WINGFIELD v. NEALL
| Decision Date | 06 March 1906 |
| Citation | 60 W.Va. 106 |
| Parties | WINGFIELD v. NEALL, TRUSTEE, et al. |
| Court | West Virginia Supreme Court |
1. Appeal.
An appeal was unknown to the common law. In the civil law and equity jurisprudence its object was to take the whole case to the higher tribunal, there to be tried and determined de now upon the issues between the parties, as though the cause had originated in the appellate court, (p. 111.)
2. Appeal FRom Circuit to Supreme Court Appeal is New-Suit.
But, under our statute, an appeal from a circuit court to the Supreme Court of Appeals, is the beginning of a new, and not a continuation of an old, suit. (p. 114.)
3. Purchaser op Property.
One who, after final decree and termination of the suit, and before an appeal is obtained, purchases, in good faith, property which is the subject of the litigation, will be protected in such purchase. (p. 115.)
4. Purchaser Pendente Lite Lis-Pendens.
In determining the question as to whether or not a purchase is made pendente lite, the test is, was there, at the time of the purchase, a suit pending, involving the rule, lis pendens. If so, the purchase is pendente lite. It is otherwise if there is no such suit pending. (p. 108.)
5. Lis Pendens.
The object of the rule, lis pendens, is to preserve the property which is the subject of litigation, so as to enable the court, when the questions involved in the suit are finally determined, to execute its judgment or decree. (p. 110.)
6. Sale oF Real Estate for Taxes Injunction Title.
Where the holder of a deed of trust, given to secure deferred installments of purchase money, advertises the land conveyed by said deed for sale, to pay such installments, and such sale is enjoined; and, pending the litigation, the land is regularly returned delinquent for the non-payment of taxes thereon, and legally sold and conveyed to one who, after taking such conveyance, sells and conveys the same, the grantee of such person secures good title to the property thereby conveyed. (p. 116.)
Appeal from Circuit Court, Tucker County.
Suit by Hannah Wingfield against J. S. Neall, Trustee, et al. Decree for defendants and plaintiff appeals.
Reversed.
J. P. Scott and C. D. Smith, for appellant.
W. B. Maxwell and A. Jay Valentine, for appellees.
By deed dated the 28th day of March, 1896, Mary A. Neall conveyed to A. C. Dunbrack three parcels of land, containing about four and a half or five acres, situated in the town of Parsons, Tucker county. Although the conveyance bears this date, Dunbrack did not comply with the terms of sale until the 29th day of June, 1896, on which date he executed his notes and a deed of trust, to secure the deferred payments on the property. In the meantime, on the 4th day of June, 1896, Mary A. Neall insured the house situated on the property in the sum of $2,000, and upon her conveyance to Dunbrack, offered to assign to him the policy, upon payment of the sum paid by her on the premium. This Dunbrack refused to do, and she had the policy assigned to her, on the books of the company. The house was afterwards destroyed by fire, and Mary A. Neall made a composition with the insurance company by which she accepted $1,000, as compensation for the loss, and thereafter had her trustee to advertise the property for sale, to pay the sum secured in the deed of trust given by Dunbrack.
Dunbrack secured an injunction, restraining this sale, on the ground that the policy inured to his benefit, and claimed that the amount thereof was sufficient to pay off and discharge the trust debt.
By decree entered November 28, 1898, the circuit court held that Dunbrack was entitled to have the amount of the insurance policy credited upon his debt, and decreed that upon the payment by him of the sum of $31.80, the balance found due, into court, the clerk of the circuit court should execute a release of the lien of said deed of trust. This sum was paid, and on the 23rd day of May, 1900, the clerk executed the release, which was, on the same day, recorded in the office of the clerk of the county court.
From this decree, Mary A. Neall, on the 28th day of January, 1899, secured an appeal to the Supreme Court. This appeal was never perfected, and at the following term of court, held at Charles Town, a motion was made to dismiss it. This motion the Court refused to entertain, holding that, inasmuch as there had been no bond filed, there was no appeal pending. On the 8th day of November, 1900, the appeal allowed January 28, 1899, was dismissed, and another appeal allowed, which was perfected, and heard and determined on April 1, 1904, this Court holding that Dunbrack, not having paid the xjremium on the policy, was not entitled to have the amount thereof credited on his debt.
On the 21st day of August, 1900, Hannah Wingfield purchased from Dunbrack this property, for the sum of $1,300, which amount she borrowed from J. W. Knopsnyder, and executed a deed of trust to secure to him said sum, with W. G. Conley, as trustee.
Upon the cause of Dunbrack v. Neall, being remanded to the circuit court, Mary A. Neall had her trustee advertise the property for sale, whereupon Hannah Wingfield applied for and obtained an injunction restraining the same, and later filed her bill, setting up the facts already stated, and the further fact that the property was returned delinquent for the years of 1897 and 1898, for the taxes thereon, in the name of A. C. Dunbrack, and purchased by Wm. G. Conley and J. H. Moore; that Moore assigned the benefit of his purchase to Conley, who took a deed for said land from the clerk of the county court, and that she, on the 27th day of May, 1904, purchased the land from Conley. On the final hearing, the circuit court dissolved the injunction, and dismissed the bill.
The first question for consideration is, whether or not the plaintiff, Hannah Wingfield, was a pendente lite purchaser. It is claimed by her that the final decree had been entered in the circuit court, adjudicating that the Neall trust lien had been paid off, except the sum of $30.80, and providing when this amount was paid, for the clerk to release the trust lien; that the sum was paid, and the clerk did release the lien; also, that Mary A. Neall in the suit of Dunbrack against her, had applied for and obtained an appeal, which she did not mature by giving bond and printing the record, and this having continued for some time, a motion was made to dismiss it, but this Court decided that there was no appeal to dismiss, because, while it had been allowed, it had not been matured by giving bond, and that after said ruling of this Court, and on the 21st day of August, 1900, she purchased the property in question, and paid a valuable consideration for it, and that afterwards, on the 8th day of November, 1900, Mary A. Neall renewed her application for an appeal, which was granted and the same matured; and that, therefore, at the time she purchased, the appeal was not pending, and that she was not a pendente lite purchaser, but that she is a purchaser for value, without notice. But the appellees claim that she had actual knowledge of the suit, and also* that she purchased within the time allowed by law for an appeal, and that an appeal was taken within that time, and the decree of the circuit court being reversed, her title fell with such reversal.
Is the question of lis pendens involved? In solving this question, it is necessary to determine whether the property sought to be subjected to the trust lien debt is the subject of the litigation. If it is, the doctrine applies; if not, it does not apply.
It is true that the suit of Dunbrack v. Neall was for the purpose of adjudicating whether or not the debt secured by the trust deed given by Dunbrack to J, S. Neall to secure the purchase money upon the property sold and conveyed to him by Mary A. Neall had been paid, but the legal title to the property was in the trustee, and Du nbrack held only the equity of redemption.
If the lien created by the trust deed, which is a lien upon specific real property, remained unpaid, the property was subject to be sold in satisfaction thereof, thereby directly affecting the property. If the relief sought in a suit is for the recovery of the possession, or the enforcement of a lien, or an adjudication between conflicting claims of title, or any other judicial action affecting the title, possession or right to possession of specific property, then the property is so directly affected by the decree sought thg/t it becomes subject to the law of lis pendens. While this was not a suit brought by Mary A. Neall to enforce her trust lien, yet she was proceeding to enforce it as provided by the trust deed when enjoined, and her right so to do questioned by Dunbrack, and in this suit of Dunbrack against her their rights must be determined, and if her lien is found to be unpaid, still the same rule will apply as would apply if Mary A. Neall had come into equity to enforce it. If the circum- stances had been such as would have given her the right to file a bill in equity to enforce the trust deed, and she had done so, there is no doubt but that the law of lis pendens would have applied, the prime object of the rule being to preserve the subject of litigation, in order to make it possible for the courts to execute their judgments and decrees. As said in Newman v. Chapman, 2 Rand. (Va.) 93:
Of course, if the appellant had purchased before the final decree of the circuit court, adjudicating that the trust lien had been paid, and instead of so decreeing, it had been...
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