lands to satisfy said liens and for general relief. As to many of the debts, which were established in the progress of the cause, the character, amounts and priorities thereof only appear in the reports of the commissioner made therein. The description of the lands sought to be charged with said debts, and sold to satisfy the same, is still more meager,--the only allegation in the original bill being " that the defendant, James T. Lockridge, is the owner of a tract of four hundred and twenty acres of land, and several other tracts of land, all of which are described in deeds and certificates of survey, duly attested copies of which are herewith exhibited marked ‘ C,’ " which as found in the printed record, is only the copy of a deed from A. S. Bradshaw to said Lockridge for fifteen acres, The first amended bill, which was filed at April rules, 1878, alleges that Lanty Lockridge, sr., by deed dated January 24, 1857, and April 3, 1858, conveyed to James T. Lockridge a tract of land on Elk river in Pocahontas county containing about one thousand acres, and reserved a lien thereon for one thousand dollars in favor of the children of said James T. Lockridge by his wife then living, and payable at the time of his death; that James T. Lockridge had conveyed all of said " Elk" land as follows: the first parcel to one Wm. J. McLaughlin; afterwards, a second parcel to one Isaac Moore; and after both the foregoing deeds were recorded, he conveyed the residue to one Wm. D. Moore by deed dated May 26, 1876, and recorded November 10, 1876, and that many of the said judgments against said James T. Lockridge are liens on the " Elk lands," and that the lien of one thousand dollars in favor of the children of said James T. is primarily chargeable upon the parcel conveyed to Wm. D. Moore as that was the last aliened, and prays specially that the court will determine whether all of the said alienees of said James T. of said " Elk" land shall contribute ratably to the satisfaction of the lien of one thousand dollars in favor of said children, or whether said lien is primarily an incumbrance entirely limited to the land conveyed to William D. Moore to the extent of its value, and in case the other lands owned by said James T. be insufficient to satisfy all of said judgment-liens thereon to sell the same and apply the proceeds thereof, after providing for the lien of one thousand dollars, to the satisfaction of said judgment-liens binding the same, and for the same relief as prayed for in the original bill. It further appears from the record in this cause that James T. Lockridge, by deed dated January 25, 1877, conveyed the said tract of...
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