Morrison v. Holcomb

• Decision Date: 11 March 1941
• Docket Number: 9097.
• Citation: 14 S.E.2d 262,123 W.Va. 153
• Parties: MORRISON v. HOLCOMB et al.
• Court: West Virginia Supreme Court

14 S.E.2d 262

123 W.Va. 153

MORRISON v. HOLCOMB et al.

No. 9097.

Supreme Court of Appeals of West Virginia.

March 11, 1941

G. G. Duff, of Summersville, for appellants.

Wolverton & Callaghan, of Richwood, for appellee.

ROSE Judge.

This appeal was awarded to A. B. Holcomb and Myrtle Holcomb, his wife, from a decree of the Circuit Court of Nicholas County pronounced in a cause in which E. L. Morrison, as receiver of the Richwood Banking & Trust Company, a corporation, is plaintiff, and the said appellants and others were defendants. By the decree complained of, a house and lot situate in the City of Richwood and owned jointly and equally by plaintiff and A. B. Holcomb was ordered to be sold for partition, and the proceeds of the undivided one- half thereof belonging to A. B. Holcomb directed to be applied on reported and decreed liens against the same; and further, allowing a recovery in favor of plaintiff against the Holcombs for the use and occupancy of the plaintiff's undivided one-half interest in the property.

The suit was begun by a summons issued on the 27th day of September, 1939, and commanded the defendants named therein to answer a bill in chancery by "E. L. Morrison Receiver of Richwood Banking & Trust Company, a corporation, who sues on behalf of himself and all other lien creditors of A. B. Holcomb."

The bill states that the plaintiff and A. B. Holcomb are each the owner of an undivided one-half of a certain house and lot in the City of Richwood, and exhibits the deeds by which their respective titles were acquired and showing the description of the property in question; alleges that the said real estate "is not susceptible of partition between the plaintiff and the defendant A. B. Holcomb in kind, and to effect a partition thereof said property must be sold as a whole and the proceeds divided between the plaintiff and the defendant A. B. Holcomb"; and prays "that a decree may be entered appointing Special Commissioners with power and authority to sell said real estate and divide the proceeds between the plaintiff and the defendant A. B Holcomb." The bill also states that the plaintiff "brings this suit on behalf of himself and all other lien creditors of A. B. Holcomb"; that the undivided one-half of said real estate owned by the defendant A. B. Holcomb is subject to certain liens, describing them, and making the holders thereof parties, including the trustee in a deed of trust; "that the rents and profits of the undivided one-half interest of A. B. Holcomb in said real estate will not in five years pay off and discharge the liens existing thereon"; and prays that the cause be referred to a commissioner in chancery for the purpose of "ascertaining the liens, if any, upon the undivided one-half interest of the defendant A. B. Holcomb in said real estate."

And finally, the bill sets up that the defendants, A. B. Holcomb and Myrtle Holcomb, his wife, "have had the use and benefit of this plaintiff's undivided one-half interest in and to the above real estate", without having accounted to the plaintiff for rentals for the use and occupancy of his interest therein; represents that a reasonable rental for the plaintiff's interest in said real estate would be $7.50 per month, and prays that the cause be referred to said commissioner "for the purpose of taking and stating an account showing the rental due the plaintiff from the defendants A. B. Holcomb and Myrtle Holcomb."

The defendants, A. B. Holcomb and Myrtle Holcomb, filed their written demurrer, assigning that (1) the bill was multifarious; (2) that the suit must be considered a judgment lienor's suit and that the bill was insufficient for that purpose; (3) that the plaintiff has a complete and adequate legal remedy at law for an accounting for rentals due; and (4) that if the suit is treated as a partition suit, the lien creditors are improper parties. This demurrer was overruled and the cause referred to a commissioner to ascertain and report (1) whether the real estate involved "can be partitioned in kind, or whether the same is susceptible of partition only by sale"; (2) the reasonable rental, if any, due from A. B. Holcomb and Myrtle Holcomb to the plaintiff for the use and occupation of his undivided one-half interest in said real estate; and (3) the liens upon the undivided one-half interest of A. B. Holcomb. Leave was granted to all parties to file their respective answers before said commissioner. The defendants, Henry N. Holcomb and G. G. Duff, trustee, the beneficiary and trustee, respectively, under a deed of trust covering A. B. Holcomb's interest in the real estate, demur on substantially the same grounds set up in the demurrer of the Holcombs; and A. B. Holcomb, Myrtle Holcomb, G. G. Duff, trustee, and Henry N. Holcomb filed their joint and separate answers in which they admitted that the said real estate may not be susceptible of partition in kind; deny that the plaintiff was a lien creditor of A. B. Holcomb at the time of instituting this suit; assert that plaintiff cannot have an accounting for said rentals in this proceeding, and claim a setoff against the rents by reason of improvements and repairs, and pray that, if the interest of said A. B. Holcomb in the real estate is sold, Henry N. Holcomb's debt secured by the deed of trust covering the same be allowed as a lien thereon.

The commissioner executed the decree of reference regularly, and reported that the real estate was not susceptible of partition in kind and could only be partitioned by sale and division of the proceeds between the joint owners; that the plaintiff is entitled to recover rent against the Holcombs at the rate of $7.50 per month, amounting to $105, subject to a credit of $13.50 for repairs made by the Holcombs, leaving a net balance of $91.50; that the liens on the one-half interest therein of A. B. Holcomb consisted of certain taxes, the deed of trust debt of Henry N. Holcomb, amounting to $487.12, and a judgment lien in favor of the plaintiff for $89.68, based on a claim other than said rent, rendered October 2, 1939. To this report, the Holcombs excepted on the ground that the commissioner should not have allowed the rent stated, and that he should have reported that the case be dismissed at the cost of the plaintiff. These exceptions were overruled, and a decree entered accordingly, which directed the sale of said real estate and the application of the proceeds from A. B. Holcomb's one-half thereof to discharge the liens reported and decreed, and further, decreed "that the defendants, A. B. Holcomb and Myrtle Holcomb do pay unto the plaintiff, E. L. Morrison, Receiver as aforesaid, the sum of $7.50 per month from and after the 7th day of February, 1940, until such time as their occupancy of the plaintiff's undivided one-half interest in and to the aforesaid real estate is terminated."

The appellants contend that the court erred: (1) In overruling the demurrers; (2) in referring the cause to a commissioner (3) in overruling exceptions to the commissioner's report; (4) in decreeing a sale of the real estate involved; and (5) in directing A. B. Holcomb's share of the proceeds to be applied to...