Merch.s Nat'l Bank Of Point Pleasant v. Ralphsnyder.

• Decision Date: 21 March 1933
• Docket Number: (No. 7190)
• Citation: Merch.s Nat'l Bank Of Point Pleasant v. Ralphsnyder., 169 S.E. 89, 113 W.Va. 480 (W. Va. 1933)
• Parties: Merchants National Bank of Point Pleasant v. I. C.Ralphsnyder et al.
• Court: West Virginia Supreme Court

113 W.Va. 480

Merchants National Bank of Point Pleasant

v.I. C. Ralphsnyder et al.

(No. 7190)

Supreme Court of Appeals of West Virginia.

Submitted March 7, 1933.

Decided March 21, 1933.

1. Creditor's Suit

The statutory provision requiring the court in a creditors' suit to ascertain the rents and profits for five years of the real estate subject to lien, does not apply to the enforcement of a deed of trust in such suit.

2. Appeal and Error

The error of a lower court must be prejudicial to the complaining party in order to call for a reversal upon appeal.

3. Judicial Sales

The highest competitive bid at a public judicial sale, properly advertised and conducted is ordinarily accepted by courts as a fair criterion of the value of the property sold, in the absence of evidence to the contrary. Blankenship v. Mongini, 105 W. Va. 530, 143 S. E. 301.

4. Judicial Sales

After confirmation of a judicial sale, inadequacy of price alone will not avoid the sale, unless the inadequacy clearly imports fraud. Blankenship v. Mongini, supra.

5. Judicial Sales

The purchaser at a judicial sale has the right to expect from the court a title as free from liens as is within the power of the court to confer.

Appeal from Circuit Court, Taylor County.

Suit by the Merchants' National Bank of Point Pleasant against I. C. Ralphsnyder and others. From decrees directing and confirming sale of real estate under deed of trust, defendant named and others appeal.

Affirmed.

G. W. Ford, for appellants.

Hogg & Hogg, for Merchants' National Bank.

Harvey W. Harmer, and J as. R. M or eland, for Louise Jarvis Currence, executrix.

Tusca Morris and Robert C. Morris, for Lucille Gas Co. Trevy Nutter, for Buckeye Savings & Loan Co. Deveny & Furbee, for National Bank of Fairmont.

Hatcher, Judge:

This is a general creditors' suit brought in the circuit court of Taylor County in 1927 by the plaintiff against I. C. and W. M. Ralphsnyder. Their lien creditors and G. M. Ralphsnyder and others, were made parties. Certain real estate of the Ralphsnyders was sold, and they appeal from both the decree directing, and the decree confirming, the sale.

A deed of trust was executed July 9, 1913, by I. C, W. M. and G. M. Ralphsnyder (hereinafter for brevity referred to by their several initials) on 213 acres in Monongalia and 873 acres in Preston county, to secure Buckeye Savings & Loan Society in the payment of a note of $16,000.00, of which I. C. and W. M. were the makers. The 873 acres was owned solely by W. M.; he and I. C. and G. M. were equally interested in the 213 acres. These two tracts constituted the main real estate holdings of the Ralphsnyders. The 873 acres was purchased by the state in 1925 for the non-payment of taxes in 1923 and ordered to be sold by a decree entered on December 31, 1928, in a suit brought by the commissioner of school lands, in the circuit court of Preston county. That order of sale was later confirmed in this court (though a sale under the decree was set aside.) See State v. Felty, 109 W. Va. 384, 155 S. E. 122. Because of the above facts, the circuit court of Taylor county held that the tract could not be sold in the instant suit, the decree reciting that this was "a fact which is conceded".

The 213 acres and some other real estate were ordered to be sold by a decree entered February 23, 1931, and the sale was regularly advertised for thirty days. The property was offered on May 23, 1931, but no substantial bids were received, and the sale was continued (by proclamation and posting) until May 29th, when the 213 acres was sold for $20,100 to New England Fuel & Transportation Company. An upset bid of $22,100 was promptly filed by Lucille Gas Coal Company and the court ordered a re-sale of the tract to be made on June 18th, after publication thereof one time in a local newspaper on or before June 11th. This was done, and the tract was purchased on June 18th by the Lucille Company at $27,600. The special commissioners reported that before offering the tract as a whole, they offered the two-thirds undivided interest of I. C. and W. M., but received no bids. This plan of sale was in pursuance of both the request of G. M. (in his answer) and the order of the court. The tract was sold for cash, which was permissible under Stafford v. Jones, 73 W. Va. 299, 80 S. E. 825, since the deed of trust called for a cash sale, and had priority over the other liens (except those of taxes) and the debt secured thereby was long past due. The sale was confirmed by the court on June 20th. The balance due the Buckeye Company on the note of I. C. and W. M. was $8,607.31, and their two-thirds interest in the sales price of the 213 acres was more than ample to satisfy that balance. So, after pro rata payments of costs and of the taxes for 1930, the remainder of one-third of the purchase price was decreed to belong to G. M. Other real estate consisting of three parcels was sold to D. S. Brown, R. C. McOlvin and Nora E. Kennedy, respectively, and brought, in all, $5,155. These sales were also confirmed.

The appellants' brief objects earnestly to the finding of the court that taxes amounting to $5,520.42 were liens on the 873 acres, since that tract was not sold in this suit. That finding was improper, but those taxes were reported by the commissioner and no exception taken thereto. The order of the court made a general requirement that all the liens reported which would include the $5,520.42 be paid within thirty days by the Ralphsnyders and in default of such payment that the property be sold. The Ralphsnyders did not call the attention of the court to this erroneous inclusion and they made no showing that they would or could have complied with the order, had it been free of that error. Prom the record they appear to be hopelessly insolvent. At the sale, G. M. announced to the commissioners that he had no money to pay even the delinquent taxes on the 213 acres. In distributing the proceeds from the sales of the other lands, no payment was in fact made by the commissioners on the taxes against the 873 acres. Consequently we cannot see that appellants were in any way prejudiced by the above error.

The bill alleged that the rental of the real estate of I. C. and W. M. for five years would not pay off their indebtedness, and this allegation was not denied. No investigation of the allegation was requisite, under Abney, Barnes Co. v. Coal Co., 83 W. Va. 292, 301, 98 S. E. 298, 299. However, the commissioner did report in accord with the allegation and the court confirmed the report. But appellants' brief complains because there was no separate finding as to the rental value of the real estate of G. M. He was not a lien debtor of the plaintiff, was not proceeded against as such, and was brought into the proceeding solely because of his joinder in the deed of trust with the lien debtors, I. C. and W. M. No attempt whatever was made to settle his affairs and his interest in the proceeds of the 213 acres was specifically set apart to him by the decree of the court. The brief continues: "Again, the interest of George M. Ralphsnyder in the five parcels (the 213 acres) is made liable under the decree for the Buckeye Loan Company debt only, and if that land segregated would rent for enough within the five years to satisfy the Buckeye debt, then the in- terest of George M. could not be sold. Hence, it was absolutely necessary to determine from proper evidence the rental value of this land, independently of all other land." This contention overlooks entirely the deed of trust executed on this tract by the Ralphsnyders, in which ascertainment of rental value before sale was not required. The sale was made in conformity with the provisions of that instrument, and the Ralphsnyders will not be permitted now to assert a right against the sale which they parted with in the deed of trust. This ruling is in conformity with Lewis, Hubbard & Co. v. Toney, 76 W. Va. 80, 85 S. E. 30, which holds that the statutory provision requiring the court in creditors' suits to ascertain the rents and profits of real estate for five years does not apply to the enforcement of a deed of trust. The provision relates only to judgment liens. Phipps v. Lopinsky, 97 W. Va. 457, 125 S. E. 250. "A mortgagee does not lose any substantive rights by being compelled to enforce his trust lien in a pending judgment lien creditors' suit, and, where the lien of the former has priority the time and terms of the sale will ordinarily be determined by the provisions of the trust deed, not by rules applicable to the enforcement of judgment creditors' liens." Abney, Barnes & Co. v. Coal Co., supra.

Pending the commissioner's report, the Terra Alta Bank and A. G. Hughes, its trustee, filed petitions before him setting up a deed of trust on the Preston county land and were made defendants. No process was issued on the petitions and the bill was not amended to include the petitioners, and appellants say that this was error. Those petitions may be regarded simply as presenting a lien to the commissioner and process was unnecessary. Dunfee v. Childs, 45 W. Va. 155, 30 S. E. 102. Besides, the proceedings by and in favor of the two petitioners became nugatory, when the Preston county land was not sold.

The brief asserts as error that "neither the report shows, nor does the decree of sale adjudicate, that the lands mentioned are all the real estate owned by any of the Ralphsnyders." The order of the court directed the commissioner to show "all the real estate owned by the judgment debtors I. C. Ralphsnyder and W. M. Ralphsnyder." The commissioner reported in these words: "I. C. Ralphsnyder and W. M. Ralphsnyder are the owners of the following described property, to-wit", sundry tracts of real estate then being listed. It will be presumed that he performed his duty as directed and that his report includes all the real estate owned by I. C. and W. M. See generally Central Co. v. N. & W. Er. Co., 44 W. Va. 286, 28 S. E. 926....