Vance v. Evans

• Decision Date: 25 October 1877
• Parties: Vance v. Evans et al.(Absent, Haymond, Judge).
• Court: West Virginia Supreme Court

11 W.Va. 342

Vance

v.Evans et al.

(Absent, Haymond, Judge).

Supreme Court of Appeals of West Virginia.

Decided October 25, 1877.

1. A decree between co-defendants can only be based upon the pleadings and proofs between the complainant and defendant.

2. Where a case is made out between defendants by evidence arising by pleadings and proofs between the complainant and defendants, a court of equity should render a decree between the co-defendants.

3. A defendant, who by his answer asks the court to make inquiries through its commissioner, more extended than the statements in the bill might justify, and upon such inquiry to decree between him and a co-defendant, is thereby precluded in the appellate court from assigning as error such enlarged extent of inquiry, or that a decree between co-defendants was based thereon.

4. It is proper to charge interest upon estimated rents and profits, where the land is occupied by the consent of the owner, or where one tenant in common holds and enjoys the whole land by the consent of his co-tenant,

5. As a general rule, where it is necessary to adjudicate the rights of an assignee, the assignor must be made a party to the cause; but there is this exception to this general rule, that when the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is neither doubted nor denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party.

An appeal, by William Conway, one of the defendants below, from several decrees of the circuit court of the county of Monongalia, rendered in a cause in chancery, in which Addison S. Vance was complainant, and George D. Evans and others were defendants.

Hon. John A. Dille, formerly Judge of said circuit court, rendered the decrees complained of.

Green, President, furnishes the following statement of the case:

The record in this case consists of more than seven hundred and fifty pages of manuscript. In stating the case, I shall set forth only so much of this voluminous record, as is necessary to the full understanding of the matters in controversy in this Court, omitting many matters which have been in controversy in the court below, but which have been settled by the decrees of the court, and which settlement has been acquiesced in by the parties, and also other matters which are still in controversy before this Court, but which, in the view taken by us of the case, it is unnecessary to decide. So much only of such matters will be stated, as is necessary to comprehend fully, why we regard such matters as irrelevant and unnecessary to be decided in this case.

On April 3, 1862, Brown & Woodley obtained a judgment in the circuit court of Monongalia county against George D. Evans and another; and on July 29, 1862, William G. Brown recovered a judgment in the county court of said county against said Evans and another. At the September term 1862, five different judgments were obtained against said Evans, or against him and others, all of which judgments were promptly docketed. The defendants in these several judgments, other than Evans, were insolvent, with the exception of the plaintiff n this cause. After the commencement of the September erm 1862, of the circuit court of Monongalia county, two deeds of trust, executed by Evans, were admitted to ecord in the clerk's office of the county court of Monongalia county, and one of them, which conveyed some and in Marion county, in the clerk's office of the county court of that county. By one of these deeds of trust Evans conveyed to Warren C. Dorsey, his household and kitchen furniture, and all his personal estate, and certain real estate in Monongalia county, in trust to secure certain specified debts. By the other deed of trust, Evans conveyed to Benjamin M. Dorsey certain bank stock and certain real estate in Monongalia and Marion counties, in trust to secure certain debts, and among them a debt of about $3,000.00 to William Conway.

Among the judgments, rendered against Evans and others, at the September term 1862, of the circuit court of Monongalia county, was one in favor of the Frostburg bank against said Evans and five others, including Addison S. Vance, the plaintiff, for $1,502.03, with interest on $1,500, 00, a part thereof, from April 17, 1861, and costs. The foundation of this judgment was a negotiable note given by one Scott, and endorsed by all the other defendants, against whom said judgment was rendered, including said Addison S. Vance, who was the last endorser; execution issued on said judgment, and said Addison S. Vance was forced to pay it on April 27, 1865. John H. Hoffman, who was substituted as trustee in place of Warren C. Dorsey, advertised the property for sale under his deed of trust. On January 9, 1867 Addison S. Vance filed his bill in this cause, setting forth all the above facts, and stating that all the other defendants, except Evans, in all said judgments, were insolvent, claiming that he had a right to be substituted to the lien of the Frostburg bank on the real and personal property of Evans; and that this lien was superior to that created by the said deeds of trust, which were not recorded till after the term commenced at which said judgment was rendered, asking that Hoffman be enjoined from making said sale; that the amount due on said judgment debts, as well as on the debts named in the deed of trust, be ascertained; that Evans's property be made liable to his, plaintiff's, claim, and for general relief. He made parties defendants all the plaintiffs and defendants in said judgments, all the creditors named in these deeds of trust, and the personal representatives of such of them as were dead, Basset, who had bought one of these tracts of land of Evans since the giving of the deeds of trust, and the trustee, and substituted trustee, in these deeds of trust. The injunction prayed for was swarded. In April 1887 William Conway answered, alleging, that when said deeds of trust were executed, Evans was indebted to him $3,000.00, or more, for money paid out for his use, and further stating, that he and Evans had bought of one Willey, a tract of land on Plum run, Marion county, for which each of them paid $1,000.00 as the cash payment, and gave their bond for the balance of purchase money, $5,000.00; that he had made permanent improvements on this farm which cost him at least $650.00; that this $5,000.00 bond had been assigned to one Chisler; and that he had paid his executor on it at different times $4,700.00, for which he produced receipts and that he had paid Chisler before his death, on April 6, 1856, $300.00 but had lost his receipt; that he had paid taxes on this land to the amount of $234.22, and that he holds two londs of Evans to John Dawson of $250.00 each, given for the purchase of the Dawson farm owned by Evans. He produces these bonds, but their is no assignment of them to him. And he asks that the court will adjust and adjudicate the difficulties arising in this cause between him and the plaintiff and other contestants, and if deemed necessary he be permitted to rile a cross-bill. He afterwards filed a supplemental answer, claiming a farther payment of $150.00 on April 6, 1855, on the bond of Evans & Conway to Willey of $5,000.00, which he states he omitted by mistake in his answer. Conway took a number of depositions intended to sustain these allegations in his answers. And on May 8, 1867, replications having been filed to all the answers, and the cause being matured for hearing, the court decreed that the cause be referred to a commissioner to ascertain and report the debts due under the deed of trust; the judgments against Evans, and their priorities, the real and personal estate of Evans, and the annual value of the real estate, the balance due to Chisler's ex'or on the obligation of Evans & Conway to Willey for purchase of the Plum run farm, and what portion ot the purchase money of said farm had been paid by each of these parties; and to settle the accounts of Evans & Conway, and ascertain what, if anything, is due to Conway, and also what amount of improvements Conway has put on the Plum run farm and what taxes he has paid on it, and what is the value of the rents and. profits of this farm since it was bought by Evans & Conway, and who has received them. At the March term 1870 Chislers ex'or, who has been by order of the court made a defendant, filed his answer in which he states, that this bond of Evans & Conway for $5,000.00 to Willey, given for the balance due on the purchase of the Plum run farm, was assigned by Willey to George S, Bacon on September 2, 1855, and on December 25, 1855 George S. Bacon assigned this bond, to his testator John S. Chisler," reserving all interest that may have accrued prior to the first day of April 1855," that the balance due him, the executor of Chisler, on this bond was on August 31, 1865 $1,068.00; and that it is secured by a vendor's lien on the Plum run farm..The commissioner, William P. Willey, under said order, made May 1867, made his report October 1, 1869, This report was in many respects imperfect, and did not lie in the office of the commissioner the time required by law. He does not report accurately the amount of the debts, secured by the deeds of trust, executed by Evans, but states about the amount of the principal of some ot these debts, without stating from what time they bear interest; and other of these debts he excludes, because of want of proof of the amount due on them, though he says they are probably unpaid. He reports but two judgments, though the bill and exhibits show their were many other judgments against him; the real estate owned by Evans and the rental value thereof is very imperfectly reported, some tracts owned by Evans, as shown in the cause, being omitted, and others not owned by him being included; and reports no personal...