McCoy v. Allen
| Decision Date | 30 June 1880 |
| Citation | 16 W.Va. 724 |
| Parties | MCCOY v. ALLEN et al. |
| Court | West Virginia Supreme Court |
1. Upon a bill in chancery against one defendant, on her filing an answer and stating facts which show that a third party ought to have been made a defendant, the court simply orders this third person to be made a defendant, process issues against him and is served upon him; but the original bill was not amended, and in it there were no allegations against this person, and no relief was prayed against him; evidence is taken to prove the facts alleged in the answer, which show the interest in the suit of this third person, and a commissioner of the court reports the facts to the court after he had served a notice on this third person that the matter was before him and he would report thereon; this third person never appeared in the suit. Held.
The court had no jurisdiction over him, and could in such a case render no decree against him, and if it did so, such decree was a mere nullity.
2. If such decree was final, it could be reversed on a bill of review or by an Appellate Court on appeal.
3. If a creditor files a bill to subject the real estate of a debtor to a judgment lien, and in his bill fails to state that there is any other lien on this real estate, or to ask the auditing of other liens, and makes only the debtor a party defendant though the court in such case by its decree directs a commissioner to ascertain all liens and their priorities still the court can not, upon the report of the commissioner that a prior deed of trust had been satisfied, decree that the debt secured by it has been paid, and order its release. Such a decree of the court is a mere nullity, and not binding on the trustee or cestui que trust, because they were not parties to the suit; nor does such order of reference or an actual service of notice by the commissioner on the cestui que trust make him a party, or render such a decree valid as against him.
Appeal from and supersedeas to two decrees of the municipal court of Wheeling, rendered, the one on the 30th day of January, 1875, and the other on the 1st day of January, 1878, in a cause in chancery in said court then pending, wherein Catherine McCoy was plaintiff, and Cornelia E. Allen and others were defendants, allowed upon the petition of Robert W. Cox.
Hon. Gibson L. Cranmer, judge of the municipal court of Wheeling, rendered the decrees appealed from.
Green President, furnishes the following statement of the case:
In 1874 Catharine McCoy brought a suit in chancery in the municipal court of Wheeling against Cornelia E. Allen and her husband, to enforce against certain real estate, in Wheeling, owned by her as her separate estate, the lien of a judgment of the county court of Ohio county, obtained against her by the plaintiff, while she was feme sole. The bill was not in form or substance a creditor's bill; and it did not allege that there were any other liens on this real estate. It made no one but Cornelia E. Allen and her husband defendants, and prayed that this real estate might be sold to satisfy the plaintiff's judgment, and for general relief.
Cornelia E. Allen filed her answer, admitting the allegations in the bill, and claiming she was entitled to certain credits on this judgment, the amount of which she did not know. She states that this real estate was conveyed to her by her father for her sole and separate use on March 1, 1873; that when so conveyed there was an old deed of trust upon it, executed by her father September 17, 1841, to Zachariah Jacobs, trustee, to secure certain debts then due to Michael Cresap; --that these debts had been long since paid; that the creditor, Michael Cresap, had died, and Robert W. Cox was his administrator; that this old deed of trust had never been released; that in 1874 she had sold this property for $1,475.00, out of which she intended to pay the balance which might be due on plaintiff's judgment; but the purchaser declined to complete the sale, unless this old deed of trust was released; and said Robert W. Cox, as administrator of Michael Cresap, unreasonably refused to execute any release, and she was unable to complete the sale, whereby she sustained much loss, including the costs of this suit, which but for his unreasonable refusal would not have been brought. She prays he may be made a defendant to this suit; that the cause may be referred to a commissioner to ascertain the liens on this real estate, their amounts and priorities; and that said administrator he required to pay the costs of this suit, and release this old deed of trust.
On the filing of this answer the court on her motion ordered him to be made a defendant, and that process issue against him; and it was at the same time decreed, that this cause be referred to a commissioner to ascertain the credits on plaintiff's judgment and the liens on this real estate and their priorities and amount. Process was issued and served on Robert W. Cox, administrator of Michael Cresap, to answer the bill in which he was not named or alluded to in any manner. No amended bill was ever filed. He did not appear in answer to this summons; and Cornelia E. Allen filed at rules, what she calls, a cross-bill, making the same allegations as were made in her answer, and concluding with a like prayer. No process was issued nor was served on Robert W. Cox, administrator of Michael Cresap, to answer this cross-bill, as it was called. Shortly afterwards Cornelia E. Allen filed an amended answer, stating that she had sold this real estate at a sacrifice of $50.00, as compared with the first sale, and had paid off the balance due on the plaintiff's judgment and the costs of this suit. In the meantime the commissioner had made his report, stating what was the balance due on the plaintiff's judgment; that the debt secured by said deed of trust had been satisfied, and that Cox's wrongful refusal to release this deed of trust had necessitated this suit and had caused the costs thereof to be unnecessarily increased. Notice that the commissioner would execute the order of reference was duly served on Cox, who paid no attention thereto, and a deposition was taken by defendant, Cornelia E. Allen, to sustain the views which the commissioner adopted.
On January 30, 1875, the court entered a final decree in the cause, as follows:
" This cause came on this day to be further heard upon the papers formerly read, and the report of L. S. Jordan, one of the commissioners of this court, which having remained in the office of said commissioner for a period of ten days after the same was completed, and having remained in the clerk's office of this court for a period of twenty days after the same was filed, and no exceptions having been taken to said report, it is considered by the court that the same be and is hereby confirmed and approved. And it appearing from said report that there is no lien upon the property mentioned and described in the bill and cross-bill filed in this cause by virtue of the deed of trust made by Matthias Jeffers to Zachariah Jacobs, dated the 17th day of September, 1841, securing to Michael Cresap certain debts therein specified; and it fully appearing to the court that all debts so secured by said deed of trust have been fully and lawfully discharged; and it further appearing to the court that the said Michael Cresap is deceased, and that the defendant, Robert W. Cox, is his administrator; and it further appearing that the said Robert W. Cox refused to make any specific claim under said deed of trust, and has steadily refused to release the same; and it further appearing to the court, that in consequence of said Cox's refusal to so release said deed of trust, the complainant in the cross-bill filed herein has been subjected to a loss of $75.00 on the price realized from the property described in the bill--the defendant, Cornelia E. Allen, having since the institution of this suit sold said property for the sum of $1,400.00 and has been subjected to the costs of the original suit herein, amounting to $48.10, as taxed by the clerk of this court; and it appearing that the action of the said Robert W. Cox in the premises has been arbitrary and without authority of law, upon consideration whereof it is by the court adjudged, ordered and decreed, that the said Cornelia E. Allen recover from the defendant, Robert W. Cox, the sum of $123.10, the aggregate of the said loss of $75.00 hereinbefore mentioned, and $48.10, the costs aforesaid, with interest thereon until paid, as well as the costs by the said Cornelia E. Allen in the cross-bill and proceedings thereon expended.
And it is further adjudged, ordered and decreed that execution do issue against the said Robert W. Cox for the above amount and costs, including $10.00 to R. G. Barr, the same as upon a judgment at law for executing and recording the release hereinafter provided for. And it appearing, that since the said commissioner's report was filed, that said property has been sold by the said Cornelia E. Allen, and the judgment-lien of the said Catharine McCoy, with costs of suit, has been paid off and discharged, it is ordered, with consent of said complainant, that this suit as to said complainant be dismissed.
And it is further adjudged, ordered and decreed, that R. G. Barr who is hereby appointed a special commissioner for that purpose, do execute and place on record a release of the deed of trust made by Matthias Jeffers to Zachariah Jacobs to secure Michael Cresap of certain debts therein specified, which deed of trust is dated September 17, 1841, and now of record in the clerk's office of Ohio county court, in deed-book number twenty-five, page 257; but this release is only to be made as to the part of said lot lately owned by ...
To continue reading
Request your trial