Laidley v. Hinchman

• Citation: 3 W.Va. 423
• Parties: Albert Laidley v. Elizabeth Hinchman.
• Decision Date: 31 January 1869
• Court: West Virginia Supreme Court

3 W.Va. 423

Albert Laidley

v.Elizabeth Hinchman.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. The trust creditors in interest should be made parties to a bill by a judgment creditor to enforcehis lien against the subject of the trust.

2. A judgment creditor has a right to come into a court of equity to enforce his judgment lien against lands conveyed in a deed of trust prior to the obtaining of the judgment, subject to the debts secured by the trust; and after the debts secured by the trust fall due and no sale is made thereunder, the court will interfere for the benefit of judgment liens younger than the trust/and will direct a sale of the land, and not the equity of redemption alone, to satisfy the debts of both classes of creditors.

3. The debts of both trust and judgment creditors ought to be ascertained, and the property sold, if the rents and profits will not satisfy the liens in five years; and a reference, if it does not appear in the papers, ought to be had to determine this latter question.

Elizabeth Hinchman, curatrix, &c, having obtained a judgment against Albert Laidley in the circuit court of Cabell county, filed a bill in August, 1865, to subject the real estate of the defendant to the payment of the judgment lien. Want of personalty to satisfy the lien was alleged in the bill, but it was not alleged that the rents and profits would not pay oft* the lieu in five years. The bill further alleged a trust deed to secure one Hite in a sum due him, and also to indemnify him as Laidley's security to L. B. Lawson for the sum of 1, 000 dollars. The trustees in the deed were John Laidley, Sr., and H. J. Samuels, the former being dead his executor, John Laidley, Jr., was made a party defendant, as was also Hite, but Samuels and Lawson were not made parties to the bill.

Hite answered that his debt had not been paid, and that he had not paid any part of the Lawson debt. The defen dant, Albert Laidley, answered, among other things not necessary to be mentioned here, that the rents and profits of the real estate sought to be sold would pay oft" the debt in five years. The court decreed a sale of the lands on the usual conditions. No reference was had to ascertain the value of rents and profits. The defendant, Albert Laidley appealed to this court alleging the following errors:

" 1. The creditor Lawson should have been made a party.

"2. The amount due on Lawson's debt should have been ascertained, to measure the trust lien of indemnity to Hite on that account.

" 3. The amount of Hite's trust debt should have been ascertained, that bidders might know how to bid for property sold, subject to said incumbrances.

"4. The sale should have been of the property absolutely, free from all incumbrances, and the proceeds applied by the court to pay the debts due to the parties before the court, and thus made...