Sandusky v. Faris
| Decision Date | 16 March 1901 |
| Parties | SANDUSKY v. FARIS et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Where an injunction has been granted upon a bill in equity and answers to the bill and exceptions to the answers have been filed at rules, the judge, upon the hearing in vacation of a motion to dissolve the injunction, may examine the bill answers, and exceptions, and, if the exceptions are not well taken as to matters affecting the equitable ground upon which the injunction rests, he may disregard them.
2. The plaintiff in the injunction cannot deprive the defendant of the benefit of his answer upon the hearing in vacation of his motion to dissolve, or postpone it until the next term, by so filing exceptions to the answer; for the motion and the exceptions may be taken up and heard at the same time and in vacation.
3. An allegation of the bill claimed not to be sufficiently answered is the only proper basis for an exception to an answer for insufficiency, and an exception which amounts to no more than a criticism of the answer, without setting forth any allegation of the bill and charging that as to it the answer is insufficient, will be disallowed as not well taken.
4. When, in an answer, nearly all the material allegations of the bill upon which the prayer for relief is predicated are controverted in detail, and the respondent avers that he has aimed to answer fully each and every allegation, and believes he has done so, but, by way of general answer to all such allegations as have not been admitted or denied, says they are untrue, and demands proof of the same, such general denial, while not sufficient to constitute good pleading, if not properly excepted to in the court below will be considered by the appellate court as controverting such parts of the bill as are not specifically replied to.
5. The failure of a trustee in a deed of trust, who has voluntarily given a bond to faithfully perform his duty as such trustee and account for and pay over all money that may come into his hands in the execution of such trust, to append, to his notice of a sale to be made under the deed of trust, a certificate of the clerk that such bond and security has been given, is not sufficient ground for enjoining the sale.
6. The publication of a notice of sale under section 7, c. 72, Code is complete on the fourth issue of the paper containing it, if it be published in the paper once in the each successive week, though the four weeks have not actually elapsed between the dates of the first and last publication; and if a copy of such notice so published be posted at the front door of the court house of the county in which the sale is to be made, on the day of its first publication in the paper, it is sufficiently posted.
7. When the grantor in a deed of trust conveys all his property to a trustee for the benefit of his creditors, with power to sell the same immediately, and authorizes the trustee, after paying the expenses of the trust and discharging the liens on the property, to make a pro ra ta distribution of the proceeds of the trust property among the grantor's creditors, and reconvey to him whatever may remain unsold in case the property shall be more than sufficient to pay all the debts, such deed is absolute, and the conveyance is to a trustee for the purpose of raising a fund with which to pay debts, as distinguished from a deed of trust in the nature of a mortgage to secure the payment of debts, and amounts to an appropriation of the property, so far as may be necessary to the accomplishment of that purpose.
8. The grantor in such deed thereby consents to an immediate sale of such property, and, such consent being analogous to that given by a debtor in a decree directing a sale of his property made and entered with his consent, he will not be permitted to enjoin such sale merely because the amounts of his debts, their priorities, and the persons to whom they are due and owing have not been ascertained, the amount to be raised by such sale is uncertain, and the legal title is outstanding in trustees in prior deeds of trust.
Appeal from circuit court, Harrison county; J. M. Hagans, Judge.
Bill by James B. Sandusky against Samuel S. Faris and others. Decree for defendants, and plaintiff appeals. Affirmed.
Lewis C. Lawson and M. G. Sperry, for appellant.
C. W. Lynch, W. Scott, and John Bassel, for appellees.
On the 6th of January, 1898, James B. Sandusky, being heavily indebted to various persons, but not in more than the aggregate sum of $23,000, according to his contention executed a deed of trust, in which his wife joined, conveying all of his real and personal property in the counties of Ritchie and Harrison to Samuel Faris, in trust to secure the payment of certain liens on said Sandusky's lands therein specified, in the order of their priority, and the other judgments, debts, and liabilities of said Sandusky; reserved to himself the right to collect and use the rents arising out of any of the houses on any part of the real estate conveyed, the right to operate the mills therein mentioned and enjoy the profits arising therefrom, and the right to use and occupy free from rent one of the buildings on said real estate until such time as a sale thereof should be desired by the trustee; and authorized the trustee to take immediate possession of the property so conveyed, subject to said reservations, and proceed to make disposition of the same in such manner as he might deem best for all concerned; declaring it to be the intention thereby to grant unto the trustee free discretion in the execution of the authority granted him, and to allow him to proceed at once to exercise the power thereby vested in him, and to institute such suit or suits as he might deem necessary to protect the said interests, and to do and perform any and all acts, compromise, prosecute, or defend any suit now or hereafter brought concerning said Sandusky's property or interest, sell and convey said real estate or any part thereof, and to lay it off into lots or parcels, lay off streets, alleys, etc., and, if in his judgment the interests of all concerned will be promoted thereby, cause said real estate to be surveyed, advertised, and any sale to be made by him for such length of time, and sell on such terms, as he might deem best, and apply the proceeds of such sale to the payment of such liens in the order of their priority, and, after such liens should be extinguished, then pro rata on all other debts and liabilities of said Sandusky, and, after the payments of such liens and debts in full out of the proceeds of such sales, the trustee should reconvey to said Sandusky whatever should remain unsold of such real or personal estate. The property conveyed by this deed of trust consists of a tract of land of about 400 acres, situated near the town of Bridgeport, in Harrison county, a portion of which is in said town, on which there are 11 one and a half story houses, said to have cost about $400 each, renting for about $3 per month, all of which tract is said to be worth $16,000; a house and lot in said town known as the "John Payne Property," and alleged to be worth $450; another 2-story frame house, and about an acre of land therewith, known as the "W. E. Hill Property," and alleged to be worth $1,200; a shop and lot in said town purchased of said Hill for $365; a gristmill and sawmill in said town, and land upon which same are situated, alleged to have cost $7,000; about 551 acres in Ritchie county, of which about 400 acres are virgin forest, well timbered, all of which tract is charged to be worth $8,265; one-half of a tract of 372 acres in Ritchie county, of which 275 acres are improved and in grass, claimed to be worth $2,800; a tract of about 210 acres in Harrison county, known as the "James Coplin Lands," claimed to be worth $7,000; and personal property, not itemized, claimed to be of the value of $2,000. The only liens specified in the deed of trust of January 6, 1898, are a judgment for $510.77, in favor of James McDermott, dated September 17, 1896, on which it recites $300 had been paid, and a judgment for $339.36, dated May 11, 1897, and costs, in favor of Otto D. Barnes, but the plaintiff admits in his bill that there are other liens and unsecured debts due and owing from him. The James A. Coplin land was incumbered by a lien created by deed of trust executed by Coplin and wife and his mother, dated August 6, 1888, to Kelso Pell, trustee, to secure to said Sandusky the payment of $5,500, in consideration of his agreeing to pay numerous debts due from Coplin to divers other persons. Said sum of $5,500 was evidenced by a note executed by Coplin to Sandusky, and he assigned it to the West Virginia Bank as collateral security for debts and obligations due to it from Sandusky, amounting now, as he claims, to about $5,000, and said bank still holds said note, and the deed of trust has never been released. After these transactions, Coplin, by deed dated November 27, 1895, conveyed the land to Sandusky for and in consideration of all the debts then owed by him to Sandusky, amounting to about $6,000. On the 12th of August, 1895, Sandusky and wife, by deed of trust bearing that date, conveyed the various lots and parcels of land at and near Bridgeport, containing about 400 acres, to J. V. Blair, trustee, to secure to Silas Langfitt the payment of a certain writing obligatory, executed by Sandusky to Langfitt, for the sum of $6,700, for borrowed money, bearing even date with the deed, and to become due in three years after date, since the execution of which Langfitt has died intestate, and James V. Langfitt has qualified as his administrator, and the debt remains unpaid; Sandusky being one...
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