Linn v. Patton

• Decision Date: 28 April 1877
• Parties: Linn v. Patton, Trustee, et al (Absent, Johnson, Judge.)
• Court: West Virginia Supreme Court

10 W.Va. 187

Linn

v.Patton, Trustee, et al

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

1. A bill having been filed to foreclose a mortgage executed by

husband and wife, but which only conveyed personal prop--erty of the husband and his interest in a certain tract of land, the court ought not to permit an amendment of the bill seeking to charge the debts secured by such mortgage, on certain other real estate belonging to the wife as her sole and separate property, as such amendment would make the bill multiferous.

2. The certificate of an officer to the acknowledgment of a deed

which omits to state that the wife of the grantor "did not wish to retract it," is defective, and the deed inoperative as to the wife.

3. A decree providing that if the defendant does not, in a given

time, pay the plaintiff a certain sum, that certain property, real and personal, of the defendant, on which the plaintiff has a specific lien, shall be sold, is not a judgment which creates a lien on other real estate of the defendant.

4. A bill being filed to foreclose a mortgage, creditors of the

grantor obtaining specific liens on the property conveyed by the mortgage, after the institution of the suit, need not, and ought not, to be made parties to the cause.

5. An answer being filed at the time a decree is about to be en-

tered to sell defendant's land to pay plaintiff's debt, and a debt which is a prior lien, setting up in a vague manner that the defendant has another suit pending in which he expected to get a decree against the owner of this debt, which is a prior lien, and which decree, when obtained, could uot be made except by its being allowed as an offset, which allegations are denied and sustained by no proof, the court ought not to delay entering the decree for sale till the other cause is ready for hearing, so that the two causes might be heard together.

This was an appeal with supersedeas, from a decree of the circuit court of Kanawha county, rendered on the 13th day of June, 1874, in a cause in chancery then pending in said court, wherein J. H. Linn was plaintiff and Oliver A. Patton, trustee, and others, were defendants.

The appeal was granted upon the petition of Oliver A. Patton, trustee, and others.

A sufficient statement of the case is given by Green, President, in his opinion.

The Hon. Joseph Smith, Judge of tho seventh judicial circuit, rendered the decree complained of.

Samuel A. Miller and James M. Laidley, for appellants.

H. C. Me Whorter and Mollohau & Nash, for appellees.

Green, President:

On the 20th day of April, 1867, the widow and devisees of William Tompkins, deceased, by deed of that date, partitioned among themselves the real estate of which he died seized. By this deed four tracts of land in West Virginia, one of them being in Fayette county, were conveyed to R. Ellen Patton, then R. Ellen Tompkins, one of said devisees. In the same deed, and after such conveyance to her, she, the said R. Ellen, conveyed the same lands to N. Fitzhugh upon certain trust, and it was recited that this division of the real estate of William Tompkins was made among his devisees excluding Charles C.Tompkins, who had sold and conveyed his entire interest for $25,000, to the other devisees, and that in part payment of the said sum the purchasers had executed their note to him for $11,335.13, and that each of said parties, including said R. Ellen, was bound for one seventh of this sum respectively, and it was agreed that this one-seventh of said sum should remain and be a lien upon each of the respective shares or portions including that of the said R. Ellen, thereby conveyed, until said debt was fully paid off and discharged. The trusts upon which the said R. Ellen Patton, then R. Ellen Tompkins, conveyed the said four tracts of land to N. Fitzhugh were that she should receive the rents, issues and profits during her natural life; that in the event of her marriage, the trust should continue during the marriage; that if she should die, leaving issue, the trust should continue for the benefit of such issue, until they had arrived at the age of twenty-one years, and then pass to such issue, discharged from the trust.

Provision was also made for the sale of the property, and the reinvestment of the proceeds in other property upon the same trusts, by application to some court of record in Kanawha county.

R. Ellen Tompkins, after the execution of this deed, intermarried with the defendant Oliver A. Patton, who was thereafter substituted as a trustee in said deed in room of Fitzhugh, by order of Kanawha circuit court.

On the 7th January, 1869, the said Oliver A. Patton, as such trustee, and as the husband of the said R. Ellen, and said R. Ellen, executed to pal in tiff Linn a mortgage on certain personal property and upon the tract of land above referred to in Fayette, to secure to said Linn the payment of $1,075, evidenced by note then just due, given for moneys paid as securities of the parties of the first part by said Linn, and also to indemnify him in the further sum of $1,050, for any liability he might incur by becoming bound as security of the parties of the first part for the performance of the orders and decrees of the Louisville chancery court in the suit of B. B. Mason, against them then pending. This mortgage was duly acknowledged by Oliver A. Patton, trustee, and also individually, and it was acknowledged by R. Ellen Patton. But the clerk who took her acknowledgment of this deed entirely omited to state in the certificate that she did not wish to retract it. It was put on the record book, in Louisville, where the personal property then was, and shortly thereafter in Kanawha county, West Virginia, where the grantors removed with said personal property. In August, 1869, the plaintiff, Linn, filed his bill in Kanawha circuit court against Mrs. Patton, her trustee and others, for the purpose of foreclosing this mortgage. The bill alleged that the note for $1,075 was still unpaid, and that the plaintiff had also been compelled under decree of the Louisville court to pay the further sum of $1,050, for which he became the surety of Mrs. Patton in the Mason suit in that court. The bill prayed for the sale of the real and personal property set out in the mortgage for the satisfaction of these claims.

The cause was matured as to all the original defendants at the fall term, 1869. On the 9th March, 1870, by order of the court, Amanda L. Patton, infant child of the appellants, was made a party defendant to the suit, and Samuel A. Miller appointed her guardian ad litem. On the 12th April, 1870, her answer was filed, general replication thereto entered, and the cause then coming on to be heard upon the bill and exhibits taken for confessed and set for hearing at rules as to all the defendants, except the infant, and upon her answer and replication thereto, was referred by the court to Master Commissioner Burlew to report upon the amount and nature of the plaintiff's claim, its consideration, and for whose benefit created. Burlew having resigned his commissionership without executing this order of reference, on the 29th June, 1870, by order of the court, any one of the court's commissioners was authorized to execute the same.

On the 8th November, 1870, by order of the court, Nellie Tompkins Patton, another infant child of the appellants, born since the institution of the suit, was made a party defendant to the suit, and Samuel A. Miller was appointed her guardian ad, litem. The children of Mr. and Mrs. Patton were made parties to the suit on account of whatever contingent interest they might have in the real estate mortgaged.

On the 24th March, 1871, the commissioner returned to court his report made under the order of reference above mentioned, finding due to the plaintiff from the defendants, Patton and wife, on July 5, 1870, the sum of $2,227, and that the indebtedness was created for the benefit of Mrs. Patton and her trust estate. The same day the cause came on to be heard upon the papers and proceedings theretofore had and read, the answers of the two infant defendants and replications thereto, and upon the commissioner's report, to which no exceptions had been taken. The decree of March 24, 1871, was thereupon entered. By this decree the commissioner's report was approved and confirmed; and after reciting that the court was of opinion that the plaintiff was entitled to recover against Patton and wife the sum of $2,227, reported by the commissioner, with interest and costs, and that Mrs. Patton was entitled to a life estate in the land set out in the mortgage, and that this as well as the personal property conveyed by the mortgage were liable for plaintiff's said debt, the court proceeded, by consent of all the parties, signified by their signing the decree, to adjudge, order and decree a sale of Mrs. Patton's life estate in the land, and of the personal property, on the usual terms. L. A. Martin and H. C. McWhorter were appointed special commissioners to execute the decree. The consent of the appellants to this decree was signified by its being signed by O. A. Patton, as trustee for Mrs. R. Ellen Patton.

While this suit was still pending, and before the execution of the above decree of sale, viz: In July, 1871, Mrs. Patton filed a bill in the circuit court of Kanawha county against her trustee and husband, Oliver A. Patton, and her two children, Amanda L. and Nellie T., alleging that an error and mistake was made in drafting the deed of partition of April 20, 1867, between herself and the other devisees of William Tompkins, deceased, so far as related to the trusts therein created by her; that her true and sole purpose and intention, at the time she executed the deed, was simply to convey her part of the property to a trustee as her sole and separate estate, free from the control and liabilities of her husband; that she did not intend to part with the fee in the property, or to limit her interest...