Mcmillan v. Hickman

• Decision Date: 19 December 1891
• Citation: 14 S.E. 227,35 W.Va. 705
• Court: West Virginia Supreme Court
• Parties: McMillan. v. Hickman et al.

14 S.E. 227

35 W.Va. 705

McMillan.

v.Hickman et al.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1891.

Creditors' Bill—Parties — Death op Plaintipp —Judgment—Lien.

1. In a proceeding in chancery by a judgment creditor to subject the real estate of his debtor to the payment of his judgment lien it is the duty of the plaintiff to make all the lien creditors of the debtor known to him, and which are disclosed by the judgment lien docket, or the records of the courts of the counties in which the lands sought to be sold are situated, parties to the suit; and where there are liens by trust-deeds the trustees in such deeds must be made formal parties before any sale of the debtor's lands can be ordered, and such trustees cannot be made informal parties by publication.

3. Where suit is instituted in the name of a party who is dead at the time the suit is brought, and process is duly served upon the defendants, who suffer judgment to be rendered against them without pleading the death of the plaintiff in abatement in proper time during the pendency of the suit, the judgment so obtained is not absolutely void, but is erroneous.

8. Such judgment, until reversed in one of the modes prescribed by law, constitutes a liea upon the real estate of the defendant, and may be enforced as other judgment liens, and is not subject to collateral attack.

(Syllabus by the Court.)

Appeal Trom circuit court, Doddridge county.

Suit by S. B. McMillan, administrator of Miles White, against A.J.Hickman and others, to enforce judgment liens. Decree for plaintiff. Defendant Hickman appeals. Reversed.

Laird & Turner, for appellant.

W. N. Miller, for appellee.

English, J. On the 25th day of November, 1878, a judgment was rendered by the circuit court of Doddridge county in favor of Miles White against A. J. Hickman and C. M. Tate on motion for judgment and award of execution on a bond for the forthcoming of property for $781, the penalty of said bond and his costs by him expend-ed, to be discharged by the payment of $381.50, with interest thereon from the 1st day of October, 1878, until paid; and on the 23d day of March, i882, another judgment was rendered in favor of said Miles White against A. J. Hickman and C. J. Stuart for the sum of $205.04, with interest from the 20th day of March, 1882, until paid, and costs; and on the 20th day of April, 1883, a chancery suit was instituted in the name of said Miles White as plaintiff against A. J. Hickman, C. M. Tate, C. J. Stuart, and Samuel McMillan, for the purpose of enforcing the lien of said judgments against a tract of land containing' 166 acres, owned by said A. J. Hickman, and situated in said county of Doddridge. Said plaintiff also alleged in said bill that the defendant Samuel McMillan had a judgment against the defendant Hickman for the sum of $227.73, with interest from the 10th day of December, 1877, and $2.40 costs, which was a lien on said land, and was older than the plaintiff's lien; and he prayed that said land might be subjected to the payment of said judgments. On the 20th day of March, 1884, said chancery cause was heard upon the decree nisi and upon the bill taken for confessed, and was argued by counsel, and said cause was referred to a commissioner to ascertain (1) whether the rents and profits of said 166 acres of land would satisfy the plaintiff's judgment in five years; (2) the liens on said lands, and their priorities; (3) what, if any, other liens exist against said land. And said commissioner reported as a first lien thereon a deed of trust from J. A. Hickman and wife to A. J. Charter, trustee, etc., to secure to L. R. Charter the payment of $500 due and payable on the 1st day of December, 1878, which deed of trust was dated December 11, 1876, and was acknowledged and recorded tho same day; second, the judgment of Samuel McMillan against said A. J. Hickman, which amounted, including interest and costs, to $384.07; third, the judgment of Miles White against A. J. Hickman and C. M. Tate, amounting on March 18, 1889, including interest and costs, to $417 91; fourth, said judgment against A. J. Hickman and C. J. Stuart, amounting March 18, 1889, including interest and costs, to $303.42; fifth, a judgment in favor of Wilson Sewing-Machine Company against A. J. Hickman and others, amounting on the 18th of March, 1889, including interest and costs, to $443.55; sixth, a judgment in favor of John F. Boyce v. A. J. Hickman, amounting on the 18th day of March, 1889, to $13.85, including interest and costs. C. M. Tate excepted to said commissioner's report: "For that the said commissioner had in and by said report certified that an execution in favor of Miles White against said A.J.Hickman and C. M. Tate was placed in tbe hands of John Donahue, who was sheriff of Doddridge county, and that a levy was made on the personal property of A. J. Hickman, the principal debtor, sufficient to satisfy said judgment, with what cash payment was made to the said sheriff on said execution, and that the said property was suffered to remain in the possession of the said A. J. Hickman, and not sold, without the consent or knowledge of said Tate; that he, the said Tate, was the security of said Hickman in said debt, and that he should be released from further liability on the said judgment. Whereas, the said commissioner ought to have certified, in addition to the above certified facts, that the judgment was obtained in tbe circuit court of Doddridge county on the 25th day of November, 1878, for the sum of $781 and costs, to be discharged by the payuientof $381.50, with interest thereon from the 1st day of October, 1878, until paid, and the costs aforesaid; and that the said execution issued on said judgment on June 7, 1879, and was levied on the following property, the property of A. J. Hickman: One black horse, one black mare, one black yearling colt, one yearling heifer, one yearling steer, one spotted cow, eight white and spotted hogs, —by Amos Bee, which property was of the value of $341, besides the value ol the hogs; and that the following cash payments were made upon said execution: September 15, 1880, $40; October 21, 1880, $70; and July 14, 1887, $50. For that the said commissioner did not certify affirmatively that the said C. M. Tate, surety as aforesaid, was released from all liability to the creditor, Miles White, for the said debt evidenced by said judgment, " etc. The evidence taken by said commissioner, together with the exhibit therewith, were filed therewith, and made part of said report.

On the 22d of March, 1890, said A..1. Hickman filed with the clerk the deposition of B. F. Haines, dated March 19, 1890, and the deposition of George Mc-('affray, dated March 20, 1890, from which it appears that said Miles White died in the city of Baltimore, Md., on the 16th day of March, 1876; and on the 25th day of March, 1890, the parties appeared by counsel in said chancery court, and the said A. J. Hickman moved the court to issue a rule in said cause against E. Maxwell and T. W. Harrison, attorneys, and against S. B. McMillan, sheriff, and as such administrator of Miles White, deceased, to show cause, if any they could, why they had acted in contempt and abuse of the process of the court in said cause, and why said suit, by reason thereof, should not be dismissed, and they be compelled to pay the costs of said Hickman by him expended in this suit in his behalf, which motion was based upon the depositions of said B. F. Haines and George McCaf-fray; and also presented the depositions of A. J. Hickman and J. M. Wilson, and asked that said depositions be read as the affidavit of the parties, as well as the deed dated May 3, 1871, purporting to be the deed of Miles White and Margaret Pur-viance, widow and executrix of Robert Purviance, deceased, to J. M. Wilson, which was filed in the cause as " Exhibit H F, " and the papers in the cause might be read in evidence upon the hearing of said motion, which motion having been heard by tho court, and the evidence aforesaid considered, the rule moved for was awarded, and the same was docketed on the 21st of July, 1890, and duly served upon the parties, who filed their answers thereto, and on the 26th day of November, 1890, the questions arising upon said rule were argued by counsel, and upon consideration thereof said rule was discharged. And thereupon the said A..1. Hickman and C. M. Tate tendered their several answers to the plaintiffs, which were ordered to be filed, and the plaintiff replied generally thereto, and the case was heard on the bill und former decrees and proceedings had therein, and on the report of T. K. Knight, commissioner, filed on the 6th day of March, 1889, and the exceptions indorsed thereon byC. M. Tate, and the other exceptions, pleading usury, noted in said report as to the judgment of Samuel H. McMillan, and was argued by counsel, on consideration whereof the court held that the plaintiff was entitled to the relief prayed for, and overruled the exceptions and plea of usury of said Hickman, as well as plaintiff, against Samuel McMillan's judgment; and as to the exceptions of said Tate the court held that as, under the present state of pleadings, no relief was prayed or asked for against said Tate, it would decline to pass on said exceptions, and defer the same for future action, should the plaintiff seek relief against said Tate; and that this order and decree should be without prejudice to the said C. M. Tate to raise the question made by his exceptions in any subsequent proceedings to charge him or his estate with the payment of the judgment against him and the said Hickman. The court then proceeded to ascertain the aggregate amount of said liens and their priorities, and directed their payment to the parties entitled thereto, and directed, unless the said Hickman should pay said liens to the parties entitled thereto, as so ascertained, within 60 days, a sale of said 166 acres of land to be made by commissioners...