Jackson's Adm'r v. Hull
| Citation | 21 W.Va. 601 |
| Parties | JACKSON'S ADM'R v. HULL. |
| Decision Date | 28 April 1883 |
| Court | Supreme Court of West Virginia |
Submitted Apr. 14, 1883.
1. Since the disuse of special replications in equity practice if a bill in equity shows on its face that the relief it prays for is barred by the lapse of time, advantage may be taken of such bar by demurrer as well as by plea. (p. 610.)
2. When a suit is brought by a lien-creditor against his debtor to subject the lands of the latter to the payment of his debt and during the pendency of such suit another lien-creditor of such debtor, by leave of the court, files his petition in said suit and is made a party thereto, and process is ordered against the defendant to answer such petition, which is not issued at once but is subsequently issued and duly served on the defendant. Held:
That in such case the statute of limitations ceases to run against the debt of such petitioner at the time he files his petition and not at the time, when the process to answer it is served on the defendant. (p. 611.)
3. The eighth, ninth and eleventh points in the syllabus in Neely v. Jones, 16 W.Va. 626, and the second point in the syllabus in Norris, Caldwell & Co. v Bean, 17 Id. 655, approved and applied. (p 614.)
Appeal from and supersedeas to a decree of the circuit court of the county of Wood, rendered on 8th day of April 1880, in a cause in said court then pending, wherein Henry J. Jackson's administrator was plaintiff, and R. M. T. Hull was defendant, allowed upon the petition of said Hull.
Hon. James M. Jackson, judge of the fifth judicial circuit, renderd the decree appealed from.
SNYDER, JUDGE, furnishes the following statement of the case:
Lydia Jackson, administratrix of Henry J. Jackson, deceased, filed her bill in the clerk's office of the circuit court of Wood county, at April rules, 1875, against R. M. F. Hull to subject the real estate of the defendant to the payment of two judgments recovered by her against the defendant; that by an order entered, on the 10th January, 1876, the cause was referred to Commissioner Powell with directions to him to ascertain and report what real estate the defendant owned at the date of the plaintiff's judgments, what portion of said real estate he had since conveyed, when and to whom conveyed, the liens thereon with their amounts, character and priorities, and any other matters deemed pertinent by him or required by either party, and directing said commissioner, before executing said order to give notice to the defendant.
The said commissioner made and filed his report which was, by decree of January 8, 1877, confirmed without exception and the real estate of the defendant, therein described, decreed to be sold to pay the plaintiff's judgments and her costs. Subsequently, W. B. Caswell and S. M. Peterson, by leave of the court, filed their joint petition in said suit, in which they allege, that at the April term, 1867, of the circuit court of Wood county they obtained against the defendant, Hull, and one E. H. Hensley a decree for one thousand two hundred and seventy-one dollars, with interest on six hundred and thirty-five dollars and fifty cents part thereof from April 15, 1866, on six hundred and thirty-five dollars and fifty cents, the residue thereof, from July 16, 1866, till paid and fifteen dollars and ninety-eight cents costs, and that said decree had been duly docketed upon the judgment-lien docket of said county on the 9th day of February, 1876, that no part of said decree had been paid, and that the same operated as a lien on the real estate of the defendant in the plaintiff's bill mentioned. The prayer is, that the petitioners may be made parties plaintiffs to said suit, that the said report of Commissioner Powell may be recommitted and their said debt reported therein and paid according to its priority, & c.
The plaintiff having departed this life, the cause was, by an order of the court, revived in the name of B. P. Marshall as administrator de bonis non of the estate of said Henry J. Jackson and, by a decree entered on the 27th of September, 1877, after reciting therein that the court is of opinion that the petitioners, W. B. Caswell and S. M. Peterson, are entitled to the relief prayed for in their petition, the said report of Commissioner Powell was recommitted to him with instructions to amend the same by reporting the said debt of petitioners and all other liens upon the real estate of the defendant with their amounts and priorities, and, also, the real estate owned by the defendant at the dates of such respective liens, and any other pertinent matter, and directing the said commissioner before executing said order to give notice to the parties.
The said commissioner made his report, dated January 31, 1878, and filed the same, from which it appears, that the following debts were liens on said real estate:
1st. The two judgments in favor of the plaintiff, rendered July 7, 1866, and docketed January 8, 1869;
2d. A trust-deed to secure a debt due H. W. Buckley, recorded September 2, 1869;
3d. A trust-deed to secure a debt to the Parkersburg Mill Company, recorded July 20, 1874;
4th. The decree in favor of petitioners, W. B. Caswell and S. M. Peterson, docketed February 17, 1876;
5th. Judgments in favor of:
1. Braiden, Ruth & Co., rendered at September term, 1867;
2. A. B. Clark & Bro., rendered October 31, 1870;
3. M. P. Amiss, rendered at the December term, 1875;
4. J. H. Haun & Co., rendered at the December term, 1876; and
5. Jenkins, Jackson & Co., rendered at December term, 1876.
The said report, also, contains a statement and description of all the real estate owned by the defendant at the time or since the date of the plaintiff's judgments, also the alienations of said real estate made by the defendant, the date of each and the names of the persons to whom alienated--the whole thereof having been conveyed by the defendant prior to the date of the report. The facts in relation to said real estate and the alienations thereof by the defendant sufficiently appear from the recitals in the decree of April 8, 1880, hereinafter given, and it is therefore, deemed unnecessary to state them here.
The defendant excepted to said report:
First --Because, it is claimed, that the facts show that the debt of the petitioners, W. B. Caswell and S. M. Peterson, on which they obtained their decree of April 20, 1867, was paid prior to the date of said decree, and that said decree was, subsequent to said payment, obtained by fraud; and because the right to enforce the lien of said decree; even if it were otherwise valid, was barred by the stateute of limitations at the time their petition was filed in this cause; and therefore, the commissioner has improperly reported said decree as a lien on the lands in the report mentioned or any part thereof:
Second --Because, the commissioner reports the trust-debt of H. W. Buckley as a lien on said real estate, the said debt having been satisfied by the acceptance of other security; and
Third --Because the said report allows the judgments of Braiden, Ruth & Co., A. B. Clark & Bro., M. P. Amiss, J. H. Haun & Co. and Jenkins, Jackson & Co., as liens on the purchase-money due from T. C. and G. S. Hull for land conveyed to them by the defendant.
By decree of March 5, 1880, on the motion of defendant and by consent of the plaintiff the aforesaid decree of sale of January 8, 1877, was set aside, and the defendant demurred to and answered, respectively, the plaintiff's bill and the petition of W. B. Caswell and S. M. Peterson, to which respective answers the plaintiff and said petitioners replied generally. No question being raised in this Court in respect to the matters set out in defendant's answer to the plaintiff's bill, any statement of said answer is omitted. In his answer to the said petition the defendant avers, that the only foundation for the alleged decree, in said petition mentioned, was two notes for six hundred and thirty-five dollars and fifty cents each, given by him and E. H. Hensley as partners to said W. B. Caswell, S. M. Peterson and E. H. Hensley as partners for property purchased by respondent and said Hensley from said last mentioned firm of which the said Hensley was also a partner and as such owning one third of the property so purchased and for which said notes were given; that said notes being the property of said partnership, the said Hensley, as a partner thereof, was entitled to one third of same, and accordingly, respondent, prior to the institution of the suit in which said pretended decree was obtained, paid said one third of the amount of said notes to said Hensley, and that, after the institution of said suit and before the hearing thereof, he had a settlement with said W. B. Caswell in which the residue of said two notes was settled and paid, that said Caswell then and there agreed to dismiss said suit, and respondent, relying upon said agreement, gave no attention to said suit, believing the same had been dismissed, and he never knew or suspected otherwise until the said petition was filed in this suit; that said debt is unjust and the said decree was procured by fraud and misrepresentation; that no execution had ever been sued out on said decree or demand made for its payment prior to the filing of said petition, and that, therefore, the right to enforce the payment thereof is barred by the statute of limitations.
Depositions were taken by said petitioners and the defend ant to sustain the averments respectively of said petition and answer. And on the 8th day of April, 1880, the following decree was entered, which I give in full for the reason that it contains the results of the report of Commissioner Powell and other facts necessary to an intelligent understanding of the...
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