Moran v. Clark

• Decision Date: 12 November 1887
• Citation: 4 S.E. 303,30 W.Va. 358
• Parties: MORAN v. CLARK et al.
• Court: West Virginia Supreme Court

4 S.E. 303

30 W.Va. 358

MORAN v. CLARK et al.

Supreme Court of Appeals of West Virginia.

November 12, 1887

Submitted September 8, 1887.

Syllabus by the Court.

The people in their constitution, as far as future debts may affect it, have the right to provide for any sort of a homestead, guarded as they please subject to or without restrictions; to prohibit the owner of the homestead from incumbering it, or to permit it to be done; and, unrestricted by the constitution, the legislature has the same power.

Where there is neither constitutional nor statutory prohibition, as incident to the right of ownership, the owner of the homestead may sell or incumber it; and such sale or incumbrance will be as valid as if the property had not been set apart as a homestead.

The sale of a homestead under a deed of trust, or under a decree of foreclosure of mortgage thereon, is not a "forced sale," within the meaning of the constitution, which exempts a homestead from a "forced sale."

Under the constitution of this state, and Acts 1872-73, c. 193, the owner of the homestead set apart under the statute may execute a valid deed of trust on such homestead.

It is difficult to lay down a general rule as to when a court will or will not refuse to confirm a judicial sale, as its exercise of discretion in this matter must in a great measure depend upon the circumstances of each case.

Where there had been two sales of real property,-one under a deed of trust, and the other at a judicial sale,-made not far from each other in point of time, both sales at $2,000, and affidavits were filed, stating that the property was worth at the time affidavits were taken, from $3,000 to $3,500, and "affiants believed that in the near future said property could be sold for an advance of from $500 to $1,000 over the price of $2,000 for which it sold, and another affidavit showed it sold for a fair price, this court refused, on the mere ground of inadequacy, to set aside the sale.

The appellate court will not reverse a decree unless it is to the prejudice of the appellant.

Appeal from circuit court, Mineral county.

Complaint by bill in chancery, exhibited by Cornelius Moran against James Clark; and James Clark and ___, whose name is unknown partners doing business under the firm name of James Clark & Co.; William C. Clayton, trustee; A. H. Boyd; the Keyser Building & Loan Association; T. B. Davis and Henry G. Davis, surviving partners of T. B. Davis, H. G. Davis, and William R. Davis, late partners doing business under the firm name of T. B. Davis & Co.; Allen Henshaw; Richard Bell; J. G. Koely; Lewis Spindler; Floyd Knight; David Davis; John Miller; John H. Ashfield; H. W. Baker and T. E. McCorle, partners doing business under the firm name of Baker & McCorle,-for the establishment of a homestead right of $1,000 in value in lots Nos. 169 and 170, situated in the town of Keyser, in Mineral county, West Virginia, which had been used, occupied, platted, and recorded as his homestead, as provided by law. Against the foregoing property, plaintiff and wife executed two mortgages to the Keyser Building & Loan Association, each for the sum of $600; a deed of trust to William C. Clayton, to secure debts of plaintiff, as follows: To T. B. Davis & Co., balance on note of about $265; note to Allen Henshaw, $280; to Richard Bell, $100; accounts to J. G. Koely, $80; Lewis Spindler, $54; Floyd Knight, $70; James Clark & Co., $29; David Davis, $55; John Miller, $115; Henry Schumback & Co., $451.50; John Ashfield, $15; Baker & McCorle, $15; T. B. Frye, $15; I. M. Long, $10,-and all other debts, if any, then due from plaintiff. In this trust deed, plaintiff expressly reserves his homestead right. On December 27, 1881, plaintiff, with his wife, executed another deed of trust to said William C. Clayton, on the property in controversy, to secure a single bill executed by plaintiff with defendant James Clark as his surety, payable to A. H. Boyd or order, for $1,000, due in three years, with interest, to indemnify said Clark as surety on said note. On May 10, 1883, plaintiff, with his wife, executed another deed of trust to said William C. Clayton, as trustee, to secure the firm of James Clark & Co. a note of $1,000, payable to their order, with interest. In the two last-mentioned deeds, plaintiff waives his homestead right, but at the time of such waiver was a husband and parent, and resided in the state of West Virginia. Said Clayton, trustee, acting under and by virtue of the authority contained in the last-mentioned deeds, advertised and sold said property at public auction to the highest bidder, James Clark, who bid it in, in his own interest, at $2,000; and afterwards, in pursuance of such sale, and authority in said trust deed as aforesaid, said Clayton, as trustee, made a deed of the property to said James Clark. At the time of the sale by Clayton, trustee, none of the liens on the property had been released, as shown by the records. It was claimed by plaintiff that the price for which the property was knocked off to Clark, was inadequate, and, in support of such claim, plaintiff filed a number of affidavits of citizens who were acquainted with the premises. These affidavits were controverted by counter-affidavits filed by defendants. There was a final decree in the case confirming the sale of the property in controversy free of any homestead right of plaintiff. From this decree and finding of the court, plaintiff, Cornelius Moran, appeals. Some additional facts appear in the opinion.

Geo. E. Price and F. M. Reynolds, for appellant.

W. C. Clayton and C. W. Dailey, for appellees.

JOHNSON P.J.

On the first day of December, 1874, Henry G. Davis and others conveyed to Cornelius Moran lots Nos. 169 and 170 in the town of Keyser for the sum of $752.50. In the habendum clause in this deed is the following language: "To have and to hold the said lots, with all the appurtenances, unto said C. Moran and his heirs forever as and for a homestead, exempt from forced sale, according to the provisions of chapter 193 of the acts of the legislature of West Virginia, session of 1872-73." A lien was expressly reserved for $557.50 of the purchase money. The following paper was executed on the same day by Cornelius Moran, duly acknowledged on the sixteenth day of December, 1874, and recorded on the twenty-eighth day of the said month, 1874: "Whereas, Henry G. Davis and Kate A., his wife, Thomas B. Davis, and William R. Davis and Mary H., his wife, have this day conveyed unto Cornelius Moran two certain lots in the town of Keyser, Mineral county, West Virginia, by deed bearing even date herewith, for the consideration of $752.50, and the said Cornelius Moran desires the benefit of a homestead in said lots, therefore this writing witnesseth that the said Cornelius Moran intends to set apart as and for a homestead, exempt from forced sale, under and according to the provisions of chapter 193 of the acts of the legislature of West Virginia, session of 1872-73, [here follows a description of the lots.]" On the second day of April, 1880, Cornelius Moran and Bridget, his wife, executed to W. C. Clayton, trustee, a deed of trust on said homestead property, together with all the household and kitchen furniture, and all the hotel, bar, and ten-pin alley fixtures in the house, to secure a large amount of debts. This deed was properly acknowledged by Moran and wife on the third day of April, 1880, and the same day admitted to record. This deed was by its own terms "subject to the homestead, as this clause shows;" "but the lots in Keyser above conveyed are subject to the homestead right of C. Moran to the amount of $1,000, as shown by his declaration of homestead, duly recorded," etc. On the twenty-seventh day of December, 1881, Moran and wife executed another deed of trust to the same trustee, conveying the homestead lots, to secure the debt of the defendants Clark and Boyd; amounting then to $1,000. In this deed, we find the following, in the granting clause, after describing the two lots: "Together with all the buildings, fences, and other improvements thereon, and all the appurtenances thereunto belonging; expressly waiving all rights of homestead, and granting and conveying said lots and appurtenances free from any and all rights, reservations, claims, and demands of the said parties of the first part." This deed was properly acknowledged by Moran and wife on the twenty-eighth day of December, 1881, and on the fourteenth January, 1882, admitted to record. On the tenth day of May, 1883, the said Moran and wife executed still another deed of trust on said homestead lots and appurtenances to W. C. Clayton, trustee, to secure the payment of a note of $1,000 payable to James Clark & Co. This deed contains the following: "And the homestead right, to the amount of $1,000, set apart by the said C. Moran by his declaration of homestead recorded in said county of Mineral, in Deed Book 5, page 190, is hereby waived and set aside, so that this conveyance is wholly free therefrom." This deed was properly acknowledged by Moran and wife on the tenth May, 1883, and on the same day admitted to record. The trustee, Clayton, advertised and sold the property, and Cornelius Moran filed his bill in the circuit court of Mineral county at June rules, 1885, in which he set up the foregoing facts, and insisted that he could not incumber and waive his homestead, and also that said property was sold for an inadequate price, and was purchased by the defendant and James Clark. He alleges, also, other reasons for setting aside the deed, and prayed that the court would declare his right to a homestead of $1,000 in value in said property, and that the deed be set aside, and declared null and void; and, if the court deemed...