Opinion
08-16-1877
BARGER v. BUCKLAND & als.
Sheffey and Williams, for the appellant. Graham and French, for the appellees.
Absent, Anderson and Burks, Js.
I. Pending a suit by judgment creditors against their debtor and others, to set aside a deed of trust or subject the surplus to payment of their debts, the debtor is declared a bankrupt on his own petition, and in the suit he claims his exemption and homestead out of the surplus of the purchase money of the land, after satisfying the debt secured by the deed of trust. The circuit court dismisses the debtor's application, and makes a decree distributing the fund. The bankrupt has such an interest in the case as entitles him to take an appeal.
II. In such a case the trustee in the deed did not sign it and it does not appear that he accepted or acted under it; and he lives out of the state, and is not a party to the suit. The court may decree a sale of the land and appoint a commissioner to make the sale.
III. A part of the tract of the land lies in Virginia and a part in West Virginia. The court may decree a sale of the whole tract.
IV. The bond executed under the act of May 28, 1870, entitled " an act to prevent the sacrifice of personal property at forced sales," Session Acts 1869-'70, ch. 120, p. 162, is a lien on the land of the obligors who are alive, from the return of the bond to the clerk's office; and the surety in the bond paying it off is entitled to be substituted to the lien of the bond upon the land of the principal obligor.
V. Where the bill and proceedings specifies the land, a decree for the sale of the land in the bill and proceedings mentioned, or so mach as may satisfy the purposes of the decree, is sufficiently certain. That is certain which may be made certain, applied to the case.
VI. Judgment creditors seek to subject land of their debtor which has been conveyed in trust to secure a debt; and in their bill they charge that the deed was intended by the grantor to defraud his creditors, and the trustee and creditor in the deed were cognizant of the fraudulent intent at the time. The creditor answers and denies the fraud and proves his debt.--HELD:
1. It was proper to proceed in the cause and decree satisfaction of the plaintiff's debts out of the surplus of the purchase money of the land after the satisfaction of the debt secured by the deed.
2. It is a proper case for a decree between defendants, and, the debt of the trust creditor having been established, for a decree in his favor for the debt.
3. Though the deed of trust conveys other land lying in West Virginia and personal property, it not being alleged that the creditor has received anything from that source, and no motion made by any of the parties for an enquiry on the subject, which, if made, would no doubt and should have been ordered, the decree will not be reversed for the failure to make the enquiry.
4. As the proofs did not sustain the charge of fraud in the deed and the guilty knowledge of the trust creditor, he is entitled to a decree in the cause for his debt.
VII. There are three suits by judgment creditors to subject the land of their debtor which he had conveyed in trust to secure a debt, and the debtor, the trustee and trust creditor are made defendants in each of them. The process is properly served on all the parties in two of the cases, and on the trustee and creditor in the third. The court made an order that the causes shall be consolidated and heard together, and that is done; and the debtor appears and makes defense in all the causes without objecting that the process was not properly served in the third case. He thereby waived the objection on that ground, if he had any.
VIII. Though the causes were heard together, each plaintiff is entitled to a decree for his separate costs.
IX. The decree directs the commissioner to sell the land in the bill and proceedings mentioned, or so much thereof as may be necessary to satisfy the purposes of the decree. The commissioners report that they sold the tract of land in the bill mentioned, known as the home tract. This tract is described in the bills as lying partly in Tazewell county and partly in Mercer county, West Virginia; but how much in each is differently stated in the different bills; and it is doubtful whether the commissioners sold the whole or only that in Tazewell county.--HELD: The report leaving it in doubt how much or what they sold, the sale should be set aside.
X. A defendant gives a written notice to the plaintiffs that he will move the court to set aside a decree made in the cause as a decree by default; and he sets out in his notice, which is signed by his counsel, the grounds he relies on for setting the decree aside. If the decree was not a decree by default, it was an interlocutory decree, and his notice may be treated as a petition for a rehearing of the decree, and acted on by the court as such a petition.
XI. In a suit by judgment creditors to subject their debtor's land to the payment of their debts, pending the cause the debtor is declared a bankrupt, and he applies for a homestead under the constitution and law of Virginia and the acts of bankruptcy of the United States.--HELD:
1. That the assignee in bankruptcy of the defendant debtor should be made a party to the suit.
2. The court should proceed to adjudicate upon the right of the debtor to his homestead.
In 1872 three suits in equity were instituted in the county court of Tazewell county; one by Austin Mullins, one by D. W. Marrs, and one by Jacob W. Buckland, all of them against Jacob Barger, Evan H. Brown, and C. D. and H. W. Straley, seeking to subject the land of Barger, which had been conveyed to Brown to secure a debt to the Straleys to satisfy the claims of the plaintiff against Barger.
Mullins in his bill stated, that on the 28th of June, 1870, John Barger, Sr., for the benefit of John Barger, Jr., recovered a judgment against Jacob Barger for $131.18, with interest from the 29th of March, 1859, subject to a credit for $57.05, paid January 2d, 1867, and costs, $6.81. That in August, 1870, an execution was issued upon this judgment, under which the sheriff sold property of Jacob Barger, which was bought by Barger; and in pursuance of the act of assembly to prevent the sacrifice of property, the said Barger gave a twelve months bond for the amount of the sale, with complainant as his security; which bond was dated the 16th of December, 1870, and was returned to the clerk's office, and which complainant is advised, has the force of a judgment. That this bond not having been paid, after it fell due a judgment was obtained thereon, and an execution issued against Barger and complainant; which was paid by complainant.
Complainant further states, that on the 16th of December, 1871, a deed was admitted to record in the clerk's office of Tazewell county, by which Barger conveyed all his real and personal estate to Evan H. Brown, in trust to secure certain debts therein alleged to be due C. D. and H. W. Straley. He claims that as the recordation of the said deed was subsequent to the return of the said twelve months' bond to the clerk's office, that bond having the force of a judgment, is entitled to priority over the debt secured by the said deed; and that complainant having paid off that bond he is entitled to be substituted to the lien created by said bond. He charges that the said Barger is the fee simple owner of a tract of land on which he resides, supposed to contain about three hundred and eighty acres, lying on the Brushy Fork of Bluestone, and supposed to be in the county of Tazewell, although a small portion may be in Mercer county, West Virginia. He prays that the said land may be subjected to said lien, and sold for the payment thereof, and for general relief.
Marrs sets out a judgment which he had recovered against Barger on the 6th of March 1872, and which was immediately docketed. He states the deed to Brown, and sets out the real and personal property embraced in it. He states the real estate as four hundred and five acres, lying in McDowell county, West Virginia, on Tug and Elk Horn, adjoining the lands of Otis Perdue and others; also two tracts of land on Brush Fork, a branch of Bluestone, both containing by survey three hundred and eighty acres, and the same on which said Barger now lives; part of the said two tracts lying in Tazewell county, Virginia, and the balance in Mercer county, West Virginia; all this to secure a debt of $857.38. He charges that this deed was executed by Barger with intent to delay, hinder and defraud the complainant and other creditors of said Barger, and that Brown and the Straleys knew the fraudulent intent of said Barger. That the property embraced in it was worth at least $8,000, and it conveys everything owned by said Barger, and even embraces his property exempt by law from execution.
Complainant further states that about two hundred acres of said land lies in Tazewell county, on which his judgment is a lien. He prays that he may have a decree for his debt; that the property embraced in said deed of trust, or so much as is necessary, that is situated in Tazewell county, be subjected to its payment, and for general relief.
Jacob W. Buckland, who sues for the benefit of Russell B. Tabor, sets up a judgment recovered against Barger in the county court of Tazewell, on the 29th of May 1872, which had been docketed. He sets out the deed to Brown, and the property described therein as it is set out in the bill of Marrs, and the amount of the debt purporting to be secured thereby at $857.38. He charges that it was made by said Barger wholly without consideration, and with intent to hinder, delay and defraud the complainant and the other creditors of Barger, and that Brown and the Straleys were cognizant of the intent.
He charges that his judgment is a lien upon that portion of Barger's lands (about two hundred acres) which lie in the county of Tazewell; and he prays that the property embraced in said deed of trust, or so much thereof as may be necessary, and that situated in this county, may be subjected to sale for the payment of his said judgment; and for general relief.
The process in the first two of the cases were served on Barger and Brown, and the Straleys were returned as absent defendants. In the third case the return of service as to Barger is--" Executed on Jacob Barger by leaving a copy of this summons at his residence with George W. Barger, a white person over the age of sixteen, and explaining its contents to him; Jacob Barger not being found at home." The return as to the other defendants was as in the other cases.
On the 28th of November 1872 the county court made a decree to consolidate the three causes and hear them together. And the non-resident defendants having been regularly proceeded against in the manner prescribed by law, the bill was taken for confessed as to all the defendants; and the cause then coming on to be heard, the court held that the plaintiff, Mullins, should be substituted to the lien of John Barger, mentioned in Mullin's bill, and paid by him; and that this lien was prior and superior to the trust deed to secure the Straleys; but the said trust deed, if bona fide and valid, was superior to the liens of Marrs and Buckland. And it was referred to a commissioner of the court to ascertain and report to the court whether or not the debts secured by the said deed of trust were bona fide and valid, and the consideration and amount thereof; and also to report the annual rent or value of the lands of Jacob Barger sought to be subjected.
At the February term 1873 of the court, Jacob W. Buckland, by leave of the court, filed his petition in the cause. In it he states, that on the 30th of October 1872, R. A. Hale recovered a judgment in the county court of Tazewell against Jacob Barger and the petitioner for the sum of $185, with twelve per cent. interest thereon from the 29th of October 1870, and costs. That petitioner was the surety of Barger, and an execution having issued upon the judgment to prevent a sale of his property he had been compelled to pay it. He claims to be substituted to all the rights of Hale, and that he is entitled to recover the amount from Barger. He sets out the real estate conveyed by Barger to Brown as it is described in the bill he had filed, and charges fraud in the deed as in that bill. And he asks to be admitted as a party plaintiff in the said suits.
The process to answer the petition was served on Barger and Brown; and the Straleys filed their answer to the bills, which was agreed to be taken as embracing the petition. They say in their answer, it is not true that the trust deed executed by Barger to secure them was made on no valuable consideration, or for the purpose of hindering, delaying or defrauding the creditors of Barger. It was executed to secure the payment of a note executed the 8th of December 1871 for $857.38, with interest from date at twelve per cent. for money loaned to them by Barger. They state several payments on this note by Barger, leaving due on the 18th of April 1863 $467.08.
They state further, that on the 5th day of April 1861 Barger executed to respondents his note for $625, due twelve months after date with interest from date, and executed to Hercules Scott as trustee, a deed conveying to him ____ acres of land lying in Mercer and Tazewell counties, to secure the payment of said last mentioned note. And they file the deed with their answer. They say this note was executed for money loaned, and cash paper loaned by them to Barger. And they state credits upon this note, leaving a balance due April 3d, 1873, of $419.63. They deny all fraud, and admit the priority of the claim of Mullins to the deed of December 14th, 1871, but not to the deed of April 5th, 1861. The description of the land conveyed in this last mentioned deed is given in the opinion of the court delivered by Moncure, P.
In May 1873 the commissioner returned his report. He reports that the debts of the Straleys secured by the deeds of trust are bona fide and valid, and were given for the loan of money to the amount of the face of the notes. The amount due on the debt secured by the deed of December 8th, 1871, on the 16th of May 1873, was $460.52; that secured by the deed of April 5th, 1861, was at the same date $417.26. The rent of Barger's land he reports at $100 a year.
The cause came on to be heard on the 29th of May 1873; when the court confirmed the report of the commissioner, and, fixing the order of priorities among the different creditors, made a decree in their favor for the several amounts due them, including their costs at law, and also each one his costs in this case. And the court considering the lands of the said Barger in the proceedings in these causes mentioned are liable to the payment of the sums above decreed, but it being admitted that the title to said land is vested in Hercules Scott, trustee in the first deed of trust, and that the said Scott is a non-resident of this state and cannot be compelled to act under said trust deed, it is further " decreed that unless the defendant Barger shall pay the amount above decreed on or before the 30th of June next," commissioners named " shall proceed to sell the land in the bill and proceedings mentioned, or so much thereof as may suffice, to the highest bidder," & c., & c., for so much cash as will defray costs of suit and expenses of sale, and for the residue of purchase money, on a credit of six, twelve and eighteen months, with interest from the day of sale.
The commissioners reported, that after advertising, & c., they sold the tract of land in the bill mentioned, known as the home tract, at public outcry, to C. D. and H. W. Straley, for the sum of $1,700, that being the highest bid offered, and they had complied with the terms of sale.
After signing their report they add: Your commissioners would further report, that they find from the commissioners' books that the aforesaid lands, so sold as aforesaid, were assessed at the last assessment made for the purpose of taxation at $1,189.50. See extract made from commissioners' books herewith filed, marked S. H. The land sold for more than its assessed value.
The abstract from the commissioners' books states the quantity of land at one hundred and eighty-three acres.
Barger excepted to the report of the commissioners: 1st. That they only advertised the lands of said Barger in Tazewell county, and sold the lands lying in Tazewell and Mercer counties, West Virginia. 2d. The decree did not authorize the commissioners to sell the land in Mercer county. 3d. The land sold, as a whole, did not bring half its value, or one half of what would be or is a fair cash value of said land. And he filed affidavits of two persons, who stated they knew the lands, one of whom valued them at $3,000, and the other at $4,000.
Under the operation of the act of April 2d, 1873, these causes were removed to the circuit court of Tazewell county, and came on to be heard on the 5th day of September 1873; when the court overruled the exceptions of Barger to the commissioners' report and confirmed it, and disposed of the cash received in payment of the expenses and costs.
At the September term of the court for 1874, Barger upon notice to the parties, moved the court to review and reverse as erroneous the decrees by default of May 29th, 1873, and of September 5th, 1873. And in his notice he sets out the grounds upon which he proposed to found his motion. These are substantially the same relied upon in the petition for appeal, and which are stated in Judge Moncure's opinion.
The plaintiffs in the suits filed a plea in answer to the motion, in which they state that Barger had, on the 1st of September, 1873, been adjudged a bankrupt upon his own petition; and that the commissioners acting under the authority of the decree of 29th May, 1873, in these causes, were, by an order of restraint from the said Federal court, enjoined from proceeding in any further manner upon the duties imposed on them by the court under which they acted. By reason whereof the defendants say that the said Barger has been and is divested of all right, title and interest in and to the matters and things set forth in said notice, and has wholly incapacitated himself from maintaining the same.
On the hearing of the motion, the court, after referring to the order of the United States court prohibiting any further proceedings in these causes in this court, on consideration thereof declined to hear the said motion until the said Barger should dismiss the said restraining order. And time was given him until the next term of the court to have the said restraining order dismissed.
The order referred to in the plea of the defendants to the said motion was made upon the petition of Barger, filed in the United States court, which, after setting out that he had been declared a bankrupt, and also setting out the debts secured by the deeds of trust on his land, and his judgment creditors, the suits brought by them for the sale of the land, and the sale at the price of $1,700, and claiming that the proceedings of any other court affecting his rights or property, after filing his petition in bankruptcy, were illegal and void, he insists upon his rights both under the state and bankrupt laws, to claim his homestead exemption. He states that the fund arising from the sale of his land is undistributed, and he prays that C. D. and H. W. Straley, the purchasers, be enjoined from paying the purchase money, and that the judgment creditors be enjoined and prohibited from taking steps in the state court towards a distribution of the fund; and that the surplus of the $1,700 purchase money, after satisfying the deeds of trust, be set aside as his homestead, and for general relief.
In October, 1873, upon the motion of Jacob Barger the restraining order hereinbefore referred to was dissolved, and leave was given to the creditors of Barger and to Barger (or his assignee John Walsh for him) to litigate in the circuit court of Tazewell, and such other state court as may have jurisdiction, including the court of appeals of Virginia, the matters in controversy between said Barger and his creditors, and their respective rights as to the liabilities and property of said Barger.
The cause came on to be finally heard on the 17th of May 1875, upon the papers formerly read, and the motion of Barger to reverse the decrees of the 29th of May 1873, and of the 5th of September 1873, and the plea of the defendants to said motion, and the record of the said bankruptcy proceedings. Upon consideration whereof, the court was of opinion that the decree of the 5th of September 1873 was not a decree by default, it appearing that said Barger appeared at that time in said cause and made defence, and hence that said cause could not be corrected in that court upon the said motion of said Barger; and it was decreed that the motion be dismissed with costs. And it appearing to the court that the bonds executed for the purchase money of the land, sold under the decree of the court, had matured, and then amounted to $1,707.63, the court after stating the amount due at that date to each of the said parties, showing that all of them might be paid out of the fund, leaving a balance of $56.50, directed the commissioners to assign to each of said creditors the amount due him. And it further appearing that C. D. and H. W. Straley had not had possession of the land since their purchase, they were directed to be credited upon their bonds with the said balance of $56.50; and a writ of possession was directed to issue, and a commissioner was appointed to convey to the said Straleys all the right, title and interest of the defendants, Jacob Barger and Evan H. Brown, in and to the said land, with covenants of special warranty, & c. Jacob Barger thereupon applied to a judge of this court for an appeal; which was allowed.
Sheffey and Williams, for the appellant.
Graham and French, for the appellees.
OPINION
MONCURE, P.
The court is of opinion that the appellant has a right to prosecute this appeal; for although pending the suit, in which the decrees appealed from were rendered, he became a bankrupt, whereby his estate generally was vested in his assignee in bankruptcy; yet he still had, and continues to have, such an interest in his estate, on account of his claim to exemptions and homestead of the same, as entitles him to prosecute this appeal, which therefore ought not to be dismissed on the ground of his want of such an interest.
The court is further of opinion that there is no error in the decree of the 29th day of May 1873, " because it decrees sale of land, the legal title to which is outstanding in Hercules Scott, who was no party to any of the suits, and was not in any way brought before the court." The said legal title became vested in Hercules Scott, if at all, under and by virtue of a deed of trust bearing date the 5th day of April 1861, which was about that time duly recorded in the clerk's offices of Mercer and Tazewell counties, both of which were then in Virginia, and which adjoin each other. The land conveyed by the said deed is therein described as " a certain tract or parcel of land lying partly in Tazewell county, and the remaining part in Mercer county, the tract containing about three hundred and eighty acres, being the land whereon I now reside, containing all the land I own on the waters of the Brush Fork of Bluestone, the same composed of two surveys, be the same more or less, in trust to secure C. D. and H. W. Straley in the sum of $625, for which there is a bond this day executed, bearing date the 5th April 1861, and due twelve months after date, with interest from date." Since the date of that deed Mercer county has become a part of West Virginia, while Tazewell county, in which the mansion house on the said tract of land is situate, and in which the appellant always has resided, and yet resides, still remains in Virginia. The deed was executed only by Jacob Barger, the appellant. Hercules Scott did not execute the deed, and it does not appear that he ever acted under it, or accepted it, or its terms, or had any knowledge of its execution by the grantor. All the other parties having any interest in, or title to the land, resided and continue to reside in Virginia, except the said Scott and the Straleys, who, it seems, reside in West Virginia. The Straleys have filed their answer, and thus submitted themselves and their interest in the said land to the jurisdiction of the court in which the decrees appealed from were rendered. Under these circumstances, the circuit court of Tazewell county had jurisdiction to make the said decree of the 29th of May 1873, notwithstanding the said Hercules Scott was not a party to the suits in which it was rendered. Penn v. Lord Baltimore, 1 Vez. Sr. R. 444; Massie v. Watts, 6 Cranch 148; Dickinson v. Hoomes' adm'r & c., 8 Gratt. 353, 410-428, and cases therein cited.
The court is further of opinion, that there is no error in the said decree, " because it decrees substitution in favor of Austin Mullins to the lien of a debt which was a liability incurred prior to the 10th day of April 1865, and then, without any waiver on the part of Jacob Barger, orders sale of the land on six, twelve and eighteen months, instead of one, two and three years credit. Code of 1873, ch. 174, § 3." The liability of Austin Mullins as surety for Jacob Barger was incurred by a bond bearing date the 16th day of December 1870, payable twelve months after date, and executed in pursuance of an act approved May 28, 1870, entitled " an act to prevent the sacrifice of personal property at forced sales" --Acts of Assembly, 1869-'70, chapter 120, page 162; which bond by said act was required to be returned in the same manner as a forthcoming bond is required to be returned, and was declared, from and after its return, to have, as against the obligors therein then living, the force of a judgment. The surety in this bond, Mullins, was entitled by substitution to the lien thereby created under the said act; which lien certainly was to secure a debt contracted, or liability incurred, after the 10th day of April 1865. Id., ch. 277, p. 426; Code, ch. 174, § 3, p. 1123.
In fact, all the judgments on account of which the land was decreed to be sold in these cases, were obtained after that day; and the deed of trust in the proceedings mentioned, of the 14th day of December 1871, from said Barger to Evan H. Brown, conveying the said land and other property to secure a debt therein mentioned, due by said Barger to C. D. and H. W. Straley, to satisfy which, as well as the said judgment, the said sales was decreed to be made, expressly authorized a sale under the said deed to be made for cash. It was not error, therefore, to decree a sale of the said land on a credit of six, twelve and eighteen months; as was done in the said decree of the 29th day of May 1873.
The court is further of opinion, that there is no error in the said decree, " because it decrees a sale of the land in the bill mentioned, which was three hundred and eighty acres, lying partly in Virginia and partly in West Virginia, thus going beyond the power and jurisdiction of the court."
The reasons and authorities against this third assignment of error are the same as those already stated and cited in regard to the first assignment of error.
The court is further of opinion, that there is no error in the said decree, " because it did not specify in exact terms the land to be sold, but used such vague and indefinite terms with regard to it, that it was within the power or caprice of the commissioners to sell all the lands mentioned in the Brown trust deed."
The decree was for the sale of the land in the bill and proceedings mentioned, or so much thereof as might suffice to satisfy the purposes of the decree. The land is described with sufficient certainty in the bills, and the decree could be made certain by reference to the bills. " That is certain which may be made certain," applies to the case.
The court is further of opinion that there is no error in the said decree, " because it did not dismiss the Marrs and Buckland bills and the Buckland petition, when the charges of fraud so freely made therein were ascertained and decreed to be false."
The judgment creditors of Barger had a right to subject to the liens of their judgments respectively such real estate, or such interest in such real estate, as was liable thereto. If he had conveyed any of his real estate by a deed fraudulent as to his creditors, they had a right to impeach such deed for fraud, and, if proved to be fraudulent, to have it set aside and the land entirely subjected to the payment of the debts due by him to them. Or, if the deed supposed and charged by the judgment creditors to be fraudulent as to them should turn out on investigation and enquiry to be fair and bona fide and intended to secure an honest debtor, and anything should remain after satisfying such debt, they would have a right to subject such residue to the payment of the debts due to them, and to do so in the same suit brought by them to impeach and set aside the deed, without the necessity of dismissing that suit and bringing another. They may bring one suit in equity with a double aspect, and claim, in the alternative, to subject the whole estate conveyed by the supposed fraudulent deed, if it turn out to be fraudulent, or the surplus which may remain after satisfying any incumbrance on the estate which may turn out to be valid against creditors. This is common practice, both convenient and economical, well sustained by authority.
The court is further of opinion that there is no error in the said decree, " because it decreed large debts against Jacob Barger in favor of C. D. and H. W. Straley, his co-defendants, when, first, there was nothing in the pleadings to justify such a decree between co-defendants; second, they had not been required to account for the thousands of dollars worth of property conveyed to their trustees for their benefit; and, third, they had been freely charged in two of the bills and the Buckland petition with guilty knowledge and participation in the frauds alleged against Jacob Barger."
First. There was enough in the pleadings to justify such a decree between co-defendants.
The claims in the bills are of judgment liens upon the land conveyed by the judgment debtor to secure a debt alleged by him to be due to his co-defendant, but alleged by the judgment creditors to be a fraudulent contrivance as to them, or not to be due, or not to be due in so large an amount as to absorb the whole value of the land. In such a case it is manifest that there would be amply enough in the pleadings to warrant any decree between co-defendants which justice might require. Such a decree would, in effect, be a part of the relief to which the judgment creditors would be entitled against their debtor. They would have a right to have the prior lien in favor of the co-defendant discharged, in order that the residue may be applied to the payment of their judgments.
Second. It is not alleged that they (the Straleys) have ever received any of the property conveyed to their trustees, or either of them for their benefit. No such allegation has been made, either by Barger or any of the other parties. No motion has been made by any party for any enquiry on the subject. If such an enquiry had been asked for, it would no doubt, as it should, have been, ordered. Probably it was not asked for, because it was known that none of the property had come to the hands of the trust creditors or their trustees, and because it was desired to avoid unnecessary expense. It may be asked for hereafter if desired. The deeds of trust were not executed by the trustees nor the trust creditors.
Third. As the proofs did not sustain the charges made in two of the bills, and the Buckland petition against the trust creditors of guilty knowledge and participation in the frauds alleged against Jacob Barger, they were entitled to decrees against him for the debts due them by lien and secured by the deeds of trust, in order that the surplus might be ascertained and paid to the judgment creditors.
The court is of opinion that there is no error in the said decree for the grounds assigned on the seventh, eighth, ninth and tenth assignments of error as follows, to wit:
" 7th. Because it permitted the parties to an angry controversy based upon charges of fraud, plaintiffs and defendants, to combine together against the other defendant for the purpose of dividing his property among them. If the charges of fraud were true, then the Straleys were particeps criminis, and entitled to no favor from the court. If they were false, then the plaintiffs who made them deserved no countenance in a forum of conscience."
This has been already answered.
" 8th. Because it decreed in favor of J. W. Buckland for Tabor, without requiring process to be properly executed on Jacob Barger in that cause."
Whether properly executed on him in that cause or not, it was properly executed on him in the other causes which came on to be heard together with that cause. He appeared and made defence to all the causes, without objecting that process had not been properly executed on him in that cause. He therefore waived the objection on that ground, if he had any.
" 9th. Because the court had no right to sell to pay inferior debts, lands conveyed in trust, without either setting aside the deeds and divesting the trustees of the title, or else compelling a full settlement of the trusts, and requiring all the property conveyed in trust to be brought before it or accounted for."
This has already been sufficiently answered.
" 10th. The causes having been consolidated, and two of them having been brought in the same court with knowledge of the pendency of the first therein, it was error to decree separate costs against the defendant, Barger, in each case, especially when the charges of fraud were not sustained."
The plaintiffs in the several suits had a right to bring them severally and to recover several costs; and it is doubtful whether they could have been consolidated without their consent. Claiborne v. Gross & c., 7 Leigh 331. The case is different from that of Stephenson v. Taverners, 9 Gratt. 398, which was a creditors' suit for the administration of assets, in which all the creditors ought to come in and prove their claims under a decree for an account in a suit brought by one or more of the creditors, either for himself or themselves alone, or in behalf also of all other creditors who might choose to come in and prove their claims before the commissioner. Even in such a case the creditors may commence their suits severally, but must unite in taking one account under the first decree which is made for that purpose in any of the suits. Id., and the authorities cited. But even in such cases as are now under consideration, they should at least be heard together, if not consolidated, and that is what was done in these cases. It does not appear that more costs were decreed in them in favor of the plaintiffs than were proper.
But the court is further of opinion, that in the decree made in these causes on the 5th day of September 1873, the circuit court erred in overruling the exceptions of the defendant Barger to the report of the commissioners appointed to sell the land in the bills mentioned, and in confirming the said report, and in appropriating any part of the proceeds of said sale.
There is too much uncertainty as to what land was sold, or intended to be sold, by the commissioners, to warrant the confirmation of the sale and their report. They report that " they sold the tract of land in the bill mentioned, known as the home tract, at public outcry, to C. D. and H. W. Straley, on the 29th day of July 1873, that being court day, for the sum of $1,700, that being the highest bid offered, & c." Now, " the tract of land in the bill mentioned, known as the home tract," is further described in the different bills as lying partly in Tazewell county, Virginia, and partly in Mercer county, West Virginia, but how much in each is differently stated in the different bills. Did the commissioners sell and intend to sell the whole tract, or only so much as is situated in Tazewell county? From their report, it is doubtful. They therein say, that " they sold the tract in the bill mentioned known as the home tract; " which seems to embrace the whole tract lying in both counties, described in the deed as containing three hundred and eighty acres. But in an addendum to their report they further say, " that they find from the commissioner's book, that the aforesaid lands so sold as aforesaid, was assessed at the last assessment made for the purposes of taxation, at $1,189.50. See abstract from commissioner's books herewith filed, marked S. H. The land sold for more than its assessed value." From the abstract referred to, the quantity of the land assessed is described as one hundred and eighty-three acres; which of course was only that part of the tract situated in Tazewell county, and that would seem therefore to be the only land intended to be sold. If the whole tract of three hundred and eighty acres was intended to be sold, the sale was no doubt at a sacrifice. If only the one hundred and eighty-three acres lying in Tazewell county, the sale may have been at a fair price. In this state of uncertainty the court erred in confirming the report of the sale.
The court is further of opinion, that the final decree made in these causes on the 17th day of May 1875 is erroneous, for reasons already stated and for others. Whether the decree rendered in the said causes on the 5th day of September 1873 was a decree by default or not, the circuit court erred in dismissing the defendant Barger's motion for relief against that decree, which was erroneous for reasons before stated, if no other; and his motion might be regarded as a petition for rehearing, and the relief sought obtained in that way, if it could not be obtained under the Code, chapter 177, section 5, page 1135. The said court also erred in not directing the assignee in bankruptcy of the defendant Barger to be made a defendant in these suits; and in not proceeding to adjudicate upon the question of the right of the said Barger to homestead under the constitution and law of the state of Virginia and the acts of bankruptcy of the United States. That claim had been asserted by him before the court of bankruptcy of the United States; but that court had referred it to the said circuit court in these cases. And the said circuit court erred in not taking cognizance of and adjudicating in regard to the same. But this court does not now express any opinion upon the question in regard to said claim, as it would be premature to do so.
The court is therefore of opinion that so much of the decrees appealed from as is in conflict with the principles above declared and opinion above expressed ought to be reversed and annulled, and the residue affirmed, and the cause remanded to the said circuit court, in order that the said assignee in bankruptcy may be made a defendant to the said suits, and that further proceedings may be had therein to a final decree in conformity with the said principles and opinion.
DECREE REVERSED.