Woods v. Douglas
| Decision Date | 17 June 1899 |
| Citation | 33 S.E. 771,46 W.Va. 657 |
| Court | West Virginia Supreme Court |
| Parties | WOODS, Special Commissioner. v. DOUGLAS et al. |
SUBROGATION OF SURETIES—PRIORITIES—ANSWER—AFFIRMATIVE RELIEF.
1. Where land is sold by a special commissioner, who takes notes, with sureties, for the deferred installments, and the purchaser failing to pay said purchase-money notes, or any of them, said special commissioner takes judgment on said note or notes against the purchaser and his sureties, and one of the sureties against whom judgment is taken pays off said judgment, he will thereby be entitled to be subrogated to the liens created by taking said judgments and docketing the same, not only against the land so sold, but any other real estate owned by said purchaser, situated in the county in which such judgment is docketed.
2. The right of subrogation thus acquired will entitle such surety so paying said judgment to priority over a trust lien executed and recorded on other real estate situated in said county after such judgment was recovered and docketed, should it become necessary to resort to it for satisfaction.
3. Where a party is not made defendant in a suit in equity, and files a paper in the case, which he terms an "answer and petition, " in which he prays for affirmative relief, and sets up affirmative matter, but upon which no process issues, he can thereby obtain no affirmative relief against a defendant in said suit.
(Syllabus by the Court.)
Appeal from circuit court, Barbour county; J. H. Holt, Judge.
Suit by Samuel V. Woods, special commissioner, against S. C. Douglas and others.
Judgment for complainant, and defendant J. N. B. Crim appeals. Reversed.
On the 13th of July, 1888, Samuel V. Woods, as special commissioner, sold certain mill property, houses and lots in the town of Philippi, Barbour county, under a decree of court, to S. C. Douglas, for the sum of $9,-050, with which purchase said Douglas failed to comply, and by a subsequent decree of court said property was again offered for sale by said special commissioner, and again sold to said Douglas at the price of $7,800, the purchaser paying $1,000 cash, and executing three joint and several obligations for $2,266 2/3 each, payable in one, two, and three years, with interest, dated July 16, 1888, for the residue, which sale was afterwards confirmed, saving the right to those entitled thereto to proceed against said Douglas for $1,250, the difference between said first and second sales to him. On July 19, 1888, a rule was awarded against said Douglas to appear and show cause, if any he could, why he should not be required to pay into the court the said $1,250, and the special commissioner was directed to withdraw and collect the said purchase-money notes as they severally fell due, and to retain the same, subject to the order of the court. These proceedings were had in the chancery suit of Benjamin B. Stout and others against the Philippi Manufacturing & Mercantile Company, which was pending in the circuit court of Barbour county. On the first Monday in April, 1894, said Woods, special commissioner, filed his bill in the circuit court against S. C. Douglas, J. N. B. Crim, S. J. Heatherly, J. E. Heatherly, H. F. Brohard, A. G. Dayton, trustee, Case Manufacturing Company, Samuel Woods, and C. Kelley, reciting therein the above facts in regard to the sale of said real estate, and further alleging that, said purchase-money notes being unpaid at their maturity, he brought an action of debt in the circuit court on the first of said notes, and on April 5, 1890, said Douglas confessed a judgment thereon for $2,500.13, with interest from that day, and $3.75 costs, and on the second of said notes he recovered a judgment on August 30, 1890, for $2,554.90, with interest from that day, and $0.85 costs, and on November 16, 1890, he recovered a judgment upon said second note against said Crim and Heatherlys for $2,584, with interest from that day, and $14.75 costs; that, in addition to said down payment of $1,000 made July 16, 1888, he has collected the following amounts from said Crim: On September 5, 1891, the sum of $2,647.45, on September 16, 1891, $2,000, and on September 28, 1891, $66.-47, —and that all the residue of said purchase money remains unpaid to the plaintiff; that such further proceedings were had that at the February term of court, 1894, S. C. Douglas, upon said rule, was ordered to pay the plaintiff, on account of the difference between the said two sales, the further sum of $1,250, with interest from July 13, 1888, which has never been paid, but upon which plaintiff is informed he is entitled to be credited with $47.14. The plaintiff also charges that, as he has never conveyed to S. C. Douglas the real estate purchased by him on the 16th of July, 1888, the $1,250, with interest from July 13, 1888, on account of the difference between said sales, constitutes a vendor's lien upon the real estate sold him by the plaintiff. This real estate consisted of a lot of ground in Philippi, containing 1 1/4 acres, on which there was a steam flouring mill and a planing mill; also a residue of three-fourths of an acre conveyed to said company by C. C. Hovatter and wife, on which is a dwelling house. Plaintiff further alleges that the amount due him on May 22, 1894, including said $1,250, with interest on the whole of said purchase until that day, is $6,001.11, all of which constitutes a lien on said real estate sold by plaintiff to said Douglas, and that his three judgments against Douglas were docketed in the judgment lien docket of said county in the order in which they were recovered, —on April 5, 1890, August 30, 1890, and December 17, 1890, —and constitute judgment liens upon all the other real estate owned by said Douglas superior to the trust liens thereon, and no executions have ever been issued upon said judgments. Plaintiff further charges that said Douglas is the owner of two tracts of land in said county on Elk creek, one containing 122 acres, the other adjoining tract containing 24 1/2 acres, and another of 96 acres adjoining same; that he also owns a lot containing six-sevenths of an acre in the town of Belington, in said county, upon which is a flouring mill; that, after the recovery of his judgments, and after the same were docketed, said Douglas conveyed all of said tracts on Elk creek in trust to A. G. Dayton, trustee, to secure H. P. Brohard a debt of $3,000, payable in five years, with interest from February 1, 1893, payable annually, and in default of the payment of interest the whole of the debt to become payable; also that after said judgments were docketed, to wit, on the 11th of February, 1893, the said Douglas conveyed the lot in Belington to Dayton, trustee, in trust to secure a debt of $1,300 due the Case Manufacturing Company, of Columbus, Ohio, by two notes of $650 each, dated October 10, 1892, payable in 6 and 12 months, with interest; also on August 30, 1893, a judgment was recovered by C. Kelley, for the use of Samuel Woods, against said Douglas, for $196.79, with interest from that day, and $2.25 costs; and there are no other liens on said lands. Plaintiff further charges that said $1,250, with interest thereon from July 13, 1888, is a vendor's Hen upon the property sold to Douglas by him, for which he has no other security, and that the residue of the debts due him are also a vendor's lien upon the property sold to Douglas by the plaintiff on July 13, 1888, and constitute a Judgment lien upon all of his other real es tate superior to all other Hens thereon, and is also a lien prior in point of time to said trust liens and the lien of the judgment of said Kelley; and the said Douglas owns no other real estate except that hereinbefore set forth, and his personal property is wholly insufficient for the payment of the debts due plaintiff which are in judgment; and that said Dayton, trustee, had notice before the execution or recordation of either of said deeds of trust of the proceeding in said original chancery cause to charge said land sold to Douglas with the debt of $1,250 and interest as a vendor's lien; and he prays that said $1,250, with interest, may be fixed as a vendor's lien on the property sold by him to Douglas superior to all other liens thereon; that the residue of the debts due him may be charged as a vendor's lien, and also a judgment lien upon the other real estate of said Douglas, and first in priority thereon; that the real estate of said Douglas may be subjected to the payment of the debts chargeable thereon; and for general relief. J. N. B. Crim filed bis answer to this bill, admitting that he was one of the sureties of said Douglas upon his purchase-money obligations to the plaintiff for said mill property, and alleges that he, as such surety, has paid plaintiff, September 5, 1891, $2,647.45, September 16, 1891, $2,000, September 28, 1891, $66.47, for which sums he claims the right to be substituted to the rights of plaintiff in regard to the lien upon said real estate, and said sums of money paid back to him out of a sale of said property; that prior to January 1, 1891, he and said Douglas were partners in said mill property, he owning one-fourth interest, which he had fully paid for, and that day he sold his interest to said...
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