Stout v. Philippi Mfg. & Mercantile Co.
| Decision Date | 29 November 1895 |
| Citation | 23 S.E. 571,41 W.Va. 339 |
| Parties | STOUT v. PHILIPPI MANUFACTURING & MERCANTILE CO. et al. |
| Court | West Virginia Supreme Court |
Submitted June 19,1895
Syllabus by the Court.
1. One not a formal party cannot appeal, though affected as a pendente lite purchaser.
2. An appeal taken in time from a decree will bring up for review every former order or decree not itself appealable, no matter when entered, and every appealable decree entered not more than two years before the appeal; but it will not bring up for review any appealable decree or order entered more than two years before the appeal. Nor can any error in the decree or order appealed from in time be reviewed, if that error be based solely on an appealable decree or order entered more than two years before the appeal; and furthermore, of course no error in an order or decree back of such appealable decree, dating over two years back, can be reviewed, no matter what the character of the order or decree in which it was committed.
3. Pendente lite purchasers, after recordation of a notice of lis pendens, where that is required, though not formal parties, are bound by the adjudication touching the property purchased by them, involved in the suit, as if formal parties.
4. Pendente lite purchasers are charged with notice of all the facts of which the record of the suit would inform them at the date of their purchase. But this is only for the purposes of that suit, and for the benefit of its parties, not for other separate suits or parties.
5. Pendente lite purchasers occupying the estate, when the record charges their grantor with fraud in fact in the acquisition of the property, are chargeable with rents and profits.
6. While a grantor in a deed of trust, or mortgagor or judgment debtor, in possession of the land, or his alienee, innocent of fraud in fact, is not chargeable with rents and profits during the pendency of a suit to subject the land to the debt, yet an alienee of such debtor chargeable with fraud in fact is so chargeable.
7. One party guilty of fraud in a transaction can have no relief in equity against another person, though equally guilty of fraud in the same.
8. If one becomes a purchaser at a judicial sale, and fails to complete his purchase as required by the decree, he is liable for the difference between the amount of his bid and the sum realized at a second sale; but, to hold him liable, the sale must be reported, and a rule awarded and served upon him to show cause why he should not complete his purchase, or, in default, the property be resold at his expense, and at his risk of liability for any difference between the sum for which he agreed to purchase and the sum realized on a resale.
Appeal from circuit court, Barbour county.
Bill by B. B. Stout against the Philippi Manufacturing & Mercantile Company and others to set aside a conveyance. There was a decree for plaintiff, and a sale of the property thereunder and from a decree requiring S. C. Douglass, the purchaser at the sale, to pay the difference between his first and second bids for the property, and certain rents and profits, said Douglass appeals. Reversed in part and affirmed in part.
DAYTON & Dayton and F. O. Blue, for appellant.
Sam. V Woods, for appellees.
B. B Stout brought a suit in equity in the circuit court of Barbour county against the Philippi Manufacturing & Mercantile Company, a corporation, and others, to recover a debt due Stout from the corporation, alleging that said corporation had become embarrassed, to insolvency, and that it had executed a deed of trust upon certain personal property to secure a debt to the Farmers' Bank of Philippi, and later a deed of trust upon all its real estate and machinery attached thereto, to secure various debts, in certain order, preferring a large indebtedness to said bank over Stout's debt; that both said deeds of trust, for certain reasons stated, were fraudulent and void as to creditors other than the bank; and that the bank and the trustees were participants in the fraudulent transactions culminating in and including said deeds of trust. The bill prayed that said deeds of trust be annulled, and the properties of the corporation subjected to the payment of Stout's debt. Later, other creditors of the said corporation brought several separate suits, of like character, to recover their respective debts, and to overthrow said deeds of trust and subject the said property to their debts. These cases were jointly heard, and a decree dated 17th March, 1888, declared both of said deeds of trust fraudulent and void as to Stout and other general creditors of the Philippi Manufacturing & Mercantile Company, set them aside, and also the sale under one of them, and subjected the said real estate to pay certain creditors,--those so suing. The trustees in the deeds of trust and the bank were parties to these suits, and Stout recorded a notice of lis pendens of his suit, but the Douglasses were not made parties. Later, they filed a petition to be subrogated to a lien, and, later still, a petition for rehearing, but otherwise were not parties. Pending the suits the trustees under the deed of trust conveying the real estate sold it to S. C. Douglass and T. B. Douglass, who took possession, and held under their purchase from the trustees until it was sold later by the commissioners under the decree above mentioned. Under that decree the commissioners sold the property to S. C. Douglass, but he did not complete this sale by complying with the terms of sale prescribed by the decree, by giving notes with security; and a few days later, by consent of the parties by their attorneys, the property was resold, without readvertisement or order of resale, and purchased by S. C. Douglass at a price less by $1,250 than his former bid, and this sale was reported to the court and confirmed, reserving to the creditors any right to hold Douglass for the said difference. Both sales were reported by separate reports,--filed, it seems, at the same time,--and both heard together. Later, the Farmers' Bank of Philippi moved for a rule against Douglass to show cause why he should not be compelled to pay the said difference between his first and second bids for said property. Later, a decree was entered which required Douglass to pay the said difference, with interest; and it required S. C. Douglass and T. B. Douglass to pay $1,500, with interest, for rents and profits of said mill property from the date of their purchase from the trustees to the date of S. C. Douglass' purchase of it of the commissioners under the decree. From this last decree, dated 24th February, 1894, S. C. Douglass has appealed. I have stated only so much of the large record as I deem necessary to reflect the adjudication of law made in the case.
The appellant assigns errors in the first decree. Neither he nor T. B. Douglass was a formal party at its date. S. C. Douglass became quasi a party at later date, as purchaser under the decree, and the two filed two petitions, one of them asking rehearing; and S. C. Douglass became a party to the rule to compel him to pay the difference between his two bids. As such purchaser, he could not appeal from former decree. Per Miller, J., Blossom v. Railroad Co., 1 Wall. 655. As a pendente lite purchaser he could not appeal. Those under whom such a purchaser holds represent him. Benn. Lis Pend. § 325. But, waiving the question whether otherwise he was such a party as can assign error in that decree, there is the bar of time, precluding review of any error in that decree,--almost seven years; two years being the limitation. Code, c. 135, § 3. But counsel says that an appeal from a final decree brings up for review all preceding decrees out of which any error complained of in such final decree has arisen. This statement is too broad. An appeal taken in time from a decree will bring up for review every former order or decree not itself appealable, no matter when entered, and every appealable order or decree entered not more than two years before the appeal; but it will not bring up for review any appealable order or decree entered more than two years before the appeal. Nor can any error in the decree or order appealed from in time be reviewed, if that error be solely based on an appealable order or decree entered more than two years before the appeal. The error in the former decree cannot be corrected, because an appeal from that decree itself is barred; and the error in the later decree, though the appeal be within two years from its date, cannot be corrected, because that would be a reversal of the former decree, and thus nullify the statute defending its error. And, furthermore, no erroneous decree prior to such appealable former decree can be reviewed. Tiernan's Adm'r v. Minghini's Adm'r, 28 W.Va. 314; Lloyd v. Kyle, 26 W.Va. 534. The only question, then, is whether the decree of March 17, 1888, is appealable. Here we can have no trouble. That decree adjudicated the principles of the cause,--its soul and substance,--in adjudicating that the deeds of trust were fraudulent and void; setting them aside; setting aside the sale made under one of them to the Douglasses decreeing debts, and their order against the property; and subjecting it to sale. Hoy v. Hughes, 27 W.Va. 778; Buster v. Holland, Id. 510. And it just now occurs to me, as the decree requires land to be sold, it is appealable, under the letter of clause 7, § 1, c. 135. Indeed, is it not a final decree, according to Core v. Strickler, 24 W.Va. 689? No matter in what light we may view the decree as to the Douglasses, an appeal, when resorted to reverse or avoid a decree, is under the limitation. For these reasons, if not for others, we cannot look into that decree of ...
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