Rose v. Et Ux.

• Decision Date: 09 April 1881
• Citation: 17 W.Va. 649
• Court: West Virginia Supreme Court
• Parties: Rose & Co. et al. v. Brown et ux.

17 W.Va. 649

Rose & Co. et al.

v.Brown et ux.

Supreme Court of Appeals of West Virginia.

Decided April 9, 1881.

1. Where the question is, whether it is proper to sell or reni real estate to pay the debts charged upon it, and the defendant "asks, that it be rented instead of sold," and the complainants "assent thereto," fc and the court decrees thereupon, that it shall be rented instead of R sold; this is a consent decree as to such question.

2. After the termination of the term, at which a consent decree was entered, it can never be set aside, except by consent, by any proceedings in that cause; though it had-been entered by mistake or by the fraud of one of the parties. Maniort v. Fahy, 11 W. Va. 482.

3. Where a decree directs property to be sold or rented, without directing whether it shall be offered as a whole or in parcels, the commissioner must in the interest of the parties to the suit, in his discretion offer it for sale or rent in that manner, which will in his judgment bring the most money.

Appeal from and supersedeas to two decrees of the circuit court of the county of Jefferson, one made on the 20th day of November, 1877, and the other on the 26th day of April, 1878, in a cause in said court then pending, wherein J. Rose & Co. and others were plaintiffs and J. B. Brown and wife were defendants, allowed upon the petition of said defendants.

Hon. John Blair Hoge, judge of the third judicial circuit, made the decrees appealed from.

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

This cause has been once before this Court and decided, 11 W. Va. 122; and the court held, that the property conveyed to the wife of Jacob B. Brown by her husband was liable for his debts. But the court reversed the decree of the court below on the ground principally that no day was given in the decree for the defendants to redeem the property. "While the opinion of the court showed, that the defendants would have had the right to have the court ascertain, whether the defendants" property would in a reasonable time rent for sufficient to pay the liens charged upon it, and if so, it would have been the duty of the court to decree a rental of the property instead of a sale thereof, yet the court did not err in this cause in not doing so, as it was not asked to do so by the defendants; but that when the cause was remanded to the circuit court, the court should pass upon that question, if asked to do so. The mandate of this court instructed the circuit court, "if it be asked to do so, to provide for the payment of the debts charged on the real estate in the bill and proceedings in this cause mentioned out of the rents and profits of said real estate, if adequate thereto in a reasonable time, if not, then to decree a sale of so much of said real property as will discharge the debts charged thereon." It appears from the commissioner's report in the first record, that the debt on said property amounted, principal and interest, on March 1, 1876, to $1,472.60, and that the annual rental value of said property was $475.00.

After the cause was remanded, on the 20th day of November, 1877, the circuit court by its decree again confirmed the said commissioner's report, and the defendants " asking this court, that the said real estate be rented instead of being sold, and the complainants assenting thereto, it is adjudged, ordered and decreed, that unless the defendants, Emily Brown and Jacob B. Brown, or either of them, or some one for them shall within sixty days from this date pay to George A. Porterfield, general receiver of this court, to the credit of this cause the sum of $1,472.60, with interest on $1,304.17, part thereof, from March 1, 1876, until paid, the amount of the debts ascertained by commissioner, Cleon Moore, which are properly chargeable on the said real estate, then Eugene Baker, sheriff of Jefferson county, is directed to rent said real estate for one year from the 1st day of April, 1878, and from year to year thereafter until the further order of this court at public auction to the highest bidder," &e.

On the 28th of March, 1878, the said Eugene Baker filed his report, showing that he had rented the whole of said property together for one year to George Baylor and Joseph Trapnell for the sum of $250.00. The report was excepted to for several reasons, one of which was, that the price was inadequate.

The court by its decree rendered on the 8th day of April, 1878, on the exceptions to the report said:" On consideration whereof the court being of opinion, that the renting of the property in the proceedings mentioned was made for an inadequate price, also that the said property ought to have been rented in separate parcels, therefore it is here ordered and decreed, that the exceptions to the said report be sustained," and refused to confirm the report.

On the 26th of April, 1878, the cause was again heard " and the plaintiffs by their counsel moved the court to set aside so much of the decree of the October term, 1877, as directed the sheriff and...