Pecks v. Chambers.

• Decision Date: 23 February 1875
• Citation: 8 W.Va. 210
• Parties: Pecks v. Chambers.
• Court: West Virginia Supreme Court

8 W.Va. 210

Pecks

v.Chambers.

Supreme Court of Appeals of West Virginia.

February 23, 1875.

1. The eighth section of chapter one hundred and thirty-nine of

the code of 1868 of West Virginia confers upon courts of equity, jurisdiction and authority, to enforce judgment liens against the lands of the judgment debtor, at any time, without reference to I whether the judgment debtor has personal property or estate out of which the judgment might be made by process of execution or not.

2. A court of equity, under the provisions of the thirtieth section of

chapter one hundred and twenty-five of the said code, on overruling a demurrer to a bill, is not authorized to decree against the defendant demurring, for the relief prayed for in the bill until the court shall first have made a rule upon the defendant to answer the bill, fixing therein a, day within, or on which, the answer shall be filed.

3. In decreeing the sale of realty to satisfy a judgment lien, the decree

should give a day to the defendant to redeem the property by paying the amount charged upon it.

Appeal by William S. Chambers, the defendant below, from a decree of the circuit court of Logan county, rendered on the 2d day of May, 1372, in a suit therein pending, in favor of R. W. and J. E. Peck, plaintiffs.

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

The Hon., judge of said

circuit court, presided at the hearing below.

James M. Laidley for the appellant. James H. Ferguson for the appellees.

Haymond, President:

The plaintiffs filed their bill in the circuit court of the county of Logan, in the early part of the year 1872 against the defendant to enforce the liens of two judgments alleged in the bill as having been confessed in the clerk's office of said court in actions of debt, in favor of the plaintiffs, in July, 1870, and April, 1871. Copies of the alleged judgments are filed with the bill. One of the judgments is for $574.30, which should bear interest from the 4th of July, 1870, and also the costs of suit. The other judgment is for $137.95, and the costs of recording the judgment. It is provided on the face of the first named judgment that no execution shall issue thereon for twelve months from its date which was the 4th day of July, 1870. It is alleged in the bill and appears by the exhibits that on the 19th day of February, 1872, a writ of fieri facias was duly issued on the first named judgment returnable to the first Monday in April thereafter, and that on the day the writ so issued it went into the hands of the sheriff of said county, and that he, on the same day, endorsed on said writ in his official capacity the return of "no property found." On the 15th day of February, 1872, a writ of fieri facias was issued on the judgment secondly above named, also returnable on the first Monday of April thereafter, and went into the hands of the sheriff of said county; and afterwards on the said 19th day of February, 1872, the said sheriff, by his deputy, endorsed on the last named writ the return of "no property found." The bill also alleges, and it appears by the exhibits, that the said judgments, respectively, were duly entered in the Recorder's Office, on the judgment lien docket on the 11th day of October, 1870, and the 29th day of August, 1871. The bill also alleges that the said judgments, respectively, constitute liens on the lands of the defendant, and that the defendant is seized, in fee simple, of a tract of land situate on the east side of the Guyandotte river, containing twelve hundred acres, with the reservation of fifty acres, more or less, of the same, and eighty trees, which appears by an official copy of the deed filed, marked G. The bill prays that said land, or so much thereof as may be necessary, be sold to pay said judgments, interest thereon and costs, &c. The said deed G describes the fifty acres, more or less, not conveyed thereby, but reserved, and also the eighty trees. The trees, however, are not described with much certainty.

This suit was commenced on the 20th day of February, 1872, and the bill was filed on the first Monday in March of the same year. The bill does not allege that the defendant has no personal property out of wThich the amount of plaintiff's said judgment debts can be made or that defendant is insolvent except as to his real estate.

On the 2d day of May, 1872, it appears that the cause was heard by the circuit court of said county upon the bill, exhibits, the proceedings at rules, and on the defendant's demurrer to the bill and that the court after argument of counsel overruled the demurrer: And thereupon the court immediately, and in the same decree, directed the defendant's land in the bill mentioned to be sold or so much as necessary for the purpose, to pay said judgments and costs of this suit and appointed a special commissioner to make the sale, one-third of the purchase money to be paid down and the residue in six and twelve months with interest from.the day of sale, &c. And the commissioner is directed to report his proceedings to the court. At the conclusion of this decree and as part thereof are these words, viz: "The defendant has leave to file his answer within ninety days from this date, and the defendant gives notice of his intention to appeal." The decree directs that the land shall be advertised for sale at least thirty days prior to the sale and how the advertisement shall be made. No day is given the defendant by the decree in which to make payment of the judgments, &c. From the said decree of the circuit court the defendant has appealed to this Court and he now here assigns the following as errors in the said decree for which the same should be reversed by thisCourt, viz:

1. That the court erred in overruling the defendant's demurrer to the bill, because it is not sufficiently alleged or shown by the averments of the bill that the defendants had not personal effects out of which the judgments could be made by execution; or in other words, that the plaintiff had not a complete remedy at law in the premises.

2. It was error in the court to decree a sale of the land for the payment of the judgments upon overruling the defendant's demurrer without first giving a rule upon the defendant to answer the bill.

"3. It was error to decree the land to be sold without giving day to the defendant to redeem the land or pay the debt and costs."

The eighth section of chapter one hundred and thirtynine of the Code of this State provides that "the lien of a judgment may always be enforced in a court of equity." The word "always," as employed in this section, may properly be construed to mean "at any time." I have quoted the whole of said eighth section, and it is materially different from the ninth section of chapter one hundred and eighty-six of the Code of Virginia of 1860 which was in force in this State when the Code of this State took effect....