Wamsley v. Petitioner

• Decision Date: 26 April 1884
• Court: West Virginia Supreme Court
• Parties: Wamsley v. Stalnaker.

24 W.Va. 214

Wamsley

v.Stalnaker.

Supreme Court of Appeals of West Virginia.

Submitted January 28, 1884

Decided April 26, 1884.

(^*Woods, JuDGrE, Absent.)

1. In this State equity will enjoin the collection of purchase-cnoney of land on the ground of default of title, after the vendee has taken possession under conveyance from the vendor with general warranty, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly that the title is defective, (p. 223.)

2. But the interposition of a court of equity by injunction will not

be extended further than it has been already extended by the decisions binding on this Court, which have been rendered by the court of appeals of Virginia prior to the formation of this State or by this Court, unless peculiar grounds of equitable interference exist, such as the insolvency of the grantor or his, fraudulent conduct, which renders such interposition necessary in order to prevent irreparable damage to the vendee, (p. 223.)

3. When the vendor by his deed "covenants with the vendee for

general warranty of title, and that he is seized of the land conveyed in fee simple, and has good right and title to convey the same, and that the same shall not be subject to any liability from incumbrances now thereon, '⁷ and there are recorded judgment-liens on the land at the time of the conveyance, a court of equity will not enjoin or stay the collection of a judgment against the vendee for the purchase-money of the land, unless the bill shows, that the vendor has no other lands sufficient to satisfy such judgment-liens, and that he is unable to pay them because of his pecuniary condition, (p. 225.)

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

Jacob S. Wamsley filed his bill at the December rules, 1880, in the circuit court of Randolph county, in which he alleged, that on the 7th of February, 1877, Jacob H. Arbogast and his wife conveyed to him two thousand acres of land in Pocahontas county, West Virginia, with general warranty of title; and in the deed he covenanted, that he was seized of the said tract of land and had good right and title to convey the same," and that the same shall not be subject to any liability from incumbrances thereon except for the vendor's lien in favor of Jacob H. Arbogast, which is hereby expressly reserved." The deed is filed with the bill as an exhibit and has been properly executed and acknowledged by the grantors and duly recorded, but the amount of the purchase-money unpaid, for which this vendor's lien is reserved, nowhere appears on the face of this deed. The bill states that the price of this land was one thousand five hundred dollars, of which the plaintiff paid only fifty dollars. The balance was payable in instalments with interest from the date of sale, and no part of it having been paid, and Arbogast having on October 3, 1877, assigned all the pur-chase-money-bpnds to one Stalnaker, he on May 15, 1880, instituted a suit in the circuit court of Randolph county for the whole of this purchase-money, in the name of Arbogast for the use of Stalnaker, and recovered judgment thereon against him, Wamsley, for one thousand seven hundred and sixty-five dollars and thirty-seven cents, with interest thereon from the date of said judgment, May 15, 1880, and twelve dollars and five cents costs; on which judgment a fieri facias issued on May 81, 1880, which was placed in the hands of the sheriff of Randolph county, who levied the same on his, Wamslcy's, goods and chattels which were about to be sold to satisfy this execution. The complainant in this bill alleges, that there were a number judgments, which were liens and charges upon this land, when conveyed to him as aforesaid, and he specifies them in detail and files with the bill copies thereof exceedingin amount of the judgment against him; and he says these judgments are unpaid and are still existing liens. The plaintiff in this bill prays that Jacob II. Arbogast and Hamilton Stalnaker, the defendant, be forever restrained and enjoined from collecting said judgment; that the various liens against the lands of Jacob II. Arbogast be ascertained and reported according to their order and priorities; and for general relief. The injunction prayed tor was awarded on September 27, 1880, by the judge of the sixth circuit of the State of West Virginia in vacation, and the injunction-bond required was duly executed.

On September 12, 1881, Jacob II. Arbogast filed his answer. He states, that the purchase-money-bonds due from the plaintiff to him were assigned by him to Hamilton Stalnaker to pay a judgment in favor of Hamilton Stalnaker against him for one thousand dollars with interest from the 27th day of April, 1873, and costs, seventeen dollars and thirteen cents, which constituted much the largest judgmentlien on this land, and was the one named in the bill. These bonds of the said plaintiff to him Arbogast so assigned to his co-defendant, Stalnaker, paid off this judgment against Arbogast, and left about three hundred dollars coming to him, Arbogast, out of this judgment against the plaintiff. The answer then proceeds to state the judgment-liens on his land, and alleges what has been paid on them severally, and which of them have been paid oft in full, and says the plaintiff can remove this lien in favor of his co-defendant for the one thousand dollars and interest and costs by applying the money due on the judgment against him to its payment, as it was understood it should be so applied; that the other judgment liens amount to a mere trifle, while he has or did have lands, on which these small judgments are liens, and which must be first subjected to pay them, amounting in value to not less than eleven thousand dollars. The respondent further alleges, that this injunction was procured simply for delay, and asks that it may be dissolved and the bill dismissed at plaintiff's costs.

A motion was made immediately after this answer to dissolve this injunction, but the court refused to dissolve it then deeming it proper to give to the plaintiff further time to prove his case. Subsequently after the depositions were taken on January 11, 1882, the court again declined to dissolve this injunction, and referred the cause to a commissioner to ascertain the amounts, character and priority of the liens on this tract of two thousand acres, which might remain unsatisfied and to whom due. Depositions of R. F. Dennis, J. IT. Arbogast, the defendant, and John 0. McLaughlin were taken by the plaintiff and substantially prove the allegations of the answer. The bill was taken for confessed as to the defendant, Stalnaker. The commissioner made his report September, 1882, the contents of which sufficiently appear from the final decree made September 30, 1882, and which was as follows:

" This cause came on again this clay to be further neard upon the papers formerly read, and on the motion of the defendants to dissolve the injunction heretofore awarded in this cause, and upon the report of Commissioner Jones, to which there are no exceptions, and was argued by counsel. On consideration whereof, it is adjudged, ordered and decreed that said report be confirmed; and it appearing to the court that the plaintiff, Jacob S. Wamsley, is indebted by reason of a judgment heretofore obtained against him, being the judgment mentioned and described in the plaintiff's bill, as of date May 15, 1880, to the defendant, Hamilton Stalnaker, in the sum of two thousand one hundred and thirty-six dollars and twenty-six cents, including interest and damages, with interest thereon from the 21st day of September, 1882, till paid, it is therefore adjudged, ordered and decreed that the defendant, Hamilton Stalnaker, recover of the plaintiff, Jacob S. Wamsley, the said sum of two thousand one hundred and thirty-six dollars and twenty-six cents, with interest thereon from the 21st day of September, 1882, till paid, which is the amount in full of the judgment enjoined, with interest and damages, as shown by statement 'X; filed and and adopted by the court, and the costs of the defendant in this suit, including an attorney's fee to be taxed therein of twenty dollars. It further appearing to the court that the debt set forth in the bill as due Edgar Campbell has been paid off and discharged by Jacob H. Arbogast, and that the judgment of C. A. Hull, for S. L. Gibson, also set forth therein, has been released in so far as it affects in any way the land sold by J. H. Arbogast to J. S. Wamsley, and that the priority of the other liens in said bill mentioned is as follows, viz:

"Class 1. A judgment in favor of J. H. Kindig and Peter Wein for thirty-seven dollars and sixty-five cents, with interest thereon from the 12th clay of June, 1872, till paid, and eight dollars and ninety cents, aggregating, with interest to September 14, 1872, as shown by said commissioner's report, the sum of sixty-nine dollars and seventy-two cents.

"Class 2d. A judgment in favor of Hamilton Stalnaker for one thousand dollars, with interest thereon from the 23d day of April, 1873, till paid, seventeen dollars and thirteen cents costs, aggregating, with interest to September 14, 1872, as shown by said commissioner's report, the sum of one thousand rive hundred and eighty dollars and eighty cents.

"Class 3d. A judgment in favor of J. H. Kindig and P. Wein for one thousand four hundred and seventeen dollars and sixty-four cents, with interest thereon from the 2d clay of October, 1873, till paid, and twenty-two dollars and ninety-two cents costs, aggregating, with interest to September 14. 1872, as shown by said commissioner's report, the sum of two thousand two hundred and one dollars and thirty-six cents.

"It further appearing to the court that the amount herein-before decreed to Hamilton Stalnaker is purchase-money on a tract of two thousand acaes of land purchased by Jacob S. Wamsley from Jacob H. Arbogast, and that said Wamsley has a...