Schmertz v. Hammond
| Decision Date | 05 April 1902 |
| Citation | 41 S.E. 184,51 W.Va. 408 |
| Parties | SCHMERTZ et al. v. HAMMOND et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Where once a decree has been made fixing the amount of a lien decreed upon land, and its place as a lien, a partial payment does not call for an ascertainment by the court of the balance, before a sale under the decree.
2. Where a decree of sale provides for payment to a creditor allowed a debt by it of money in the hands of a receiver of another court, and provides that when paid it should operate as a partial payment, there is no error in failing to ascertain the amount of such money in the decree, especially where before sale the amount of said money appears in the record of the case.
3. A judicial sale will not be set aside for inadequacy alone unless the inadequacy is so gross as to justify the presumption of fraud. A sale for half the estimated value is not such inadequacy. Lallance v. Fisher, 29 W.Va 513, 2 S.E. 775. Before setting aside such sale for inadequacy, there should be some guaranty of an advance on the sale.
4. An attorney has no lien upon a fund which he is not instrumental in creating, and which never came to his hands.
5. An attorney's special lien for pay for his services out of a fund in court exists only where his client is entitled to participate in that fund. He cannot claim it out of a fund decreed to go to a party under a right adverse to that of the party represented by the attorney. Such party cannot be compelled to pay for the services of an attorney rendered against him.
6. Where a fund in court arising from a sale of property is consumed by a prior lien, the attorney representing a junior demand has no lien upon that fund for his services.
Appeal from circuit court, Cabell county; E. S. Doolittle, Judge.
Bill by Schmertz & Co. against James Hammond and others. Decree for defendants, and plaintiffs appeal. Affirmed.
Simms & Enslow, for appellants.
Campbell Holt & Duncan and Murray & Koonce, for appellees.
As will appear from a former decision in this case, found in 47 W.Va. 527, 35 S.E. 945, Black & Hammond purchased land of Vinson, and, by request of Black & Hammond, Vinson conveyed it to their wives, and they and their wives at the same time made a deed of trust to secure Vinson a balance of purchase money. Later Samuel C. Koonce paid Vinson, and took an assignment from him of the purchase money secured by said trust, and caused the land to be sold under it, and purchased the land, and took a conveyance to himself from the trustee. Later Samuel C. Koonce conveyed the land to Charles Koonce. Then Schmertz & Co. and other creditors of Black & Hammond united in a suit in the circuit court of Wayne county, afterwards removed to Cabell, to set aside, as fraudulent as to creditors, Vinson's conveyance to the wives of Black and Hammond, the trustees' deed to Samuel C. Koonce, and the deed from Samuel C. Koonce to Charles Koonce, and to subject the land to the debts of said creditors. These conveyances were all decreed fraudulent and void as to creditors. On appeal to this court those transactions were held fraudulent; but, as Samuel C. Koonce had paid with his own money $3,254.19 on the purchase-money lien of Vinson, this court substituted him to Vinson's rights for that sum and its interest, and it was adjudged a first lien on the land. Upon the remand of the case to the Cabell court, that court, taking the view that a discretion was still vested in it, declined to enter a decree proposed as one conforming to the decision of this court; and a writ of mandamus was awarded by this court, requiring the entry of such decree by the circuit court, as will appear in Koonce v. Doolittle, 48 W.Va. 592, 37 S.E. 644, and then that court entered a decree according Koonce the said sum and interest as a first lien on the land, and directed the sale of the land for the payment of that debt, and a number of others decreed against the land. At a subsequent term of the court the plaintiffs filed an amended and supplemental bill, having for its object to charge the Koonces with rents and profits of the land while in their possession, and also with taxes, and for timber cut on the premises, and with certain money received from the United States government for part of the land condemned to its use, and charge said money with the payment of Black's and Hammond's debts, and to abate Koonce's recovery to that extent, and to settle the estate of James Hammond, then deceased, and convene its creditors. Upon demurrer this amended and supplemental bill was dismissed, and Schmertz & Co. appealed.
The demurrer to the amended and supplemental bill was properly sustained, because it sought to open a large field of litigation about things anterior to the decree of the circuit court, and also of this court, which could and should have been litigated during the pendency of the suit, while Koonce's rights were being ascertained. The decrees of the circuit court and this court settled finally the rights of the parties before that amended and supplemental bill. Indeed, before the decree of the circuit court this court had fixed a definite sum, with which Samuel C. Koonce was entitled to charge the land; and this court, in the mandamus case, construing our decision in the prior case, held that our first decision was final and conclusive, in fixing a certain sum as a lien on the land in favor of Koonce. Thus there are two adjudications of this court, constituting res judicata upon Koonce's right to that fixed sum as a lien. It is not possible--it cannot be--that all the matters proposed to be thrust into this suit after those adjudications, to reopen the floodgate of litigation in a suit of 20 years' standing, can be allowed. There must be rest and repose at some time in a suit, as in other matters. We have a decision of this court settling the rights of the party at the date of the decree of the circuit court, and a second judgment of this court settling the rights of the parties as to Koonce's debt, holding that the former adjudication settled his right to that debt, and then a decree of the circuit court fixing his debt, and fastening it upon the land as a finality; and then we have a decree of the circuit court executing the decision of this court, fixing the amount of the debt of Koonce, and levying it as if it were an execution upon a final judgment upon the land. All this adjudication fixed two things, namely, the amount of Koonce's rights against that land, and its preference as a lien. After all this adjudication comes this amended bill to bring in matters prior to that adjudication,--to open again the doors of litigation. It was not even presented before the decree of the circuit court, though it was too late then. Whether this adjudication is right or wrong, it is a finality. Rogers v. Rogers, 37 W.Va. 407, 16 S.E. 633; Corrothers v. Sargent, 20 W.Va. 351.
Another error assigned is that before the second sale (for there have been two under decrees in this case) a sum of money was received by Koonce from the registrar of the United States court for land which had been condemned out of the tract by the United States for its use. To sustain this assignment of error, we must say that though a court has once adjudicated a debt at a fixed sum, and declared its status as a lien upon land, yet a partial payment will prevent the sale of the land for that debt until there shall be a reference to a commissioner to make a report of the balance due, or until there shall be a decree applying the payment and finding the balance. Such a holding would be promotive of endless litigation and costs, and it would answer no useful purpose. The sum once fixed, it only remains to apply payments. The rule that liens must be ascertained before sale has been once answered. Does it go further than this? Practically it is rarely difficult for all interested to...
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