Opinion
04-23-1874
MORAN v. BRENT & als.
Smoot, for the appellant. Wattles and F. L. Smith, Jr., for the appellees.
Absent, Christian, J.
It is premature and error to decree a sale of real estate where there is a lien by deed on which the amount due is not certain, and also liens by judgment, until the court has ascertained and adjusted the liens thereon and their priorities.
This was a bill filed in May 1871 in the Corporation court of Alexandria, by Anthony Moran against George W. Brent, trustee, and others, to enjoin the sale of a house and lot in the city of Alexandria, under a second deed of trust. The plaintiff, in 1863, purchased the house and lot of Hopkins and Hull, trustees under the will of Joseph Janney deceased, and executed to Reuben Johnson a deed of trust upon it to secure the payment to them of six promissory notes amounting to $4,441.94, and payable from six months to three years from the date. He afterwards, in January 1870, executed another deed, by which he conveyed to George W. Brent the same house and lot, in trust, to secure a debt of $2,000 due to Mrs. Margaret Baldwin. In April 1871, Brent the trustee, advertised the sale of the property under the deed to him, the sale to be made on the 13th of May following.
The plaintiff in his bill, states, that the deed to secure Hopkins and Hull has not been satisfied or released, and Charles B. Shaw claims whatever is due upon this deed. He objects to the sale whilst this deed remains unsatisfied; and that property which he alleges was worth $8,000 should be sold for cash, as the advertisement proposes. And making Brent, Johnson, Shaw and Mrs. Baldwin parties defendants, he prays for an injunction to the sale, and that an enquiry may be directed to ascertain the liens upon the property.
Charles R. Shaw answered, saying he is the assignee of the residue of the debt secured by the first deed, and that there is due to him as said assignee $500, with interest from the 10th of January 1868. He files with his answer one of the notes secured by the deed, for $1,200.98, on which there had been paid, before the assignment to Shaw, $781. And Shaw did not object to the sale.
Mrs. Baldwin answered, admitting that the deed of trust to Johnson had priority over hers, and that it was then for the benefit of Shaw.
Whilst the cause was pending in the court below, J. D. Hammond and John D. Hammond & Co., filed petitions in the cause, stating, that at the January term, 1871 of the court, they had obtained judgments against Moran, which were liens on his said real estate; and praying that they might be made parties defendants in the cause; that the liens upon the property might be ascertained, and the same be sold to satisfy their judgments.
The cause came on to be heard on the 22d of July 1871, when the plaintiff asked leave to amend his bill and make Hopkins and Hull and the immediate assignor of Shaw parties; but this motion not having been made until during the argument on the final hearing of the cause, the court overruled the motion, and decreed that the real estate in the bill and proceedings mentioned be sold upon terms stated in the decree; and Brent was appointed a commissioner to make the sale. Moran thereupon applied to this court for an appeal; which was allowed.
Smoot, for the appellant.
Wattles and F. L. Smith, Jr., for the appellees.
OPINION
ANDERSON, J.
Upon the authority of repeated decisions of this court, it was premature and error to decree the sale of the real estate in the bill and proceedings mentioned, until the court had ascertained and adjusted the amount of liens thereon and their priorities. Cole's adm'or v. McRae, 6 Rand. 644; Smith & al. v. Flint & al., 6 Gratt. 40; Lipscomb v. Rogers, 20 Gratt. 658; White v. Mech. Building Fund Association, 22 Gratt. 233. A reference should have been made to a commissioner of the court with instructions to convene before him in such manner as to the said court should seem proper, Bassil B. Hopkins and Robert Hull, assignors of Charles P. Shaw, there being nothing in the record to show how much of the whole debt secured by the first deed of trust has been satisfied, and all the lien creditors of Anthony Moran, and to ascertain and report the amount of subsisting liens upon the said real estate and their several priorities, prior to a decree for the sale thereof. It is therefore considered by the court, that the decree of the Corporation court of Alexandria city in this cause be reversed and annulled, and that the appellant recover his costs incurred in the prosecution of his appeal here; and the cause is remanded to the said Corporation court for further proceedings to be had therein in conformity with this opinion.
DECREE REVERSED.