Conaway v. Third Nat. Bank of Cincinnati , 92 C.C.A. 488 ( 1908 )

PRITCHARD, Circuit Judge

(after stating the facts as above). It is insisted by counsel for appellants that the trustees in making this sale were acting as attorneys in fact for and on behalf of the Dola Coal & Coke Company, and that therefore they were not trustees in the usual acceptation of the term, but were simply acting in pursuance of the authority thus granted by the Dola Coal & Coke Company to sell and dispose of the property in question, and that therefore any statute of “West Virginia relating to sales of property under deeds of trust could not affect them in the slightest degree.

The learned judge who tried the case below, in disposing of this lir-t question, said:

•Ttivr. It is well settled that it is immaterial as to the form and character of iho irsirument by which a trust may be created. It may also be created by miro than one instrument in different forms, each bearing different ioeluiieai names. The question in equity is always one of substance and not of form.' I therefore construe the original agreement between Jackson and these irusu’< s, the deed for his realty, the memorandum of assignment of his personal property, and the power of attorney of the Dola Company to them, as means resorted to to accomplish a single purpose, the creation of a trust in these trustees for the benefit of his creditors. The power of attorney, it is true, goes '-'¡cp beyond the other writing- and gives the right of disposition of the coal property of the Dola Company, in which Jackson was not alone interested. However, it cannot be denied that his interest was almost the whole thereof, that this power was executed solely because of his transfers before made, and with the sole purpose of better obtaining and securing his interests therein and vesting the' same in the trustees.”

The authority granted the trustees by the Dola Coal & Coke Company reads as follows:

“Now, therefore, be it resolved, that the board of directors of this corporation be and they are hereby authorized and instructed to cause Joseph E. Sands, Ira E. Iiohinson, and John W. Davis to be duly constituted the attorneys in fact of this corporation to make sale of all and singular its real estate as aforesaid, in such manner, upon such terms, and at such times as they may deem proper. * * * ”

The court below held that the trustees were required by the provisions of section 3053 (W. Va. Code 1906) to sell the property in question at public auction. This section reads as follows:

“(6) The trustee in any such deed shall, whenever required by any creditor secured or any surety' indemnified by the deed, or the personal representative of any such creditor or surety, after the debt due to such creditor or for which such surety may be liable, shall have become payable and default shall have been made in the payment thereof, by the grantor, sell the property conveyed by the deed, or so much thereof as may be necessary, at public auction. * * * ”

Owing to the various instruments executed by the grantor to his trustees, together with the power of attorney given to the trustees by the Dola Coal & Coke Company, the question arises as to whether the sale of the property of the Dola Coal & Coke Company was made in pursuance of the trust created by the execution of the deeds by the grantor, as well as the power of attorney executed by the Dola Coal & Coke Company, or whether the authority to make such sale was derived solely from the authority conferred upon the trustees in the power of attorney executed by the Dola Coal & Coke Company. The court below ruled that the various conve3'ances made by the trustees, as well as the power of attorney executed by the Dola Coal & Coke Company, constituted one transaction, and should therefore be treated as constituting a trust for the benefit of the creditors of the grantor. If the sale was made solely in pursuance of the power of attorney hereinbefore referred to, then unquestionably the trustees in making such sale were not required to advertise the property at public auction under the provisions of section 3053, or any other section of the Code of West Virginia pertaining to sales of property under deeds of trust. But for the purpose of deciding the questions involved herein, we will treat the ruling of the lower court in this respect as being correct, and that this property was sold in pursuance of an express trust created for the benefit of the creditors of the grantor.

Section 3052, which immediately precedes section 3053, appears to be confined strictly to deeds of trust. We therefore conclude that the provision of section 3053, relative to the manner of making sale of property under deeds of trust, must necessarily be construed as referring to deeds of trust executed in pursuance of section 3052. This section is limited in its scope to deeds of trust executed to secure creditors and to indemnify sureties; whereas the deed under which this property was sold was executed for an entirely different purpose, to wit, for the benefit of creditors of the grantor. The language of this section is so plain and explicit that there can be no doubt as to its true intent and meaning. It is obvious, even from a casual reading of the statute, that it was intended to apply exclusively to deeds of trust, and that it does not apply to a deed of assignment for payment of debts as in this instance. Another distinguishing feature is that there is nothing in section 3053 which requires the trustee to enter into bond for the faithful discharge of his duties before making sale of the property conveyed or distributing the proceeds, except when required by the grantor or any cestui que trust in said deed. However, when we come to examine section 3054 of the Code of West Virginia of 1906, we find that its provisions require that the trustee under the conveyance therein contemplated shall, before entering upon the discharge of his duties as such, execute a sufficient bond for the faithful discharge of the duties thus imposed upon him. This section reads as follows:

“That a person appointed by an insolvent debtor as trustee in any assignment, conveyance, transfer, or other act of such insolvent debtor, which is intended to operate as an assignment of all such debtor’s property for the benefit of all of his creditors, or which does so operate under the laws of this state, shall not have the power of such trustee until he qualifies as such by taking an oath and giving a bond in a penalty double the amount of the ascertained estate, with sufficient surely, before tlie clerk of the county court of the county in which such assignment, conveyance, transfer or other instrument is or should be recorded, or such act is done, in the manner, and with the effect, as a personal representative of the estate of a decedent is qualified. And in case such person so appointed trustee by such insolvent debtor fails or refuses to so qualify the said county court shall appoint such trustee upon the application of any person interested. The oath of such trustee shall be that he will faithfully perform the duties of the office of trustee to the best of his skill and judgment, and will account for and pay over all money that comes to his hands as such trustee. Said bond shall be approved by said court, and conditioned that said trustee shall faithfully perforin the duties of trustee to the best of his skill and judgment, and account for and pay over all money that may come to his hands as such trustee. Upon the qualification of such trustee, there shall be appraisers appointed to appraise the estato of the insolvent debtor in the same manner and by the same authority that appraisers are appointed for the estate of a decedent, and such appraisers shall be governed by the same laws, and perform the same duties that appraisers of the estate of a decedent are governed by and are required to perforin. And all such trustees as aforesaid shall appear before some one of the commissioners of accounts of the county court before which lie qualified as such trustee, and lay before such commissioner a report of his receipts and disbursements, and his vouchers for the same, in all respects and with like effect as is provided for fiduciaries generally by chapter 87 of the Code of West Virginia.”

It. is true that the trustees in this instance did not enter into bond, as required by the provisions of this section, but their failure to do so was due to the fact that such section was not in existence at the date of their appointment, it being- enacted subsequent thereto.

It is also insisted that the provisions of section 3056 are such as to render the action of the trustees in disposing of the property at. private sale a nullity and void. We do not think so, for the reason that the -opening sentence thereof restricts its operation to property sold under deed of trust, and therefore the reason we have already assigned applies with equal force to this proposition, and we must conclude that deeds of trust as therein designated arc such deeds of trust as may be executed for the purpose of securing creditors or indemnifying sureties. We have diligently examined the Code of West Virginia with a view of ascertaining tlie law of that state in regard to the time and manner of making sales under deeds similar to the one executed in this instance, and section 3051 is the only one we have found that undertakes to prescribe the duties of trustees' under a deed made exclusively for the benefit of creditors, and there is nothing in that section which undertakes to prescribe the manner of making sales under such instruments. The enactment of this section is in recognition of the distinction between deeds of trust to secure creditors, or to indemnify sureties, and an express conveyance for the benefit of creditors. A provision that property conveyed by deed of trust to secure creditors, or indemnify sureties, should be sold at public auction, after giving sufficient notice, is wise, and one that is intended to protect the interests of the grantor and his creditor alike. While a creditor under the terms of the deed of trust may demand a sale under the deed, yet he cannot demand an immediate sale, and thus deprive the grantor of an opportunity to use all the means within his power to save his property; neither can the trustee dispose of such property at private sale, without giving the grantor an opportunity of securing bidders who will pay an adequate price for the same. By this provision, in many instances, the grantor, even though his property has to be sold to satisfy the debts secured, is enabled to secure bidders who are willing to pay a fair price for such property, and thereby release not only a .sufficient amount to pay off the indebtedness of the grantor, but an amount sufficient to leave a surplus to which, under the provision of the deed of trust, the grantor would be entitled. Also, under a deed of trust executed for such purpose, the grantor, in the event that he should.be able to pay the debt thus secured, would be entitled to have the securities sign a release of the property thus conveyed, or cancel the lien as recorded. In this case, however, it is not the purpose of the grantor to secure payment of a debt, but the sole object was to grant and convey his property to trustees absolutely, for the benefit of his creditors, and the estate thus transferred is dedicated for that purpose, and that purpose only. In other words, this deed of assignment is in effect tantamount to a sale and conveyance of the property by the grantor to his creditors, in that it is provided that the property thus transferred is to be sold, and the entire proceeds arising- therefrom applied to the payment of the various creditors in accordance with the terms contained therein. There are none of the distinguishing features contained in a deed of trust executed for the benefit of creditors, or to indemnify sureties, to be found in the conveyance executed by the grantor in this instance. This conveyance to trustees was for the creditors, and the creditors only; but in a deed of trust the rights of the grantor are reserved and protected as hereinbefore stated.

The authority of the trustees to make sale of the property, as contained in the conveyance for the benefit of the grantor’s creditors, reads as follows:

“ * * * the trustees named take possession of all of the said real and personal property, and shall proceed with all reasonable dispatch to make sale of the same at such time and upon such terms and in such manner as they may deem most expedient full and absolute discretion being hereby vested in said trustees in relation to the management, control and disposition of said property; * * * it being the intent and purpose of this contract and of the instruments to be executed in furtherance thereof, to vest the said trustees with the full, absolute and indefeasible title to the said property, both real and personal, without right of redemption on the part of the said Jackson. and to be held by tiie said trustees for and on behalf of all the creditors of the said Jackson whether parties to this agreement or otherwise, for the sole use, benefit and behoof of the said creditors.”

This provision clearly leaves the manner of sale, and time when it shall be made, etc., exclusively within the discretion of the trustees, there being no restriction or direction whatever as to when and how such sale shall be made. There is not a scintilla of evidence to show that the trustees acted improperly at any stage of the proceeding. In referring to the conduct of the trustees, the learned judge below in his opinion filed herein, made the following statement:

“Nor do I regard the charges of misconduct on the part of those trustees as sustained. It seems to me that, under all the circumstances, they are subject to neither condemnation nor just criticism.”

Everything seems to have been done in the open, and the efforts of the trustees to secure bidders were such that their action in that respect became a matter of general notoriety in the vicinity where the property is situated, thus giving those who might desire to purchase the property full and ample opportunity to negotiate the same with the trustees, just as though there had been public advertisement of the time and place of sale, and they had been afforded an opportunity to bid at public auction. Likewise, the creditors, the only persons interested under the deed, were fully advised of the action of the trustees at all times, as will appear from the following statements taken from the answer filed herein by the trustees:

“(5) Further answering, respondents say, in relation to the sale made by them of the coal field of the Dola Coal & Coke Company to their codefendant Charles E. Conaway, that, as hereinbefore stated, they were continuously engaged without success from the 23d day of January, 3905, until September 27, J90G. in an endeavor to effect such a sale, or any sale of said property. That at a meeting of the creditors of the said Thomas Moore Jackson held in the cil.v of Clarksburg on the 37th day of January, 1906, a resolution was offered by Bawrenee Maxwell, ,Tr.. then counsel for the plaintiffs and representing the plaintiffs at said meeting, instructing these respondents to proceed forthwith to advertise the said coal field and offer the same ¡it public sale, and that the said resolution having been maturely discussed was by a vole of (he creditors then present disapproved, and these respondents were instructed to further proceed with their efforts to dispose of said coal field at private sale. That at said meeting certain of the holders of bonds of the Dola Coal & Coke Company then stated that unless a sale of the said coal field should lie shortly effected they would proceed to foreclose their mortgage and force the property to sale.

“That thereafter, in the month of May, 3906, no sale having been as yet effected, uoiwitbstanding numerous negotiations entered Into by these respondents. certain of the holders of the bonds of the Dola Coal & Coke Company demanded of these respondents that a further meeting of the said creditors should be called for the purpose of further considering the sale of the said properly and of instructing these respondents to sell the same at forced or public sale if a private sale should not be sooner made. That such meetmg was duly held on the 7th day of June, 1906, and ¡it such meeting the plaintiffs were duly represented by Mr. Dudley V. Sutphin, vice president of ihe plaintiff Third National Bank of Cincinnati. That ¡it such meeting it was again stall'd that no further delay in the sale of said property would on the part oí the holders of the said mortgage bonds be permitted. Whereupon a general committee of creditors, composed of secured and unsecured creditors, pas appointed to consider a plan by which the said coal fieid might be taken over by the creditors, or the equity of the common creditors therein might be preserved or protected; which said committee submitted to all the creditors of the said Thomas Moore Jackson a written statement bearing date the 27th day of June, 1906, a copy of which is herewith filed, marked ‘Exhibit No. 10,’ and in response thereto the plaintiffs, in the person of Mr. Sutphin, their representative, by letter bearing date the 27th day of June, 1906, a copy of which is herewith filed as a part of this answer, marked ‘Exhibit No. 11,’ signified their unwillingness to participate in the plans therein suggested; that thereafter, to wit, on the 18th day of July, 1906, a meeting of the creditors of the said Thomas Moore Jackson was again held at Clarksburg, at which the plaintiffs were again represented in the person of the said Dudley Y. Sutphin, and an adjournment was had without any action looking either to the organization of any syndicate on the part of the said creditors or to any other device whereby the equity of the common creditors in said coal field might he In any manner protected or preserved. And it was then and there again stated on the part of the holders of the bonds of the Dola Coal & Coke Company that no further delay in the sale of the said coal field would or could be permitted.

“Respondents further aver that after the adjournment of the said last-mentioned meeting various holders of the said Dola Coal & Coke Company bonds signified to these respondents their intention of immediately foreclosing their said mortgage unless a sale should be forthwith effected, no interest having ever been paid upon any of the bonds held by them, and the said Dola Coal & Coke Company being therefore in entire default. That various holders of ‘farmers’ liens’ of the class hereinbefore mentioned signified their intention of subjecting to sale portions of the field upon which their liens existed, and the holders of the notes constituting what has been hereinbefore styled, ‘partners’ liens’ notified these respondents, as they had repeatedly done prior thereto, of their intention to enforce their said liens immediately upon their maturity, to wit, on the 1st day of January, 1907. Respondents therefore addressed to the creditors of the said Idiomas Moore Jackson a letter under date of the 17th day of September, 1900, a copy of which is filed, with the plaintiff’s bill as ‘Exhibit F,’ notifying the creditors of the receipt of a positive offer and of respondents’ intention to close the same, in the absence of any bettor proposition, on the 27th day of September, 1906. Respondents further aver that upon the issuance of said letter the creditors holding bonds of the Dola Coal & Coke Company, as well as those holding ‘partners’ lien’ notes, met in the city of Clarksburg on the 28th day of September, 1906, and a meeting of the common or unsecured creditors was called by the First National Bank of Mannington to be held on the same date. That on that date the said secured creditors in meeting assembled notified these respondents, as well as the unsecured creditors then present, that unless the said unsecured creditors would in some manner assume the payment of the interest upon the said secured debts, and would guaranty the payment of the principal thereof, that they would, and did, instruct these respondents to proceed to make sale of the said coal field at the price then offered, and that they would and did refuse, in the event these respondents should proceed to offer the same at public sale, to make any assurances, guarantee, or promises that they would at such sale enter any bid whatever, or that they would protect the bidding to the amount of the debt due to them; and, the unsecured creditors then present being unable to effect any such arrangement, your respondents treated the instructions so given to them by the specific lienors upon the property as imperative and mandatory.

“Respondents further show that the said circular letter bearing date the 17th day of September. 1906, was duly dispatched to the plaintiffs in this cause, and on the 21st day of September, 1906, respondents received from the plaintiffs Third National Bank of Cincinnati a letter, a copy of which is herewith filed as a part of this answer, marked ‘Exhibit No. 12,’ wherein among othor things, it was said:

“ ‘We are not able to suggest any other program than that indicated by yourselves. We have made faithful effort with large coal people all over the country to get them to consider the property without the least result.’

“And thereafter, and prior to the said 28th day of September, 1906, respond(nils received a further loiter from the said Third National Bank of Cincinnati, a copy of which is herewith filed as a part of this answer, marked ‘Exhibit No. 33,’ in which it was further declared:

“ ‘We have declined to join in a creditors’ meeting Wednesday, and feel that the trustees have done all they could and have served all interests faithfully and well.’ ”

We do not think that the instruments under which this sale was made can be treated as constituting a deed of trust, as contended by counsel for appellee. Preliminary to the execution of the instrument in the first instance, it was agreed by more than 85 per cent, of the grantor’s creditors that, as a means of finally settling and discharging his indebtedness, his real estate, with certain exceptions, should be conveyed and transferred to the trustees named therein, exclusively for the use of his creditors; the prime object being to secure a sale of the property thus conveyed, and distributing the proceeds thereof among his creditors in accordance with the stipulations therein contained. The right of redemption in this instance was expressly waived and denied, and the power of sale is unconditional. It cannot be contended 1hat the grantor could not have sold and transferred this property outright to his creditors, in satisfaction of his indebtedness, nor that they in turn could not have taken from him a perfect and valid conveyance of the same; and this is precisely what was done in so far as practical results are concerned.

The court also based its action in entertaining the hill in this instance upon another ground, and, in discussing this phase of the question, said :

“Second. 1 am led to believe that this bill must be sustained and this property lie required to bo sold under ihe supervision of this court upon demand of these creditors, because it is the well-established policy of the law in this stale to sell real estate only after the Hens and their priorities have been ascertained and settled. Section 4147 of our Code (W. Va. 3906) expressly requires such lions to be ascertained, notice to lienholders to be published, and that all rights to parties to except and contest shall be preserved. It is needless to cite the multitude of eases construing this statute.

“X have not the slightest doubt of the sincerity of these trustees in their statement that they have accurately, as they believe, ascertained the creditors, their debts and priorities, secured by this deed of trust. We must admit, however, that this is private judgment, and not judicial determination. It was expressly provided in the trust agreement that creditors should have the right to sue to establish their debts and liens, and, if it had not been so provided, I think this right clear and undisputa hie if exercised within proper time.

‘•And dually, while no man can tell whether this large and valuable property, if sold at public auction, will or will not realize a larger sum than the one offered at this prívale sale, it is nevertheless true that many think it will, that a considerable larger sum has been offered for it, whether by one who could fuliill his offer or not wo cannot tell, and that these trustees themselves expressly slate in their circular letter to creditors that the sale price of $145 per acre is much below the true value of the property. Under such conditions it seems to me I must set aside this private sale, entertain this bill, ascertain the Hens and charges against this real estate, and direct the sale thereof to be made by these trustees under the direction and orders of this court.”

We have carefully considered this point, and we do not think the facts and circumstances surrounding this transaction are such as to justify the intervention of a court of equity. The plaintiffs are not creditors of the Dola Coal & Coke Company, and there is nothing to indicate that they have ever acquired any lien on its property. The plaintiff the Third National Bank of Cincinnati, on the 14th day of March, 1905, recovered judgment in the Circuit Court of the United States for the Northern District of West Virginia against T. Moore Jackson, Lynn S. Horner, and Fleming Howell for the sum,of $21,-568.28. Said judgment was docketed in the office of the clerk of the county court of Harrison county on the 17th day of January, 1906. The plaintiff the Union Savings Bank & Trust Company, on the same day and in the same court, recovered judgment against all of the parties for $9,766.47, and docketed the judgment in the office of the clerk of said court on the 17th of January, 1906. At the time, to wit, 19th of December, 1904, that the grantor entered into an agreement with his creditors to the effect that he would convey to Joseph E. Sands, Ira E. Rob'inson, and John W. Davis, trustees, all of his real estate and personal property, with certain exceptions, he was indebted to several creditors in various amounts, for the payment of which he desired to make provision. The plaintiffs do not allege that they were then creditors of'Jackson, and it nowhere appears in the record that Jackson was at that time indebted to them, and the judgments upon which they rely as evidence of indebtedness were not recovered until three months after the conveyance to the trustees as hereinbefore stated. In the first instance, the judgments upon which they rely are against the grantor and others, and not against the Dola Coal & Coke Company, and we know of no principle upon which they would be entitled to proceed against the Dola Coal & Coke Company for the purpose of recovering debts due by the grantor; and it appears that, prior to the execution of the power of attorney by virtue of which this property was sold, all of the right, title, and interest of the grantor in the property of the Dola Coal & Coke Company had been conveyed to that company by proper deed of conveyance.

Among other things, the trustees in their answer say that under their administration ample opportunity was afforded' all parties in interest for an inspection of the books and papers and examination of each and every transaction in respect thereto, and that an accounting had been had of all transactions in connection therewith, and that they are still “ready and willing to render to plaintiffs, or any other party in interest, any further accounting which may be by the plaintiffs lawfully demanded.” That portion of the answer reads as follows:

“Further answering, respondents say that, as shown by the exhibits heretofore filed, they have from time to time accounted in full detail to all persons interested in the execution of the trust assumed by these respondents; that they have at all times afforded to the plaintiffs and all other creditors of the said Thomas Moore Jackson full access to any and all books of account kept by these respondents, and have answered in full detail any and all inquiries submitted by the plaintiffs or by any other of the said creditors, and that they have at no time refused to account or neglected to render to any person entitled thereto a full account of all and singular the transactions, collections, or disbursements entered into or made by them; that they have, as they believe, ascertained and properly listed all the assets of the said Thomas Moore Jackson, subject to the said trust, and that they have likewise ascertained all the creditors entitled to said assets or any part thereof; that as to certain of said debts there are matters still undetermined which render it impossible to state'the true amount thereof, but which respondents believe will in due time be adjusted without resort to litigation for that purpose, and respondents here file as a part of this answer, marked ‘Exhibit No. 17,’ a detailed statement of the amount of the bonds of the Dola Coal & Coke Company now outstanding, and the holders thereof, and of the liens against the property of the said Dola Coal & Coke Company, and the holders thereof, and, as hereinbefore averred, respondents are ready and willing to render to plaintiffs or to any other party in interest any further accounting which may be by the plaintiffs lawfully demanded.”

The instrument under which these trustees acted being plain and explicit as lo the distribution of the proceeds arising from the sale ox the property thereunder, and it appearing that the conduct of the trustees was eminently proper, we do not think that a court of equity at this stage of the proceeding should interfere with the trustees in the discharge of their duties as such.

We will tiow consider the motion to dismiss the appeal. In support of this motion, counsel contend that “the appeal must be dismissed because the heirs of Charles E. Conaway, to whom descended his interest in said coal field, have not joined in, nor are they in any manner parties to, this appeal.” This contention would be good if the property involved descended to the heirs of the said Charles E. Conaway, but such is not the case. At the time of the death of said Conaway, there was no estate in the coal fields to descend to his heirs. Therefore, whatever estate he may have had therein, passed to his personal representative under the law of West Virginia. Code W. Va. 1906, § 1001, provides that:

“Tlio personal representative of a sole or surviving trustee shall execute ¡ho trust, or so muc*ii thereof as remained unexecuted at the death of such trustee (whether the trust subject be real or personal estate), unless the instrument creating the trust otherwise direct, or some other trustee be appointed for the purpose by a court of chancery having jurisdiction of the ease.”

Conaway, in making the purchase of this property, acted as agent and trustee, and the contract with the trustees by which he acquired this property vested in him an estate in the coal field held in trust for Mr. Thompson. The contract describes him as a trustee, and, among other things, provides that the property shall be granted and conveyed with covenants of general warranty unto said party of the second part, or his assigns, or such person or corporation as he may designate in writing, free from incumbrances, etc. Also there was an agreement entered into between Mr. Conaway and Mr. Thompson to the effect that the property was being purchased for Mr. Thompson, and the affidavit of Mr. Thompson clearly shows that Mr. Conaway was only acting as trustee. Under these circumstances, it was the duty of Conaway, as Thompson’s trustee, to have the complete title to the property thus purchased, in so far as it was in his power to do so, by a conveyance, vested in Thompson; and even, under the circumstances, if lie had taken a deed in fee simple for the premises in question, he would have taken the same as trustee for the use and benefit of Thompson, and would have been bound, upon proper demand, to have conveyed the same to Thompson in accordance with the contract between them as to such transaction. “An agent, authorized to purchase lands for his principals, purchases in his own name, and directs the conveyance to himself. He is bound to convey the land to his principals, upon their complying with his contract of purchase, in the same plight and condition in which the same was conveyed to him.” Wellford v. Chancellor, 5 Grat. (Va.) 39; Franks v. Morris, 9 W. Va. 669.

It is also insisted that:

“Assuming that the personal representative of Charles E. Conaway had any right to appeal, they have not filed in the office of the clerk of the Circuit Court a certified copy of their appointment as required by the act of Congress (Act March 3, 1875, c. 137, § 9, 18 glut. 473 [U. S. Comp. St. 1901, p. 513]), hut merely an unauthoritative certificate of the clerk of the county court of Marion county, W. Va.”

It appears from an inspection of the record that the death of Charles F. Conaway was suggested, and that it was proved to the satisfaction of the court that Zella Conaway and W. H. Conawa3r were on the 29th day of January, 1908, duly appointed administratrix and administrator of the personal estate of the decedent by the county court of Marion county, W. Va., and were duly qualified, and gave bond as such, and on their motion made in open court the suit was revived in their names as personal representatives of said decedent. It also appears that upon the petition of said personal representatives presented to the court and filed therein, accompanied by assignments of error in writing, and a bond in the penalty of $300 with surety, the court allowed the appeal, and'approved as sufficient the bond, and ordered the same to be filed and recorded.

In view of these facts, it cannot reasonably be insisted that this appeal was wholly governed by the provisions of the act of 3d March, 1875, as hereinbefore contended. That statute is evidently intended to provide for an appeal in cases where there is no formal revivor of the suit against the personal representative of the deceased party. The suit being revived, the court undoubtedly had jurisdiction to allow the appeal in open court, which was done. "Therefore we do not think that this point upon which counsel rely for dismissal is well taken.

It also appears from the record that the trustees hold $20,000-of money paid to them by said Conaway, as trustee for Thompson, and it also appears that there is $80,000 now held on deposit to meet the second payment of purchase money for the coal land, which $80,000 was furnished by said Thompson to the trustee, Conaway, and by him deposited in said bank. In any event, the interest of said Conaway was such at the time of his death as to entitle his personal representative to be made a party to this suit for the purpose of asserting his right to the $20,000, to which decedent was entitled for services rendered in the purchase of the land held b}f the trustees for his benefit, the payment of which is contingent upon the ratification of the sale of such property.

The motion of counsel for appellees to dismiss this appeal is without merit, and therefore refused.

For the reasons hereinbefore stated, the decree of the Circuit Court is reversed, and the case is remanded, with instructions to dissolve the injunction granted herein and to dismiss the bill.

Reversed.