Taylor's Ex'rs v. Cox

• Decision Date: 11 February 1889
• Citation: 9 S.E. 70,32 W.Va. 148
• Court: West Virginia Supreme Court
• Parties: Taylor's Ex'rs v. Cox et al.

9 S.E. 70

(32 W.Va. 148)

Taylor's Ex'rs

v.Cox et al.

Supreme Court of Appeals of West Virginia.

Feb. 11, 1889.

Principal and Surety—Attachment—Appeal— Continuance.

J. O. C, W. C, and T. executed a note to one Susan Spiller, in which J. O. C. was principal, and the others were sureties. Suit was brought on said note, and satisfaction was obtained out of the property of T., in the county of Tazewell. During the pendency of proceedings to enforce the collection of said note, T. died, and W. C. and A. G. C. transferred to the executors of T. two several notes, made by M. to W. C, for $3,100 each, which purported to be secured by vendor's lien on certain lands which had been conveyed to M. by said W. C. and A. G. C., to indemnify the estate of T. forthe amount recovered from it by said Susan Spiller. Suit was brought by the executors of T. to enforce said vendor's lien, but it proved unavailing, for the reason that the proceeds of the land, when sold, wore absorbed almost entirely by prior liens thereon, which existed against W. C. and A. G. C. Said executors obtained judgment on one of said notes in Washington county, where M. resided, and sought to prove said judgment, which was in the name of W. and A. G. C, for the use of said executors, in a chancery suit pending in said county, but it was rejected both by the commissioner and the court. Said executors and the devisees of T. then brought a suit in equity in the circuit court of McDowell county, in this state, in the nature of a foreign attachment, to subject the lands of J. O. C. therein situated to the payment of the amount the estate of T. had paid for him as surety, and also the amount which had been recovered from T. in his life-time. An attachment was sued out and levied on said lands, and an order of publication taken and executed against the defendants. W. C, one of the defendants, appeared, and required security for costs, which was given, made a motion to quash the attachment, which was sustained, demurred to the bill, and filed his answer in October, 1877; and at the October term, 1884, of said circuit court, a decree was rendered against the defendants for the amounts claimed in the bill, and the lands of J. O. C., which had been levied on under an attachment, were directed to be sold under the attachment lien. Afterwards the defendant J. O. C. appeared, petitioned for a rehearing, and said decree was set aside, and he filed his answer. The court sustained the demurrer, allowed the plaintiffs to amend at bar, gave a personal decroe against the defendant J. O. C, and held that the plaintiffs had a lien by virtue of said attachment, and directed a sale of said lands to satisfy the plaintiffs'claim. Held(l) that, the notes transferred to the executors of T. by W. C. and A. G. C. having proved worthless by reason of a failure of consideration, the question of diligence on the part of said executors is not material in this case; (2) although an attachment sued out in this case appears to have been quashed, yet, the decree of the court below reciting that the cause was heard upon the attachment duly levied upon the lands of J. O. C, in this court said attachment must be taken to have been in full force and effect, duly sued out, and levied as required by statute; (3) under the circumstances of this case, it was not incumbent on the executors of T. to appeal from the decision of the circuit court of Washington county, rejecting the judgment in their favor against M., before resorting to the property of J. O. C. for reimbursement; (4) the demurrer to the bill having been sustained, and the plaintiffs having ameuded at bar, and the defendants neither asking delay, nor demurring to the bill as amended, there was no good reason for delaying the hearing of the case.

(Syllabus by the Court.)

Appeal from circuit court, McDowell county.

Bill by John M. Smith and others, executors and heirs of John W. Taylor, deceased, against James 0. Cox and others. Defendants appeal.

A. W. Reynolds, J. H. Fulton, and J. W. Caldwell, for appellants. D. E. Johnston and Chapman & Gillespie, for appellees.

English, J. This is an appeal from the circuit court of McDowell county, which the appellants claim involves a question of proper diligence on the part of the plaintiffs below and appellees in the collection of certain notes which were placed in the hands of J. T. Frazier, one of the executors of J. W. Taylor, deceased, as collateral security for the payment of a judgment obtained by Susan Spiller against William Cox and J. W. Taylor for the sum of $2,613, with legal interest thereon from the. 2d day of August, 1858, and costs, $11.93, credited by $600, paid May 1, 1859, and by $48.02, paid November 25, 1861, which judgment was obtained in the county court of Wythe county on the 16th day of August, 1867, and also to secure a judgment for the same amount rendered by said court in favor of Susan Spiller against James O. Cox on the 16th day of November, 1867; said parties having been sued jointly, but process having been served on them at different times. The collaterals above mentioned consisted of two notes executed by one T. G. MacConnell to Aug. G. Cox and William Cox, each for the sum of $3,100, dated the 12th day of January, 1872, and payable with interest from October 1, 1871, and falling due, respectively, on the 1st days of October, 1873 and 1874." It appears that a writ of fieri facias issued from the county court clerk's office of Wythe county, on said judgment, directed to the sheriff of Tazewell county, Va., and that by virtue of said writ the sheriff of Tazewell county sold personal property of John W. Taylor sufficient to realize the sum of $262.50, which was entered as a credit on said writ as of the 12th day of April, 1870; and on the 5th day of May, 1870, the said Susan Spiller instituted a chancery suit in the county court of Tazewell county against A. G. Cox, William Cox, and John W. Taylor, to subject the real estate of John W. Taylor, located in that county, to the payment of said judgment obtained by her against them in the county court of Wythe county, and such proceedings were had therein that a decree for the sale of the lands of said John W. Taylor was obtained to satisfy said judgment. Subsequent, however, to the rendition of said decree, and during the pendency of said suit, the said John W. Taylor died, and the same was revived against his executors and heirs at law, and on the 1st day of April, 1873, the lands of the estate of John W. Taylor, deceased, were sold to pay off said judgment of Susan Spiller obtained in the county of Wythe against said James O. Cox, William Cox, and John W. Taylor. On the 5th day of February, 1873, William Cox and A. G. Cox assigned and transferred to J. T. Frazier, one of the executors of said John W. Taylor, the collaterals above mentioned, with authority to him to use them so far as they would pay the said two judgments of Mrs. Spiller, rendered, as aforesaid, against James O. Cox, A. G. Cox, William Cox, and John W. Taylor. In order to recover from said James O. Cox and William Cox the amount which the estate of John W. Taylor was compelled to pay as surety for said James O. Cox, the executor and heirs at law of John W. Taylor, deceased, instituted this suit in the county court of McDowell county, W. Va., to subject two tracts of land alleged to be the property of said James O. Cox, —one containing 9, 988 acres, and the other 1, 730 acres, —situated in saidcounty of McDowell, to sale for the payment of said amount, and also the amount realized from the personal property of said John W. Taylor under said writ of fieri facias.

The defendants William Cox and James O. Cox both answered the plaintiffs' bill, and both claim that the plaintiffs have no right to subject the lands of James O. Cox to sale to satisfy the claim asserted in the plaintiffs' bill, because they say that after the death of said John W. Taylor, but before the sale of the lands descended from or devised by him to plaintiffs, A. G. Cox and William Cox transferred to J. T. Frazier, who was one of the executors of said John W.Taylor, and who qualified as such, two several notes above mentioned as collaterals, which notes were the second and third notes executed by said MacConnell for the purchase money of a tract of land situated in Wythe county, Va., on the waters of Cripple creek, which notes were so assigned as collateral security to indemnify the estate of said John W. Taylor for a certain amount of money which the estate of said John W. Taylor was liable for as security for said J. 0. Cox; and the defendant J. O. Cox claims that, if due and proper diligence had been used in the collection of said collaterals, more than enough could have been realized than was necessary to reimburse the said estate of John W. Taylor for the amount afterwards paid in discharge of the liability of said John W. Taylor as surety for said J. 0. Cox.

The evidence in this cause, in my opinion, does not disclose the fact that any want of diligence on the part of the personal representatives of John W. Taylor, deceased, prevented them from realizing the amount of money mentioned in the aforesaid notes executed by T. G. MacConnell to Augustus G. Cox and William Cox, and by them transferred as collaterals to J. T. Frazier, one of the executors of John W. Taylor. If it is true that judgments might have been obtained on these notes at an earlier day than they were obtained, yet the failure to collect these notes, or either of them, and to make them available for the purposes for which they were intended, to-wit, the reimbursement of the estate of John W. Taylor, deceased, to the extent of the amount paid by said decedent's estate to Susan Spiller, was not caused by delay in bringing said suits upon said notes. When judgments were obtained on said notes, T. G. MacConnell owned a large amount of real estate in the counties of Tazewell, Wythe, and Washington, in the state of Virginia,...