1. When a cause is set for hearing by the plaintiff, and heard on bill, answer and exhibits, and the court directs a dismissal of the bill, the plaintiff cannot as a matter of right reply to the answer.
2. Where an answer is filed and not replied to, the allegations therein, whether responsive to the bill or not, must be taken as true.
3. If such answer raises a substantial defence to the case made by the bill, it will bar the plaintiff's equity.
4. Such parts of the bill, as are not controverted by the answer, must also be taken as true.
5. In our recording acts the word " creditors " means all creditors, who but for the deed or contract would have a right to subject the land embraced therein to the payment of their debts.
6. A purchaser of land by parol contract, which has been so far executed as to vest in him the right to compel his vendor to execute the parol contract in a court of equity, has an equitable right in said land so purchased, which a court of equity will fully protect against the lien of a subsequent judgment-creditor of his vendor.
7. When statute enactments do not interfere, a judgment-creditor can acquire no better right to the estate of the debtor, than the debtor himself has when the judgment is recovered. He takes it subject to every liability, under which the debtor held it, and subject to all the equities, which exist in favor of third parties; and a court of equity will limit the lien of the judgment to the actual interest, which the debtor has in the estate.
Appeal from a decree of the circuit court of the county of Greenbrier, rendered on the 15th day of June, 1878, in a cause in said court then pending, wherein A. C Snyder was plaintiff and O. C. Martin and others were defendants, allowed upon the petition of said Snyder.
Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.
Johnson, Judge, furnishes the following statement of the case:
In April, 1878, the plaintiff, Snyder, filed his bill for the enforcement of a judgment-lien against O. C. Martin and others in the circuit court of Greenbrier county. The bill is as follows:
" The bill of A. C. Snyder, plaintiff, filed in the circuit court of Greenbrier county, against Obediab C. Martin, Ann E. Buster and Alexis M. Buster, in their own rights and as executors of George W. Buster, deceased, Charles B. Buster, Lucy Buster, Issac C. Miller and Catharine, his wife, William E. Holland and Virginia E., his wife, Emaline S. Martin, Martha A. Martin, Thomas W. Martin, Ballard S. Martin, Bolivar E. Martin and Willis Tincher, defendants:
" The plaintiff complains and says:
" 1st. That on the 28th day of February, 1878, the defendant, Obediah C. Martin, confessed a judgment in his favor in the clerk's office of the county court of Greenbrier county for $200.00, with interest thereon from the 26th day of October, 1876, till paid, and costs, which costs amount to $3.50, and that said judgment has been duly recorded on the judgment-lien docket in said county; all of which will more fully appear from a copy of said judgment herewith filed and marked Exhibit 'A.'
" 2d. That at the time the judgment was ccnfessed and docketed as aforesaid, the defendant, O. C. Martin, was and still is the owner of the legal, and perhaps the equitable, title to an undivided moiety of one hundred acres of land, more or less, situate on a branch of Muddy creek, in Greenbrier county, being the same land that was con-veved to said O. C. Martin and one Claudius B. Martin by Joseph Martin and wife, by deed dated December 20, 1848, a certified copy of which is herewith filed and marked Exhibit 'B;' that after the making of said deed the same was set aside by a decree of this court in the suit of Martin et ux. v. Martin et al., but afterwards the said Joseph Martin died intestate, leaving the said O. C. Martin and Claudius B. Martin as his only children and heirs at law, and the said O. C. Martin and the heirs of C. B. Martin are entitled to said land as such heirs.
" 3d. That he is informed that the said O. C. and C. B. Martin, some time about the year 1850, entered into an executory contract in writing with one George W. Buster for the sale of said one hundred acres of land; that by said contract said Buster bound himself to pay said Martin $150.00, with interest thereon from date of sale; that said written contract was delivered to said Buster, and soon after the date thereof he took possession of said land, and he and those claiming under him have occupied it ever since, and are still in the possession thereof; that said Martins bound themselves to convey said land to said Buster as soon as all the purchasemoney should be paid: that said Buster never paid said purchase-money, nor any part thereof, nor have his heirs, representatives, or any one else paid the same, or any part thereof; and no deed has therefore ever been made for said land to said Buster or his representatives.
" 4th. That after the purchase aforesaid the said George W. Buster departed this life, leaving a widow, the defendant, Ann E. Buster, and the following children as his heirs at law, viz: The defendants, Alexis M., Charles B. and Lucy Buster; and the said Ann E. and Alexis M. Buster have duly qualified as the executors or administrators of said George W. Buster, deceased.
" 5th. That he is also informed that some time since the death of the said George W. Buster his representatives sold said land to the defendant, Willis Tincher, and that said Tincher is now in the possession of the same.
" 6th. That said Claudius B. Martin has also departed this life, leaving a widow, Catharine Martin, who subsequently intermarried with the defendant, Isaac C. Miller, and she is now his wife; and said C. B. Martin also left the following children as his heirs at law: the defendants, Virginia E. Holland, the wife of W. E. Holland, Emaline S. Martin, Martha A. Martin, Thomas W. Martin, Ballard S. Martin and Bolivar E. Martin, the last two of whom are infants.
"7th. That said land has never been divided; that the title to one moiety is in the defendant, O. C. Martin? and the title to the other moiety is in the said children of C. B.Martin, deceased.
" 8th. That the aforesaid judgment of the plaintiff is still unpaid, and the same operates as a lien upon the said O. C. Martin's moiety in said land. But if it is true, as the plaintiff has been informed, that said Buster purchased said land and has not paid the purchase-money therefor, then the plaintiff is willing that the sale may stand, upon the payment by said Buster's representatives of the purchase money, and the interest accrued thereon, to the plaintiff in discharge of his said judgment.
" Prayer. The plaintiff, therefore, prays that the land aforesaid may be partitioned between the defendant, O. C. Martin, and the said children of C. B. Martin, deceased, and that the moiety of said O. C. Martin may be decreed to be sold to pay the plaintiff's judgment; or, if the parties desire it, and the purchase-money has not been paid by Buster for said land, then the court may decree a specific execution of the contract of sale to said Buster, and decree that they pay the purchase-money for said land to the plaintiff in satisfaction of his judgment, and in default of such payment that said land may be sold for the purchase-money so decreed; and that the plaintiff may have such other and general relief as he is entitled to in the premises, &c."
The deed and judgment referred to are filed as exhibits with the bill.
In May 1878, a part of the defendants filed their joint answer to the bill, to which there was no replication. The said answer is as follows:
" The joint answer of Ann E. Buster and A. M. Buster, in their own right and as administrators of George W. Buster, deceased, Charles B. Buster and Lucy Buster to a bill of complaint filed against them and others in the circuit court of Greenbrier county by A. C. Snyder.
" These respondents, reserving to themselves the benefit of all proper exceptions to the plaintiff's bill, for answer thereto, or to so much thereof as they are advised it is material for them to answer unto, answer and say, that as to the one hundred acres of land in the bill mentioned it is true that it was conveyed by Joseph Martin to said O. C. and C. B. Martin, sons of said Joseph Martin, by deed dated December 20, 1848, but it is true also, that said Joseph Martin and wife in the month of March, 1861, instituted their suit in chancery against the said (). C. Martin and the administrator and heirs of said C. B. Buster, he being dead, for the purpose of having said deed set aside, cancelled and annulled; that said suit was prosecuted, and on the day of, 18, a decree was rendered by the circuit court of Greenbrier county, by which said deed of December 20, 1848, and another deed of the 9th of January, 1849, between the same parties was set aside, rescinded and annulled, and thus the title to all the lands mentioned in said two deeds became re-vested in said Joseph Martin; that this decree was entered long before the plaintiff obtained his judgment against said O. C.Martin.
" Further answering, respondents say that in the year 1850 or 1851, George W. Buster, the husband of respondent, Ann E., and the father of respondents, A. M., C. B. and Lucy Buster, purchased the one hundred acres of land aforesaid from said Joseph Martin, paid the full amount of the purchase-money at the time of the purchase, was placed at once in possession of said land, which possession said George W. Buster and those claiming under him have held peaceably from that day to this; that this purchase was made with the full knowledge and consent of said O. C. and C. B. Martin, who in fact united in said sale; that your respondents cannot state whether there was any written contract or title-bond between the said Joseph Martin and said ...