Neeley v. Ruleys.

Decision Date02 October 1885
Citation26 W.Va. 686
CourtWest Virginia Supreme Court
PartiesNeeley v. Ruleys.

1. In a suit to enforce a vendor's lien it is not error to decree a sale of the land, on which the lien for the purchase-money is reserved, without other lienors being made parties and the amount and priorities of their liens settled. (p. 688)

2 In a suit to enforce a vendor's lien the defendant tiled an answer averring that there were many judgment-liens, against the plaintiffs lands, and that he did not have other lands beside the tract sold defendant sufficient to discharge said liens but did not aver, that the plaintiff was insolvent. The court did not err in refusing to set aside an order of sale on this ground, nor in refusing to send the cause to a commissioner to enquire into the matters set up in the answer (p. 690.)

3. A decree for the sale of land without providing therein that, before

the commissioner shall sell the land, he shall execute a bond in a penalty prescribed by the court, is erroneous and for such error will be reversed. (p. 691.)

4. A plaintiff in a suit to enforce a vendor's lien can not waive the

bond required by the statute of the commissioner appointed to make such sale (p. 692.)

The opinion of the Court contains a statement of the facts of the case.

R. S. Blair for appellant.

Edwin Maxwell for appellee.

Johnson, President:

At February rules 1885 the plaintiff filed his bill in the circuit court of Doddridge county to enforce his vendor's lien on a tract of land sold and conveyed to defendant. On March 20, 1885, a decree was rendered on the bill taken for confessed to sell said land for the payment of the purchasemoney, and in the decree the plaintiff "expressly waived bond and security from the commissioner" appointed to sell the land. On April 6, 1885, at the same term the defendants appeared and moved to set aside the said decree ordering the sale of said land, which motion the court overruled. Thereupon the defendants tendered their answer and demurrer to plaintiff's bill and asked leave to file the same, which was ordered to be done; and the complainant filed his replication in writing thereto, to the filing of which the defendants objected, which objection was overruled. The defendants tendered a bill of exceptions to the refusal of the court to set aside the decree and to the refusal to enter a decree prepared by the defendants' counsel, showing that the court refused to set aside the decree and to refer the cause to a commissioner, &c, which bill the court refused to sign, therefore the defendants' counsel tendered a bill of exceptions to the refusal of the court to sign the first bill of exceptions, which embraced the first bill; and this the court signed.

The answer of defendants exhibits the abstracts of a number of docketed judgments against the plaintiff and avers " that the lands now owned by the complainant are not sufficient within themselves to liquidate and discharge the liens hereinbefore set forth, and therefore that redress would have to be had against the land sold to respondent." It avers the readiness of the defendants to pay the purchase-money due," if the said liens are released by the creditors of said Neely, and that they ought not to be compelled to pay said money until the complainant removes the aforesaid liens." It further avers, that no decree of sale of the land can be had until all the liens existing against the same shall have been ascertained by a convention of the creditors before a commissioner appointed by the court, and asks a reference to a commissioner to ascertain the amount of all the real property owned by plaintiff and all the liens existing against the same, and what liens exist against the property purchased by defendants, and asks that the purchase-money due from respondents may be applied to the discharge of the liens against the land sold to them, so as to secure the land bought by them and save them harmless.

The special replication sets up the facts, that many of the liens mentioned in the answer have been discharged, and that others, if not discharged are barred by the statute ot limitation. It admits that one lien, that of the State v. John Donohue and sureties, of whom complainant was one, will have to be paid in part by plaintiff, but that he has ample property to pay such part, without the property sold to defendants, &c.

From said decrees the defendants appealed.

The first assignment of error is the refusal to set aside the decree of sale upon the filing of the answer at the same term, at which the decree was entered, because the answer showed that there were many judgment-liens against the lands of the plaintiff, and such lienors should have been made defendants to the bill. There is nothing in this assignment, because in a suit to enforce a vendor's lien it is not error to decree a sale of the land, on which the lien for the purchasemoney is reserved, without ascertaining the amount of other liens and their priorities. (Cunningham v. Hedriek, 23 W. Va., 579.) It was not necessary therefore, that such lienors should be made parties to the suit. The doctrine applicable to creditors' suits does not apply to a suit to enforce a vendor's lien.

It is also objected, that the court failed to pass upon the demurrer. The appellants were not predjudiced by this, as an inspection of the bill will show, that it is sufficient, and that the demurrer ought to have been overruled.

The third assignment of error is, that the court permitted the special replication to be filed to defendants' answer. Special replications are discountenanced in chancery pleading, and it is error to permit them to be filed except as the statute requires in certain cas...

To continue reading

Request your trial
19 cases
  • Rosier v. McDaniel
    • United States
    • West Virginia Supreme Court
    • February 8, 1944
    ...66 W. Va. 227, 66 S. E. 331; McClaugherty v. Croft, 43 W. Va. 270, 27 S. E. 246; Long v. Perine, 41 W. Va. 314, 23 S. E. 611; Neeley v. Ruleys, 26 W. Va. 686; Cunningham v. Hedrick, 23 W. Va. 579. An improper reference to a commissioner in such suit, is not only superfluous, but injurious a......
  • Leonard v. (Brannon
    • United States
    • West Virginia Supreme Court
    • December 12, 1890
    ...Va. 791; 75 Va. 407; 10 S. E. Rep. 396; 12 AY Va. 99; 24 AY. Va. 586; Code (1868) c. 139, s. 8; Code (1887) c. 139, s. 7; 23 W. Va 579; 26 W. Va. 686; 32 W Va. 272; Chitt. Eq. PI. § 389 et seq.; Sands Su. Eq. (1st Ed.) §§ 451-462; Dan. Ch'y PI. & Pr. (Perk. Am. Ed.) c. 34; 17 How. 145; 3 Sa......
  • Hart v. Larkin
    • United States
    • West Virginia Supreme Court
    • November 16, 1909
    ...the statement that equity will not enforce payment of purchase money if a suit is pending "to subject it (the land) to a lien." Neely v. Ruleys, 26 W.Va. 686, and cases make insolvency of the grantor essential where there are mere liens for equity relief. I think I better expressed the rule......
  • Grant v. Cumberland Valley Cement Co.
    • United States
    • West Virginia Supreme Court
    • October 31, 1905
    ...bills to set aside fraudulent conveyances and bills to enforce vendors' liens. McClaugherty v. Croft, 43 W.Va. 270, 27 S.E. 246; Neeley v. Ruleys, 26 W.Va. 686. But in such cases, and, indeed, all cases, it seems that the legal title be before the court. Turk v. Skiles, 38 W.Va. 404, 18 S.E......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT