McMillan v. Hickman, et al.

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

35 W.Va. 705

McMillan

v.Hickman, et al.

Supreme Court of Appeals of West Virginia.

Submitted September 9, 1891.

Decided December 19, 1891.

Judgment Bade Parties.

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, aud who arc 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 can not be made informal parties by publication.

2. Judgment An at e m ent.

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.

3. JUdGment-LIen.

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

Laird & Taylor for appellant, cited 16 W. Va. 725; Id. 625; 17 W. Va. 655; 28 W. Va. 656; 31 W Va. 688; 33 W. Va. 652; 4 Black Comm. 133, 134; Bar. Law Pr. 93; 1 Bob. (old) Pr. 121, 122; 2 Leigh 733; 14 Graft. 42; Sto. Eq. Pi. § 498; 1 Caines 519; 70 111. 65; 5 So. Ca. 159; 24 W. Va. 416, 492; Taney C. C. 362; 3 II. & M. 67; 3 Black. Comm. 801; Tidd Pr. 418, 419; 5 Rob. Pr. 2, 10, 12, 49; Id. 11; 21 Graft. 685; Sto. Eq. PI. §§ 14, 707, 708, 710; 3 II. & M. 79, 83-85; 9 Graft. 379; 11 Graft. 625; 16 Graft, 360, 861; 21 Graft, 362-364; Code, c. 125, s. 16; 3 W. Va. 586; 4 Min. Inst. 625, 1059; Dan. Ch'y Pr. (4th Am. Ed.) 690; Id. 630; Sto. Eq. PI. § 727; 4 Min. Inst. 627; 1 Laws Bights Rem. Pr. §§ 161, 167; 21 W. Va. 361; 93 U. S. 277; 6 Pet, 709; 22 W. Va. 181; 29 W. Va. 326; 27 W. Va 658; 7 Gray 505; 44 Cal. 286; 28 W. Va 601; 127 Mass. 326; 3 Allen 326; 38 W. Va. 229; 12 Am. & Eng. Ency. Law 247 note, 248-251.

W. L. Miller for appellee, cited 4 Min. Inst. 627, 1054; 5 Rob. Pr. 49; Id. It; 6 Rand. 121, 122; 2 Leigh 735; 8 Watts 462; 1 Munf. 284; 2 Munf. 240; Code, c. 125, s. 16; 4 Min. Inst. 1059; Code, c. 125, s. s. 46, 47; 1 Chitt. PI. 472; Bar. L. Pr. (1877) 100; Code, c. 104, s. 6; Id. c. 89, s. 12; 28 W. Va. 607, 608; 3 Tenn. Ch'y 187; 13 Graft. 152; 20 W. Va. 851; 27 Graft. 628; 33 Graft, 858; 75 Va, 480; Code, c. 134, s. 5; 21 Graft. 382; 12 W. Va, 298; Id. 750; 20 W. Va. 59; 10 Pet. 447, 449; 27 Gratt. 630, 631: 1 Bar. Ch'y Pr. 248; Code, c. 125, s. 39; 10 W. Va. 507; Sto. Eq. PI. § 708 and n.; 29 W. Va. 332; 23 W. Va. 656, p't4 Sylh; Code, c. 139, s. 7; 22 W. Va 444; 1 Bar. Ch'y Pr. 273; 2 Dan. Ch'y Pr. 1522, 1538; 16 W. Va. 724; 23 W. Va. 656; Code, c. 76; Sedg. & W. Tit, § 336; 2 Band. 422; 31 W. Va. 688; 33 W. Va. 644.

English, Judge:

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. Yt. Tate on motion for judgment and award of execution on a bond for the forthcoming of property for seven hundred and eighty one dollars, the penalty of said bond and his costs by him expended, to be discharged by the payment of three hundred and eighty one dollars and fifty cents, with interest thereon from the 1st day of October, 1878, until paid; and on the 23d day of March, 1882, another judgment was rendered in favor of said Miles White against A. J. Hickman and C. J. Stuart for the sum of two hundred and five dollars and four cents, 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 one hundred and sixty six 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 two hundred and twenty seven dollars and seventy three cents, with interest from the 10th day of December, 1877, and two dollars and forty cents 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 clay of March, 1884, said chancery cause was heard upon the decree nisi and upon the bill taken for con- fessed, and was argued by counsel, and said cause was referred to a commissioner to ascertain (1) whether the rents and profits of said one hundred and sixty six 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.

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 five hundred dollars due and payable on the 1st day of December, 1878, which deed of trust was dated December 11, 1876, and was acknowledged and recorded the same day; second, the judgment of Samuel McMillan against said A. J. Hickman, which, amounted, including interest and costs, to three hundred and eighty four dollars and seven cents; third, the judgment of Miles White against A. J. Hickman and C. M. Tate, amounting on March 18, 1889, including interest and costs, to four hundred and seventeen dollars and ninety one cents; fourth, said judgment against A. J. Hickman and C. J. Stuart, amounting March 18, 1889, including interest and costs, to three hundred and three dollars and forty two cents; 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 four hundred and forty three dollars and fifty five cents; sixth, a judgment in favor of John F. Boyce v. A. J. Hickman, amounting on the 18th day of March, 1889, to thirteen dollars and eighty five cents, 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 the 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 he 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 the Circuit Court of Do del ridge county on the 25th day of November, 1878, for the sum of seven hundred and eighty one dollars and costs, to be discharged by the payment of three hundred and eighty one dollars and fifty cents, with interest thereon from the first 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 three hundred and forty one dollars, besides the value of the hogs; and that the following cash payments were made upon said execution: September 15, 1880, forty dollars; October 21, 1880, seventy dollars; and July 14, 1887, fifty dollars. 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, were filed therewith, and made part of said report.

On the 22.1 of March, 1890, said A. J. Hickman filed with the clerk the deposition of B. F. Haines, dated March 19, 1890, and the deposition of George McCaffray, 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; ami 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 McCatiray; 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 Purviance, widow and executrix of Robert Pur-viance, deceased, to J. M. Wilson, which was filed in the cause as "Exhibit H F," and that the papers in the...