Radbr v. Adamson

• Citation: 16 S.E. 808,37 W.Va. 582
• Court: Supreme Court of West Virginia
• Decision Date: 01 February 1893
• Parties: RADBR v. ADAMSON et al.

16 S.E. 808

37 W.Va. 582

RADBR

v.ADAMSON et al.

Supreme Court of Appeals of West Virginia.

Feb. 1, 1893.

Appealable Decree—Reversal on Motion— Return op Officer—Conclusiveness.

1. Where a decree has been rendered in a cause upon a demurrer to the bill, an answer, a supplemental and amended answer, and replications thereto, upon depositions taken, ami the report of a commissioner, which has been excepted to, the exceptions acted upon, and the principles of the cause have been adjudicated, such decree cannot be reversed upon motion under chapter 134 of the Code.

2. A decree ordering the sale of land is an appealable decree, under chapter 135, § 1, subd. 7, of the Code; and no error in such decree can be reviewed unless a petition for an appeal is presented within two years after such decree was rendered.

3. An official return duly made unon process emanating from the court or its officer, by a sworn officer, in relation to facts which it is his legal duty to state in it, is, as between the parties and privies to the suit, and others whose rights are necessarily dependent upon it, conclusive of the facts therein stated.

(Syllabus by the Court.)

Appeal from circuit court, Jackson county.

Bill by William Rader against Thomas Adamsou, N. B. Armstrong, and others to enforce a vendor's lieu. From the decree entered, defendant Armstrong appeals. Reversed.

P.. F. Fleming, for appellant.

W. A. Parsons, for appellee.

English, P. Previous to the year 1877, Henry J.Fisher sold and conveyed a tract of land containing 900 acres, more or less, situated on the Middle Fork of Reedy, in the county of Roane, to one W. H. Moore, in consideration of the sum of $5,500, which purchase money was to be paid in installments, with interest, and a vendor's lien was retained to secure the payment thereof. On the 19th day of February, 1877, the said W. H. Moore and wife sold and conveyed, with general warranty, to Joshua F. Parish, 180 acres of said 900-acre tract of land, for the sum of $2,250, and retained a vendor's lien to secure the payment of said purchase money. On the 20th day of February, 1877, the said W. H. Moore also sold, to D.S.Cottle, another parcel of said 900-acre tract, supposed to contain 150 acres. On the 2d day of October, 1877, said Joshua F. Parish sold and conveyed to William A. Fouty 61 acres of his 180-acre tract, retaining a vendor's lien; and on the 6th day of April, 1878, said Parish conveyed to N. B. Armstrong, the appellant in this case, 120 acres, being the residue of said 180-acre tract sold him by said Moore, and retained a vendor's lien on said 120 acres to secure the unpaid purchase money, amounting to $935, for which three notes were given by said Armstrong to Parish, —one for $335, due March 1, 1880; one for $300, due March 1, 1881; and one for $300, due March 1, 1882,-und said Parish assigned and transferred said three purchase notes executed to him by said Armstrong to one S. B. Rader. Previous to September 22, 1880, said D. S.Cottle, to whom said W. H. Moore sold said 150 acres of land, placed in the hands of George J.Walker, an attorney at law, certain claims and notes for collection, which, when collected, were to be applied in payment of said Cottle's purchase money to said Moore, and to be paid over to said H. J. Fisher upon the purchase money due from sa'd Moore to Fisher on the entire tract of 900 acres, which notes were collected by said Walker, and the entire net amount so collected was paid over to said Fisher on said Moore's purchase money, and, after crediting said amount and other amounts paid by said Moore, a large balance yet remained due said Fisher on said 900-acre tract; and said Fisher brought a suit in equity, in the circuit court of Roane county, against said Moore, Fouty, Cottle, Parish, Armstrong, and others, to subject said land to the payment of the residue of the purchase money due him, in which suit a decree was rendered directing a sale of said entire 900-acre tract by Charles E. Hogg, special commissioner, which sale was made in the month of March, 1881, by said special commissioner, one Thomas Adamson becoming the purchaser, at the sum of $6.-500, which sale was confirmed by said circuit court on the 17th day of March, 1881.

On the 16th day of March, 1881, an agreement in writing was entered into between said Adamson, Cottle, Armstrong, Rader, and Parish, which reads as follows: "The agreement, Exhibit K, witli plaintiff's bill, is in the words and figures following, to wit: 'Exhibit K. Article of agreement between Thos. Adamson, of the first part, and J. F. Parish, D. S. Cottle, N. B. Armstrong, and S. B. Rader, parties of the second part. Whereas, said party of the first part has purchased the tract of 900 acres of laud sold under decree of the circuit court of Roane county in the equity suit therein pending, wherein H. J. Fisher is plaintiff and VV. H. Moore et als. are de-fondants; and whereas, said J. F. Parish purchased ofW.H. Moore 180 acres of said land, and D. S. Cottle 157% acres of said land of said Moore, and said N. B. Armstrong purchased of said Parish 120 acres of said Parish's purchase of said land, and said Rader holds, by assignment from said Parish, said Armstrong's notes for the purchase money for his purchase, to the amount of nine hundred and thirty-five dollars, —that is, he holds $635.00, and Jno. Matson holds a three hundred dollar note, which said Rader assigned to him; and whereas, said Parish placed in the hands of Geo..I. Walker, Esq., sundry notes and claims to be collected and applied to the payment of isaid Parish's indebtedness, and to be applied on the payment of said Moore's indebtedness to H. J. Fisher for the tract of land first aforesaid: Now, this agreement witnesseth that the receipt of said Walker for said notes and claims is to be assigned and turned over to said Adamson, and the money mentioned therein is to be paid to said Adamson, who is to credit the amount of money that he may receive therein on the indebtedness of said Parish for the unpaid purchase money of his said tract of land according to his contract with said Moore; and, if said contract is not complied with within twelve months, then said N. B. Armstrong may pay off and discharge said Parish's contract, and the money that he may have to pay shall be a credit on his notes to said Parish for his purchase of the tract of land aforesaid; and, if he has to pay more than the amount of his indebtedness for unpaid purchase money, then, upon the payment of the unpaid purchase money indebtedness of said Parish for his said tract of 180 acres of land, said Adamson is to convey to said N. B. Armstrong said tract of 180 acres of land free from any lien of the judgment of Perry Moore against said W. H. Moore; and. if the amount that said Armstrong may have to pay is less than the amount of his indebtedness on his purchase, then he is to pay that residue to the assignee of said Parish; and upon the payment of the same said Adamson is to convey to said Armstrong said 120 acres of land free from the lien of the said judgment, and is to convey the residue. 60 acres, to said Parish; and said Rader is to dismiss hissuit against said Armstrong in the circuit court of Roane county, but said dismissal is not to impair the lien of the said Rader on said Armstrong's land. And it is further agreed that said D. S. Cottle is to pay to said Adamson the unpaid purchase money for his said tract of 157 1/2 acres of land according to his contract with said Moore, and upon the payment of thesametosaid Adamson, according to the terms of the said agreement, in full, said Adamson is to convey to said Cottle said tract of 157 1/2 acres free from the lien of the judgment aforesaid; and, if said Armstrong shall not be required to pay to said Adamson to the amount of his indebtedness for said land purchased by him, then there shall be a lien on his said land for the amount he may not have to pay Adamson as aforesaid. And It Is further agreed that, if said Adamson shall fail to collect and receive from the said Walker the amount of the notes and claims so placed in the hands of said Walker by the said Parish in the time aforesaid, then the said N. B. Armstrong shall be permitted to pay what shall remain unpaid on the purchase money which the said Parish owes the said W. H. Moore, after deducting what the said Parish has already paid the said Fisher, and the proceeds of the said notes and claims which may be collected and received as aforesaid, and shall be entitled to acrediton the purchase money he owes to the said Parish to the extent of the amount so paid by him. Witnesseth the following signatures: [Signed] Thos. Adamson. D. S. Cottle. N. B. Armstrong. S. B. Radkr..1. F. Parish. By W. A. Parsons. March 16th, 1881. [A copy of the original.]"

After the assignment by said Parish to S. B. Rader of the three notes given by Armstrong to Parish, the said Rader assigned oue of said notes to one John Mat-son, —the same being the one last falling due, —and In October, 1882, the said Mat-son filed a bill in the circuit court of Jackson county against N. B. Armstrong, J. F. Parish, S. B. Rader, George Rader, John M. Rader, and Thomas Rader, seeking to enforce the vendor"s lieu against said 120-acre tract of land, vhich suit was defended by said Armstrong, and resulted in a decree dismissing the plkintiff's bill, and after said decree was entered against said Matson, dismissing his bill, the said note was withdrawn, and filed by the plaintiff as an exhibit in this cause, with the other notes executed by said Armstrong to said Parish; and the court is asked to subject said 120-acre tract of land to the payment of said three notes under said vendor's lien. On the 24th day of November, 1875, W. H. Moore confessed a judgment in favor of one Perry Moore for the sum of $3,671.88, with interest and costs, which judgment was docketed in the clerk's office of the county court of Roane county on the 26th day of November, 1875,...