Riggs v. Armstrong et ah.

• Decision Date: 05 April 1884
• Citation: 23 W.Va. 760
• Parties: Riggs v. Armstrong et ah.
• Court: West Virginia Supreme Court

23 W.Va. 760

Riggs

v.Armstrong et ah.

Supreme Court of Appeals of West Virginia.

Submit tod

January 30, 188-i Decided April 5, 1884,

1.The province and only legitimate use of a cross-bill is to aid in the defence of the original suit, and the matter of it cannot be more extensive than the defence to the original bill. When it departs entirely from the object of the bill and introduces new matter nowise connected therewith, and does not establish a good defence, it should not be allowed, or if allowed, should be dismissed on the hearing, (p. 707.)

2.It is the disposition of courts of equity to regard substance rather than mere form; hence in this case a bill tiled as a cross-hill which could not be sustained as such, but having all the elements of an original bill, was held to be sufficient as an original bill and treated as such. (p. 708.)

3.It is not necessary to the validity of a trust-deed, that it should truly state the debt it is intended to secure; but it may stand as a security for the real equitable claims of the cestui que Punt, if they appear to he bona fide and are satisfactorily proven to be the debts intended, in fact, to be secured, (p. 771.)

4. A trust-deed which recites that A., the cestui que trust, has, in pursuance of certain specified contracts, previously entered into between the parties, and verbal understandings and arrangements, advanced to B. and C, the grantors, at divers times large amounts of money to assist them to purchase staves and deliver them according to the terms of said contracts, and the said B. and C. being desirous of securing A. for the money advanced and paid to them, amounting to about twelve thousand dollars, and to secure him for any future advancements of money that may be made by him on said staves, they, the said B. and C, in consideration of the premises, conveyed to D., trustee, "all the merchantable oil-barrel staves" owned by (hern, in trust to secure to A. said twelve thousand dollars already advanced and for any money that might be thereafter advanced; the said B. and 0. failing to deliver staves enough to pay the money advanced before the date of said deed. Held:

I. The said deed operated as a valid security for the balance found due to A. on account of their failure to deliver enough staves to pay for said advancements, the said balance being much less than twelve thousand dollars, the sum mentioned in the deed; and

II. The terms "merchantable oil-barrel staves" used in said deed, according to the preponderance of the evidence and the general definition of said terms, embraced both first and second class oil-barrel staves, (p. 772.)

Snydee, Judge, furnishes the following statement of the case:

On August 12, 1881, John A. Armstrong and the Monitor Towboat and Lumber Company two of the defendants to the original bill in the above entitled cause then pending in the circuit court ot Pleasants county, presented to the judge of said court in vacation thier cross-hill praying, among other matters, an injunction to restrain W. W. Hall, trustee, and the Pittsburgh Stave Company from selling the staves in the cross-hill mentioned, which injunction was granted.

The plaintiffs in the cross-bill state therein that the said orignal suit of Riggs, in which this cross-bill is filed, was commenced July 8, 1881, and that they, the cross-plaintiffs, Simpson Jones and Ralph Hanes partners as Jones & Hanes, R. TI. Gillespy, W. W. flail, trustee, the Pittsburgh Stave Company and other named persons were made defendants therein. They state at considerable length the averments of Riggs' hill the substance of which, so far as it is pertinent to the questions presented to this Court, is that Jones & Hanes.owned large quantities of real and personal property; that they were merchants and dealers in staves in Pleasants county; that they and Riggs were partners as A. P. Riggs & Co. in a store at St. Marys in said county; that Riggs had obtained a judgment against Jones & Hanes for one thousand one hundred and ninety-eight dollars which was unpaid; that the real and personal property ot Jones & Hanes was encumbered by a number ot trust-deeds two of which were alleged to be void for the want of proper recordation; that in one of the other of said trust-deeds W. W. Hall was trustee to secure the Pittsburgh Stave Company and in two others R. H. Gillespy is trustee to secure various debts among them, debts due to the cross-plaintiffs, John A. Armstrong and the Monitor Towboat and Lumber Company; that it is alleged that said Gillespy is irresponsible, and praying that he be required to give security as such trustee; that he be enjoined from interfering with the business of A. P. Riggs & Co.; that the trust-deed which conveys the interest of Jones & Hanes in the assets of A. P. Riggs & Co. be set aside as to such interest; that the other trust-deeds exhibited with said bill be declared void as to the plaintiff Riggs and the other creditors of Jones & Hanes, and that upon the failure of Gillespy to give security as trustee, a receiver be appointed to take possesion of and sell the property of Jones & Hanes, &c.

The cross-plaintiffs then aver that on July 12, 1881, they filed their joint answer to said bill and moved the court to dissolve the injunction granted upon said Riggs' bill which motion the court continued.

They further aver that Jones & Hanes being indebted to them and the said John A. Armstrong having endorsed notes for their accommodation which he has since paid and now holds, (which indebtedness it is averred is fully set forth in their answer to the original bill) the said Jones & Hanes, on April 8, 1881, executed to R. H. Gillespy, trustee, a trust-deed to secure to them said indebtedness, conveying certain property therein mentioned and among it the one undivided half of a stock of goods and safe belonging to Jones & Hanes then in the store-house occupied by A. P. Riggs & Co. at St. Marys, and that for the same purpose Jones & Hanes executed to same trustee, on April 27, 1881, another trust-deed on the same and other property; that by said trust-deeds Jones & J lanes conveyed to said Gillespy, trustee, a large number ot staves including all the staves hereinafter mentioned as advertised by W. W. Hall, trustee, for sale; that by two contracts entered into between Jones & Hanes and the Pittsburgh Stave Company dated respectively September 22, 1879, and March 17, 1880, it was agreed that Jones & Hanes should sell to said stave company a specified number of staves of the kind and quality therein described; that said stave company at various times during the currency of said contracts to assist Jones & Hanes to execute the same paid to them in advance for portions of said staves without any agreement that the money so paid would be repaid, and they aver that at no time have Jones & Hanes, since the making of said contracts, owed any money debt to said stave company or been under any other liability to it than to deliver staves according to the terms of said contracts.

They further aver that, on November 27, 1880, Jones & Hanes executed a trust-deed to "W". W. Hall, trustee, not recorded until April 9, 1881, conveying to him all the merchantable oil-barrel staves owned by Jones & Hanes in the counties of Pleasants, Tyler and Ritchie, and all such as may come into their possession on or before April 30, 1881, and some other property, in trust, to secure the said Pittsburgh Stave Company in the sum of twelve thousand dollars for money already advanced, and which might be thereafter advanced. They then aver that said trust does not constitute a valid lien as against them or said Gillespy, trustee, on said staves, and set out the reasons and grounds on which they assert said trust is invalid as to them with great elaboration and prolixity, and aver that said Hall, trustee, has advertised the staves conveyed to Gillespy, trustee, as aforesaid, for the use of the cross-plaintiffs, under the said trustdeed of November 27, 1880, to him as trustee for the use of said stave company.

They make all the parties to the original bill of Riggs, except themselves, defendants to this cross-bill, and pray that the title of Gillespy, trustee, to the one half of the goods of the firm of A. P, Riggs & Co. may be affirmed, that said goods may be divided, that a receiver be appointed to take possession and dispose of same; that the business of said firm be settled and Riggs enjoined from interfering with the said goods, &c.

They also pray that said W. W. I fall, trustee, may be enjoined from selling any of the staves advertised by him under said trust-deed of."November 27, 1880, and that said deed may be declared invalid as to them and said Gillespy, trustee, so far as it affects said staves, and, if not so declared, that its operation may be confined to such, staves as are merchantable, and that they may bave general relief.

The defendant, the Pittsburgh Stave Company, filed its demurrer to said cross-bill and, among other grounds, assigned as causes for demurrer the following:

1st. This defendant is misjoined as a defendant with A. P. Riggs & Co., and Jones & Hanes and others in relation to the judgment, the partnership accounts and other matters in which it has no interest;

2d. The bill is multifarious in joining the partnership business and other matters of A. P. Riggs & Co., and Jones & Hanes with the controversy between the plaintiffs and this defendant as to its rights under the trust-deed of November 27, 1880; and

3d. There is no equity in the bill.

The said stave company also tiled its answer to said crossbill.

The cause having been transferred by an order of the circuit court of Pleasants county to the circuit court of Wood county, it was, on May 5, 1882, by consent of parties, docketed in the latter court.

On May 28, 1882, the cross-plaintiffs, by leave ot the court, filed in the cause.1, what they style, "an amended and supplemental cross-bill" in which, after correcting some formal...