Lay v. Phillips

• Decision Date: 12 February 1935
• Docket Number: No. 8030.,8030.
• Parties: LAY et al. v. PHILLIPS et al.
• Court: West Virginia Supreme Court

178 S.E. 523

LAY et al.

v.PHILLIPS et al.

No. 8030.

Supreme Court of Appeals of West Virginia.

Feb. 12, 1935.

Syllabus by the Court.

1. When a court of equity takes jurisdiction of a cause for one purpose, it will ordinarily dispose of the questions involved to avoid a multiplicity of suits.

2. An appellate court cannot consider the evidence upon which the report of a commissioner in chancery, not excepted to, is predicated.

3. The allowance and apportionment of costs are ordinarily in the discretion of the trial chancellor.

Appeal from Circuit Court, Fayette County.

Suit by R. M. Lay and another against Robert Phillips, Nancy Phillips, and others. From a decree for plaintiffs, named defendants appeal.

Affirmed.

Carl C. Sanders and Clarence W. Meadows, both of Beckley, for appellants.

Dillon, Mahan & White, of Fayetteville, for appellees.

LITZ, President

Mary King died June 20, 1930, seized and possessed of one-half undivided interest in and to lots 14, 15, 21, 22, 23, and 24 in section 4 of Sherwood Heights addition to the town of Mount Hope, Fayette county, W. Va.; the remaining interest being owned by her husband, Morris King. She willed him her estate. October 20, 1930, Morris King, in consideration of $5 paid, conveyed to Nancy Phillips Nos. 21, 22, 23, and 24 of said lots, and four days later he conveyed to her lots 14 and 15, in consideration of $5, and the assumption by her of a mortgage debt against the two lots in favor of Mount Hope Building & Loan Association. By deed dated December 9, 1930, Nancy Phillips and Robert Phillips, her husband, in consideration of $100 and "other valuable considerations, " conveyed the six lots to R. M. Lay, with covenants of general warranty of title. By deed of like date, R. M. Lay and Myrtle Lay, his wife, conveyed the property to G. C. Trail, trustee, in trust to secure the payment of a negotiable promissory note, evidencing the deferred purchase price, executed by the Lays and payable to the Phillipses, at the Bank of Raleigh, Beckley, W. Va., four months from date, in the sum of $5,900; the deed further providing that the note shall be paid in monthly installments of $100 each, and that in default of any payment, the residue shall become due and payable. The trustee, having advertised the property for sale upon default of the makers to pay the note, in accordance with the terms of the trust deed, this suit was instituted January 6, 1932, by R. M. Lay and Myrtle Lay against Nancy Phillips, Robert Phillips, G. C. Trail, trustee, Morris King, and the creditors of Mary King, deceased, to enjoin the sale, ascertain the liabilities against the property, and for general relief. Upon the filing of the answer of defendants Nancy and Robert Phillips, the cause was referred to a commissioner to ascertain and report, inter alia, the liabilities and respective priorities, against the property.

The commissioner reported that Nancy Phillips is the equitable owner of the property under a contract between her and the Lays by which they agreed to reconvey to her. He further reported as liens against the interest formerly owned by Mary King, in addition to claims admittedly assumed by Nancy Phillips, debts of Mary King, as follows: $302.31 in favor of Sandstone Lumber Company and $63.71 in favor of W. P. Broyles. An order was entered April 28, 1934, confirming the report and directing sale of the property to satisfy the liens and costs.

Appellants, Nancy and Robert Phillips, contend: (1) That the...