Keck v. Allender, et al.
| Decision Date | 03 December 1892 |
| Citation | 37 W.Va. 201 |
| Parties | Keck v, Allender, et al. |
| Court | West Virginia Supreme Court |
Where there are various liens on lands of a judgment-debtor, it is error to decree a sale of his lands to satisfy the same without first ascertaining the amount of said liens and their priorities; for the reason that to decree such sale before ascertaining the amount
of the several liens and their respective priorities has a tendency to sacrifice the property by discouriging the creditors from bidding as they probably would, if their right to satisfaction of their debts and the order in which they were to be paid out of the property, had been previously ascertained.
A report of a commissioner, unless excepted to in time, will be presumed to be correct, not only as to the principles of the account but as to the evidence also.
A party to a suit who has a lien against land which is sought to be subjected, who has had notice of the time and place of ascertaining the liens against the same and the amounts and priorities thereof, who fails to attend before said commissioner at the time of settling said account, or to except to the same after it is stated, after the report of the commissioner has been confirmed and a sale decreed, reported, and confirmed, and the proceeds directed to be distributed in accordance with the priorities so ascertained, will not be allowed to have the order of said priorities changed on petition in the nature of a bill of review, unless the error complained of in ascertaining said priorities appears on the face of the decree, or he sufficiently accounts for his laches.
Where defendants have had ample time to make a defence to a suit, and have not done so, and show no reason why they have not before made such defence, they can not be permitted to come in at the last moment and raise such defence, and have the cause sent back to a commissioner or otherwise delayed. The answer raising such defence may be filed, although under such circumstances it can not delay the hearing of the cause.
0. Johnson, for appellees:
I. Pickenpaugh and Reed should have been placed second in priority. Code, c. 75, s. 3; Code, e. 74, s. 5.
II. They did not lose this right by laches. Code, c. 133, s. 5;
III. The bill of review was properly fded for errors; all the necessary parties answered; and the decree was proper. 2 Rob.' (old) Pr. 415; 3 Paige 368; 19 W. Va. 167.
IV. The notice gave sufficient ground for correcting the errors on motion. The answers were filed too late. 6 W. Va. 465.
1. The decree was on bill taken for confessed 25 W. Ya. 133; 24 W. Ya. 586; 20 W. Va. 343.
2. Proper parties were made to the notice. Code, c.
134, s. 5.
3. The errors appeared on the face of the Commission-
er's report. 25 W. Va. 244.
4. If not, they did so appear, when read in connection
with the bill, the allegations of which were not controverted. 25 W. Va. 563.
V. There is nothing in the objection that P. R. did not have
the errors corrected before confirmation of sale. 25 W. Va. 109.
R. L. Berkshire counsel for appellees cited Code (1887) c. 75, s. 2; 26 W. Va. 563; 24 W. Va. 244.
A. F. Haymond, for appellant cited 14 W. Va. 581; 19 W. Va. 438; 16 W. Va 791, p't 12 Syl.; 21 W. Va. 262; 10 W. Va. 645; 8 W. Va. 218; Id. 174; 17 Gratt. 85; 12 W. Va. 213; 2 II. & M. 422; 14 W. Va. 559; 13 W. Va. 440, 461; 6 Rand. 641; 2 Rob. (old) Pr. 416; Sto. Eq. PI. § 307; 6 W. Va. 465; 20 W. Va. 445, 446; 3 Br. Ch'y Rep. 640; 17 Gratt. 384; 18 Gratt. 364, p't 9, Syl.; Code, c. 134, s. 5.
This was a suit in equity brought by Philip II. Keck, trustee, against Elisha C. Allender and others, in the Circuit Court of Monongalia county. The plaintiff in his bill alleges that lie is trustee in a certain deed of trust executed by the defendant Elisha C. Allender and Avife to him, bearing date the 3rd day of September, 1886, aud duly recorded in the clerk's office of the County Court of said county, conveying certain real and personal estate therein mentioned to such trustee to secure the payment of sundry debts therein mentioned, and to indemnify and save harmless certain sureties of the grantor, Allender, therein also named, with the priorities therein set forth, a copy of which trust-deed was exhibited; the execution of which deed of trust the plaintiff accepted; and the debts thereby so secured not having been paid before the 1st day of January, 1887, nor yet, the plaintiff, as.such trustee, was required to proceed to make sale of said property so conveyed according to the requirements of said trust-deed.
But the plaintiff states, that, when he came to examine the matter with the view of giving the notice of sale as required by law, he found, that it would be manifest error to do so, until the legal title was got in for the realty so conveyed by the trust, and until the amounts and priorities of lien-debts against said property was first ascertained; that it was found that as early as the 10th day of October, 1873, the said Elisha C. Allender and his then wife had executed a deed of trust on said realty property, except the mill, to J. M. Hagans, trustee, to secure the Morgantown Building Association in the sum of five hundred dollars, which trust-deed was duly recorded, a copy of which was also exhibited, and several" other copies of deeds of trust executed by said Allender and wife were also exhibited.
Plaintiff alleges that he has no adequate means of determining the amount of said trust-liens or any of them, nor the precise or accurate priorities of many of said liens, without the aid of a court of equity; that besides said trust-liens he found on the mechanics' lien docket three several unreleased mechanics' liens on said real estate one in favor of William H. Houston of seventy five dollars and eighty three cents, recorded the 6th of October, 1883, a copy of which was exhibited; another in favor of James P. Berkshire for one hundred and thirty eight dollars and eighty two cents, recorded on the 2nd day of October, 1883, a copy of which was also exhibited; also another in favor of Thornton Pickenpaugh for three hundred and sixty one dollars and fifty six cents, recorded on the 29th day September, 1883, a copy of which was also exhibited. Plaintiff further alleges that, as he was informed, some payments had been made on these liens, but to what extent lie was not informed, and, as he was informed, said James P. Berkshire had assigned his entire claim and lien to said Pickenpaugh, who was now the owner of the same; that there were several judgments entered upon the judgmentlien docket of said county, against said Allender, constituting liens upon said real estate so far as the same remain unsatisfied, and the names of said judgment-creditors and the amounts and dates of their judgments are set forth and copies thereof exhibited.
The plaintiff prayed that said cause might be referred to a commissioner to ascertain and report the several liens against the said property and their several priorities; that a receiver be appointed to take charge of and operate a mill owned by said Allender; and that a sale of said property be decreed, and the proceeds distributed according to the rights of the parties.
The defendants accepted service of process, and agreed that the cause might be placed on the docket at the February term, 1887, and by consent a decree of reference was ordered to a commissioner to ascertain and report the liens and their priorities in the bill mentioned, or existing against the property in the bill mentioned; and by like consent it was agreed that a receiver be appointed by said court to take charge of said mill property, and run or use the same to the best advantage of said creditors, until a sale of said property should be made, or until the further order of the court.
On the 18th day of June, 1887, a decree was rendered in said cause, at which, time the same was heard on the papers theretofore read therein, and upon order made therein at the February term of said court, and. upon the report of Commissioner M. M. Dent, made in pursuance of said order, and filed June 13, 1887; and said report appearing to be regular on its face, and there being no exceptions taken or filed to said report, the same was thereby approved and confirmed.
On consideration whereof it was adjudged, ordered and decreed that the several claims and priorities thereof stand and remain as in said report stated, setting forth the liens and priorities in accordance with the findings of said commissioner's report, which several sums of money, with their respective interests, were thereby decreed and ordered to be paid out of the proceeds of said real and personal estate in the order of their priority, and to the persons thereinbefore stated, and so far as said property or the proceeds thereof should prove sufficient; providing that if any sums of money, or any material part or parts of any such sums, had been paid, or should be thereafter paid, by persons occupying the relation of surety to said Allender, in all such cases such surety or sureties should be substituted to the rights of the creditors to whom or for whose benefit such surety made such payment, and be entitled to receive of the proceeds of said property, real or personal, to the same extent as such creditors would have done but for such payment; and special commissioners therein appointed were directed to advertise and sell said property upon the terms therein prescribed. "
On the 13th day of October, 1887, said special commissioners so appointed having returned their report of the sale of said property, and there being no exceptions thereto, the same was confirmed; audit appearing from said report that the sum of five thousand three hundred and five dollars was realized from the sale of said real estate, and...
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