Nbbly et al. v. Jones el al.

• Decision Date: 01 May 1880
• Citation: 16 W.Va. 625
• Court: West Virginia Supreme Court
• Parties: Nbbly et al. v. Jones el al.

16 W.Va. 625

Nbbly et al.

v.Jones el al.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1880.

1. A stranger, who pays the debt of another without his request or authority, cannot sustain a suit against the debtor, unless he has ratified the act of the stranger by promising to repay him or in some other manner.

2. If such payment by a stranger is neither authorized nor ratified by the debtor, it will not be held to be a discharge of the debt.

3. If such payment by a stranger is neither authorized nor ratified by the debtor, the stranger may sue the debtor at law in the name of the creditor for his own use; but the debtor may by pleading or relying on the payment of the stranger ratify it, and such ratification being the equivalent of a previous request, the debt will be thereby discharged, and the debtor will be liable to be then sued by the stranger for money paid for him at his request,

4. A stranger, who pays a debt without the request or authority of the debtor, when the payment is not afterwards ratified, may, if he chooses, bring a suit in equity stating this fact and praying, that, if the payment be not ratified by the debtor, the debt may be enforced in his favor as the equitable owner thereof, or, if the payment be ratified by the debtor, that the court will decree to the stranger the re-payment of the amount so advanced by him for the use of the debtor; and the court will give the one relief or the other prayed for.

5. The stranger, when he pays the amount of the debt to the creditor, may without the consent of the debtor take an assignment of the debt and enforce it against the debtor; and if, when he pays the amount, it is agreed between the creditor and him thatthe creditor will assign him the debt, though no actual assignment be made, the stranger will be regarded as the equitable assignee of the debt, and the transaction will be considered equivalent to the purchase of the debt.

6. If a sheriff, who has had or who has an execution in his hands, pays the debt to the creditor, whether he takes an assignment of the judgment or not, will have the same rights and remedies against the debtor that a mere stranger would have. But quosre: Does not public policy forbid that such sheriff should have the same rights and remedies as against subsequent judgment-creditors, who have acquired liens on the debtor's lands, or against a purchaser of such lands for valuable consideration without notice that the sheriff set up such a claim.

7. If the court overrules a demurrer to a bill, and gives the defendant a certain time in which to answer the bill, it cannot properly order a reference of the cause to a commissioner, to ascertain the amount of the plaintiff's demand, till the time has elapsed which was given tlje defendant to answer; nor can it then order such reference, if the answer is filed and denies all the facts on which the plaintiff's claim is based. If such answer be filed, no such reference can properly be made, till the plaintiff by evidence has proven that he has a demand against the defendant.

8. A creditor, who brings suit against a debtor to enforce against his lands a judgment-lien, should sue on behalf of himself and all other judgment-creditors excepting those made defendants, and he should make formally defendants in the suit all creditors who have obtained judgments in the courts of record in the county or counties in which the debtor owns lands sought to be subjected to the payment of the judgments, also all creditors who have obtained judgments in courts of record or before justices in any part of the State, and have had them docketed on the judgment-lien docket of said county or counties.

9. If all the judgment-creditors are not made parties to such a suit either formally or informally, and this is disclosed in any manner by the record, the Appellate Court will reverse any decree ordering the sale of the lands or the distribution of the proceeds of such sale.

10. But if all the judgment-creditors are made parties'to such a suit informally by being called by publication before a commissioner under a decree of the court to present their judgments, then this Court would not reverse a decree ordering a sale of the lands of the debtor, or the districting of the proceeds of such sale, merely because the record disclosed that some of the judgment-creditors had not been made formal defendants, who ought to have been so made, unless it appears that objection was made to the rendering of such decree in this account in the court below, before such decree was entered.

11. If in such a bill the creditor should fail to sue on behalf of himself and all other judgment-creditors, but the court should afford to all judgment-creditors an opportunity to have their judgments audited before a commissioner by directing a publication to be made, call. ing on them to present their judgments for auditing, the Appel-late Court will regard this as a creditor's bill, the same as if the plaintiff in his bill had sued on behalf of himself and all other judgment-creditors except those made defendants.

12. The assignor and assignee of a judgment may be properly made co-plaintiffs in a chancery suit to enforce the lien of it on the debtor's lands.

Appeal from and supersedeas to three decrees of the circuit court of the county of Harrison, rendered, the first on the 28th day of October, 1859, the second on the 5th day of January, 1876, and the third on the 2d day of June, 1877, in a cause in said court then pending, wherein Floyd Neely and others were plaintiffs, and Thomas S. Jones and others were defendants, allowed upon the petition of the said Jones.

Hon. Charles S. Lewis, late judge of the second judicial circuit renders the decree appealed from.

Green, President, furnishes the following statement of the case:

Floyd Neely, Adam, J. Gain, John Sherwood and Joseph Jeffrey in April, 1858, filed their bill in the circuit court of Doddridge county against Thomas S. Jones and Silas Cain. In this bill they state, that (kin recovered a judgment against Jones in the county court of Doddridge county in March, 1855, for $66.21 and interest thereon at the rate of fifteen per cent, per annum and costs. At the same time in the same court Sherwood recovered a judgment against Jones for $135.50 with interest at the rate of fifteen per cent, per annum and costs; and in November, 1855, in the same court Jeffrey recovered a judgment against Jones and Cain for $150.00 and interest and costs; that on each of these judgments exetions issued, which were placed in the hands of the plaintiff, Neely, sheriff of Doddridge county; that on the execution on the first of these judgments Jones paid in two payments $25.26, on the second $40.00, and on the third $40.00 in two payments; and Jones and Cain being both insolvent the executions were all returned "no property found, out of which to make the balance of these executions;" that the sheriff, Neely, paid the balance on these several judgments to the plaintiffs in them; and that Jones owned one tract of land in said county of one hundred and fourteen and one half acres; and the sheriff, Neely, claims that having paid these several judgments he has a right to be substituted to the rights of his coplaintiffs in said judgments; and he asks to have these judgments paid by a sale of this tract of land. Before the defendants appeared, the plaintiffs in October, 1858, filed an amended bill, in which it is alleged that at the several times the several payments were made by the sheriff, Neely, to his co-plaintiffs of the amounts of the balance on their several judgments, they severally in consideration of such payments agreed to assign and transfer to the plaintiff, Neely, their respective judgments against Jones and Jones and Cain, and such agreements to make such transfers constituted the inducement and the consideration for Neely to make these payments; and that in pursuance of these agreements assignments have been executed. They are filed with the amended bill, but bear no date.

The amended bill claims, that by these agreements the sheriff, Neely, had a right to resort to all the securities his co-plaintiffs had against the defendants, and to subject this tract of land of the defendant, Jones, to the payment of the balance on these judgments for his, Neely's, benefit.

To this bill and amended bill the defendants, Jones and Cain, demurred, and on October 28, 1859, the court rendered this decree:

"This day came the parties, by their counsel, and thereupon the defendants, by their counsel, appeared and filed their demurrer to the complainants' bill and amended bill, which was set down for argument, and the court having maturely considered the matters arising on the said demurrer, is of opinion and doth decree that the same be overruled, and that the defendants answer the said bill and amended bill within sixty days; and, on motion of the complainant, it is adjudged, ordered and decreed that this cause be referred to one of the commissioners of this court to ascertain and report the amount due the complainant, F. Neely, on the debts mentioned in the papers in this cause, also the annual rents and profits of the real estate mentioned and referred to in this cause or possessed by the defendants, together with its valuation, showing a full description of the same; that such commissioner also report such other matters as may be deemed pertinent by himself or required to be specially reported by any of the parties to this suit; that he also report such other liens, by judgment or otherwise, as exist against said real estate."

The commissioner gave the parties to this cause ten days' written notice that he would execute this decree on March 4, 1864. He published no notice to creditors, who had liens on this tract of land, to appear and present their claims. He executed the order in about ten days, and on March 15, 1864, he reported: That the balance due from Jones on the Gain judgment as of ...