Vance v. Evans , 11 W. Va. 342 ( 1877 )

GreeN, ’ PRESIDENT,

delivered the opinion of the Court:

This was a suit in chancery, brought in the circuit court of Monongalia county by Addison S. Vance against George H. Evans, William Conway and others. Its object was to obtain for the plaintiff, who, as surety, had satisfied a judgment against him and certain of the defendants, a subrogation to the equity.of the judgment creditor’, and to have the real estate sold, upon which the judgment was a lien, after adjusting the various liens against it, and out of the proceeds to re-imburse the plaintiff for the moneys, so paid by him as surety. Among the liens to be so adjusted, was one, created by a deed of trust, dated August 28, 1862, executed by George D. Evans, which among other debts secured “a debt of about $3,000.00, which William Conway held against him,” the grantor. The bill makes William Conway one of the defendants, but makes no allegations with reference to the bona fide character of the debt due him, nor any other allegation in reference to it, except simply in giving the contents of this deed of trust it is described among other debts, as securing “a debt of about $3,000.00 alleged to be due William Conway (his, the grantor’s, brother-in-law).” To this bill but few of the numerous defendants, creditors of George D. Evans, filed answers. None of these answers, except those of George D. Evans and William Conway, allude to this debt to Conway. William Conway in his answer, filed promptly after the institution of the suit, claims that Evans was, when he executed this deed of trust, indebted to him “ in the sum of $3,000.00, or even more, on account of money advanced, laid out and expended for his use and benefit,” but gives no other account of the origin of this debt; he sets out at great length the transactions between him and George D. Evans with reference to the Plum run farm, which appear in the statement of the case which precedes this opinion, and claims to be the assignee of two bonds of Evans, executed to John Dawson, which were liens on a portion of Evans’s lands. His answer concludes: “ He therefore prays your honor to fully guard and protect him against further injury and loss, and to adjust and adjudicate the difficulties arising in this cause between himself, complainant, and other contestants, according to equity and good conscience; that if a cross bill be necessary, it be permitted to be filed.”

George D. Evans’s answer was not filed till some twenty-two months after the filing of the bill. In it he ¡$ays that he executed this deed of trust in which Conway’s claim is, among others, secured; “that this was done with a view of enabling Conway to complete the payment of the joint obligations of himself and this respondent (George D. Evans), executed for the balance of the purchase money on the Willey farm, provided respondent should fail to meet his moiety of the Willey purchase money obligation.” He then goes into a long statement of the transactions between him and Conway with reference to this farm, bought of Willey, and of the amount paid by each of them, in which his statements differ materially from those of Conway in his answer. The commissioner and court below adopted as correct most of the positions, taken by Evans in this answer in reference to this farm. He insists that Conr way was not the assignee of the Dawson bonds, and that he held them only by having paid them off for Evans out of moneys furnished him by Evans. The answer also says, that “ he (Evans) and the defendant (Conway) were engaged for a long time in the speculation of buying and selling cattle ; and that the defendant (Conway) frequently sustained heavy losses in the purchase and sale of stock, amounting in all to large sums of money; which respondent (Evans) had to pay, he having fur-uished the capital to operate with; so that the defendant (Conway) who had been, and was then, in greatly embarrassed circumstances, during this operation, was enabled, through the aid of this respondent (Evans), to relieve himself ultimately of his insolvency, which was notorious among his acquaintances and neighbors; and your respondent (Evans) in his honest efforts to pay his debts, is reduced to extremely needy circumstances, while the defendant (Conway), representing himself as being rich, is seeking to swallow up what little property respondenta (E van s), has left to secure his creditors in the payment of their just and proper claims, by claiming the benefit of the $3,000.00 secured in the trust deed, which is wholly improper and wrong;” and by other specified claims, also alleged to be wrong.

The only matters complained of in this Court, are the action and decisions of the court below upon the claim of Conway to the benefit of this lien in his favor, and the auditing of the amount due on this Willey farm, till other parties not made defendants are before the court. The court by several decrees directed, among other things, that its commissioner should ascertain the debts still due and owing from George D. Evans to the creditors severally named in this deed of trust, and that he should settle the accounts of George D. Evans and William Conway, and ascertain the amount due from one to the other. In settling these accounts the commissioner disregarded entirely the acknowledgment contained in the deed of trust, that Conway held a debt against Evans of about $3,000.00, and went back to the beginning of the transactions between these parties in 1854, and attempted to settle all matters between them, and reported Conway as indebted to Evans $2,757.46, with interest thereon from January 20, 1870; which action of the commissioner was approved by the court, and a decree rendered against Conway for that sum for the benefit of Evans’s creditors, he having by a deed of trust conveyed all his personal estate for the benefit of certain creditors, and certain of his creditors having liens on such estate, as set forth in the statement of this case preceding this opinion. The commissioner does not ascertain either the amount due on the Plum run farm, purchased of Willey at the date of the deed of trust, nor the state of the accounts between Conway and Evans at that time. But an inspection of the items of his account would seem to indicate, that there was due then on said farm by Evans & Conway about $5,100,00; and that his indebtedness to Evans, at the time the deed of trust was given, differed probably but little from what it was on January 20, 1870, -which was then, according to the commissioner’s report approved by the court, $2,757.46.

The counsel for the appellant insists that the court below erred in adjudicating upon the matters in controversy between the co-defendants, Evans & Conway, arising under the deed of trust of August 28, 1862, in which Evans secured a debt to Conway of about $3,000.00, He insists that the court below had no right to inquire into the question, as to whether this debt was bona fide and justly due from Evans to Conway, as its validity and bona fide character was not assailed in the bill. It is unquestionably true, that a decree between ■co-defendants can only be based upon the pleadings and proofs between the complainant and defendants, and that no such decree can be made between co- defendants founded upon matters not stated in the bill nor in litigation between the complainant and the defendants or some of them : See Elliott v. Pell, 1 Paige 263; Jones v. Grant, 10 Paige 348, also Tripp v. Vincent, 3 Barb. Ch. R. 613, and Buffalow v. Buffalow, 2 Ired. Eq. R. 113. On the other hand, where a case is made out between defendants by evidence arising by pleadings and proofs between the complainant and defendants, a court of equity may make a decree between defendants; each of the defendants in such a case has a right to insist, that a decree shall be rendered between them, and that another suit should not be rendered necessary by the failure of the - court to decide, what might then be properly decided. See Teppleman v. Fauntleroy, 3 Rand. 434. If in the case before us Evans had in his deed of trust, secured a bond for $3,000.00, which he owed Conway, and the bill had failed to charge, that the bond was executed in bad faith by collusion between the parties, though this had been stated in the answer of Evans, and fully established by proof, the court could not have declared by its decree, that this bond was fraudulent and ficticious, and set it aside, for in so doing it would have been rendering a decree between co-defendants, not based upon the pleadings and proofs between the plaintiffs and defendants ; but would have been rendering a decree in relation to matters not put in issue between the parties by the pleadings, and would have been' making the declaration of a fact not in issue in the pleadings, and paying respect to evidence touching such fact, which can never be properly done by a court. See Tripp v. Vincent, 3 Barb. Ch. R. 613; Buffalow v. Buffalow, 2 Ired. Eq. R. 113.

But it seems to me, that the case, presented to the Court by the record in this case, is materially different from this supposed case. In the first place, the debt or alleged debt, due from Evans to Conway, was not a bond for any definite amount, as stated in the bill and deed of trust filed with the bill as an exhibit. The bill, on the contrary, states it to be “ a debt of about $3,000.00, alleged to be due William Conway the brother-in-law of Evans.” The bill prays, among other things, that Conway and Evans may be made defendants, and required to answer on oath this allegation, and particularly to say what amount had been paid on this debt; and the prayer for general relief, from the very nature and object of the suit, required the court to ascertain definitely the amount of this debt said in the bill to be alleged in the deed of trust to be about $3,000.C0; and in order to do so the court could rightfully ascertain the condition of the accounts between the parties, when the deed of trust was executed, and also in what manner the balance was affected by their subsequent dealings. The court then did not err in its first decree, entered May 8,1867, in directing the commissioner “ to settle the accounts of the said George D. Evans and William Conway, and ascertain what sum, if any, was still due from the former to the latter.” Though it ought to have gone further and ascertained what sum, if any, was due at the time the deed of trust was given. This decree was not founded on the answer of Evans, but on the allegations in the bill; the answer of Evans not having been filed till eighteen months afterwards. It is presumed, that the pendency of this inquiry before the commissioner suggested the answer of Evans. If in the prosecution of this inquiry it turned out, that at the time the deed of trust was given and when the decree was to be entered, Conway was indebted to Evans and not Evans to Conway it might perhaps h® questionable, whether on the allegations in the bill any decree could be rendered against Conway, there being no allegation of his indebtedness in the bill; but as by one of the deeds of trust, set forth in the bill, .Evans assigned for the benefit of creditors all the personal estate he had, which terms would have included such debt due him, it might perhaps be proper for the court, having legitimately made the inquiry into the condition of the accounts between Evans & Conway, to have followed it up by a decree against Conway, if he was found in debt. If Conway had filed no answer, it is questionable whether the court upon the pleadings could have rendered a decree against him; but this question, it seems to me, was solved by Conway’s answer, filed at April rules 1867, in which he sets forth in detail the transaction between him and Evans in connection with the purchase by him and Evans jointly in 1854 of the Plum run farm of Willey, setting forth the various payments, which he claimed to have made dating back as far as the year 1854, and also the improvement he had made on the farm, and also stating he held two bonds of Evans executed to one Dawson, which had been transferred for a valuable consideration to him, Conway, before the execution of the deed of trust; and he prays the court to “adjust and adjudicate the difficulties arising in this cause between himself, complainant, and other contestants according to equity and good conscience ; and that if a cross-bill be deemed necessary, that it will be permitted to be filed.” Conway having thus in his answer invited the court to go back of the deed of trust, and to adjudicate the difficulties arising in the cause without change of the pleadings, cannot now be heard to object to the court’s so doing, even though, in thus adjudicating these difficulties according to equity and good conscience, a decree is rendered against him. The scope of the inquiry directed to be made by the commissioner, was evidently enlarged in accordance with the prayer of Conway’s answer; the inquiry, with reference to what’ portion of the purchase money of the Plum run farm had been paid by Conway, and what by Evans, and with reference to improvements made on this farm, being evidently based on Conway’s answer. Evans in his answer does not state, that the debt held by Conway for $3,000.00, as stated in the deed of trust, was so inserted with a fraudulent intent, and by collusion between him and Conway, but says it was so inserted “with a view of enabling the said Conway to complete the payment of the joint obligation of himself and respondent Evans, executed for the balance of the purchase money on the Willey farm, provided respondent Evans should fail to meet his moiety of the Willey purchase money obligation.” The court having, as I conceive, upon the pleadings then a right to order a settlement of the accounts of Evans & Conway, both prior to and since the execution of the deed of trust on August 28, 1862, the next inquiry is: Was the settlement actually made by the commissioner, as finally approved by the court below, a just settlement or should it have been set aside on the exceptions of Conway’s counsel. I have examined carefully all of the voluminous evidence in this cause, and have come to the conclusion, that the general views taken by the commissioner in his first report, and which have been quoted in the statement of the case, were not only correct at the time said report was made, October 1, 1869, but that none of the evidence taken since justified any change in these general views, though such subsequent evidence did show that certain items in this first report required correction, excepting only the treating of the .debt due from Evans to Conway, as fixed by said deed of trust of August 2S, 1862. The general conclusion then reached by the commissioner was, to use his own language, “that under the circumstances the commissioner can only say, that in consequence of the insufficient data furnished by the evidence, the absence of any contract of partnership, or other instrument, or evidence, showing the terms of the business, the inaccuracy of the evidence as to the amounts of the profits of their business already shared by each, and how the profits of the farms, used by them in their business, were shared by each, and of the amount of capital furnished by each, and how the profits of the farms, used by them in their business were shared by each, it is entirely impracticable to attempt to settle the accounts of Evans & Conway during the period from 1854 to August 28, 1862.” It is true another commissioner, in a subsequent repoi’t, attempted to settle these accounts prior to August 1862 between Conway & Evans, and the court approved his report; bat on an examination of these subsequent reports, and the evidence on which they are based, I think that this attempt at a settlement of their accounts ought to have been regarded by the court as a failure, the material, by which anything worthy of the name of a settlement could be made, not having been furnished the commissioner, and the evidence showing that it was impracticable to make such a settlement, the parties having really not preserved the means of reaching a just conclusion as to the state of these accounts between them prior to August 28, 1862. That such is the truth appears not only from a careful' examination of the evidence, but is apparent on the face of these reports. It is unnecessary to go through these accounts and point out the uncertainty that surrounds many of the items, as it will suffice to point out a single item, which is entered in the accounts without anything, which can be called evidence, to support it, and which is nevertheless so large an item as to control, in a great degree, the results of the entire settlement. The commissioner reports, that the amount'cleared on cattle and hogs by Conway & Evans, from 1854 to 1861, inclusive, with interest to January 20, 1870, amounted to $22,987.50,- and then the commissioner says: “ The evidence in the cause says that Evans received most of these profits; and the commissioner reports the amount that said Evans received, as seventy-ñve per cent, leaving twenty-five per cent" still due Conway, $5,746.87.” There is, in my judgment, nothing in the evidence to justify the commissioner in this conclusion. On the same evidence, substantially, a former commissioner reported, “ it was entirely impracticable to settle their accounts during this period.” There was no data furnished, by which the profits of their business could be stated, which would approximate accuracy; and even if this could have been done, the evidence is utterly vague as to what portion of these profits were received by Evans, and what by Conway. The parties kept no accounts of the amounts received by either of them. Conway insists that Evans received most of these profits, while Evans testifies that, in his opinion, he never drew out of the business more than his share of the profits; while neither party furnishes any data to make any sort of estimate of how much was received by either. The commissioner accordingly makes no statements of moneys received by either from these profits; he simply reports, “ that the evidence in the cause says that Evans received most of the profits, and the commissioner thereupon reports, that Evans received seventy-five per cent and Conway twenty-five per cent of these profits.” Upon this evidence, he charges Evans with the receipt of $17,240.61, and Conway with the receipt of $5,746.61. He could, with equal propriety, have charged Evans with the receipt of $13,000.00, and Conway with $10,000.00; or Evans with $20,000.00, and Conway with $3,000.00. The- court ought not to have approved such a report, but should have regarded the estimates made by the parties, when the deed of trust was given, as showing the true condition of their accounts at that time. It is true, no settlement was then made between them, and no accurate estimate made of the condition of their accounts; and they apparently differ greatly as to the estimate they then made; still, 1 think we may arrive at what their estimates then were with tolerable certainty, and cer-Mainly with far more accuracy than the mere guess which the commissioner has made.

To appreciate properly the statements and conduct of the parties, when this deed of trust was given, it is necessary to understand the situation of affairs so far as it can now be ascertained. The evidence shows, that prior to 1854 for many years Conway had been notoriously insolvent. At that time his brother-in-law, who possessed capital, partly with a view of aiding him entered into business with him in the purchase and sale of cattle ; Evans furnishing all the capital and credit, and Conway doing the principal part of the labor. The parties kept no accounts of their receipts or disbursements. They did a large business, and Evans probably received the larger part of the profits, though there is no means of ascertaining what portion of the profits either received. Conway had a large family whom he supported, and his pecuniary condition during the continuance of their joint business greatly improved. This business continued till the deed of trust was executed by Evans, August 28, 1862, and for a short time afterwards. About the time this business commenced, on February 24, 1854, Conway & Evans jointly purchased of William J. Willey his Plum run farm for $7,000.00, of which $2,000.00 was paid in cash, and the joint bond of the parties was executed- for the balance, $5,000.00. Of this $2,000.00, Evans actually paid over to Willey, $1,960.00 and Conway $40.00 only ; though he now insists that one-half of the entire cash payment was made with his funds. Upon the bond, given for the deferred payment including interest to the time the deed of trust was given, Evans paid about $2,550.00, and Conway had paid nothing except $150.00, in April 1855, if we include a payment of $150.00 interest to April 1, 1855, which though stated by the commissioner to-have been paid by Evans & Conway, ought to be further inquired into, for reasons hereinafter stated. The entire amount then due, of this purchase money was probably about $5,500.00. Evans by his deed of trust, dated August 28, 1862, secured a debt to Conway of “about $3,000.00.” Evans' in his deposition says that this provision was inserted, “for the express purpose of indemnifying said Conway for the amount, he might have to pay on the balance back on said "Willey farms, in the event that he, Evans, should be so unfortunate as not to be able to pay his portion of said balance, said sum so secured was in his opinion ample to secure his portion of said balance, and perhaps more, hence he used the language in the trust of “about $3,000.00.” Conway, on the other hand, in his deposition states, that a few days before this deed of tiust was executed, Evans told him of his pecuniary condition, and said he must then do something for Conway, and asked him if he would take it in land or in money, and Evans tried to sell some land to pay him, but failed, to make the sale. He states that “Evans did not say at that time anything about what he owed him (Conway), but said his wind was gone, and he (Conway) would have to take the Willey farm and pay for it.” He further states that a few days after the deed of trust was executed, Evans read it to him; he said that $3,000.00 would not cover what he (Evans) owed him. Evans replied, he made it about $3,000.00; but when we settle, if he (Evans) owed him more, it could be added to it, and if it was less, taken from it; as he (Conway) understood it $3,000.00 was what Evans owed him on account of their cattle dealing.” Tt is obvious from the entire testimony, that there was no collusion between Evans and his brother-in-law, Conway, when this. provision was inserted in the deed of trust, and there was no purpose on the part of Evans to defraud his creditors. And if their understanding at that time of the condition of their accounts can be ascertained, it ought to be adopted as the nearest approach to the truth that can now be reached, for it is obviously impossible to approximate justice by attempting a settlement de novo. The difficulty is to ascertain what the parties then thought was the f™e condition of their account. There was an apparent misunderstanding then between them ; but I think this was more apparent than- real, and that, in fact, they then agreed very nearly as to the true condition of their accounts. Conway says, “ he understood that Evans owed him about $3,000.00 on account of their cattle dealings.” But Evans had paid on their joint purchase of the Willey, farm $1,960.00 of the cash payment, which, with interest to the date of the deed of trust, amounted to about $2,850.00; and on their joint bond for the deferred payment he had paid $2,100.00, which, with interest to, the date of the deed of trust, amounted to about '$2,550.00; so that Evans’s entire payments on that land amounted then to about $5,400.00. On the other hand, Conway had paid of this cash payment, only $40.00, which, with interest to the date of the deed of trust, amounted to only about $64.00; and on the credit payment $150.00, which, with interest to same date, only amounted to about $216.00; so that his entire payments on this land amounted then to only $280.00. If they had paid equally what had then been paid, they should each have paid somewhat over $2,800.00; so that Conway, on this purchase of the Wil-ley land, then owed Evans more than $2,500.00; so that if, as Conway understood then, Evans owed him on their other dealings, about $3,000.00, their accounts then, taken altogether, were nearly square. According to Conway’s understanding at the time, he did not regard the purchase of the Willey farm as constituting any part of the partnership transactions of Evans & Conway; and hence he considered that on these partnership transactions Evans owed him about $3,000.00; while, on this purchase of the Willey land, he owed Evans nearly as much. Evans, on the other hand, while he very nearly agreed with Conway as to the true state of their accounts, speaks of them from a different view, and hence the apparent conflict in their statements. He regarded the purchase of the Willey farm as a part of the partnership transactions of Evans & Conway, and that all the payments made on this farm, whether by himself or Conway, were made out of the funds of the partnership, and equally for the benefit of each of them. When about to execute the deed of trust, knowing that he could in the future make no other payments on the Willey farm, and, as he told Conway, that he (Conway) would have to pay for it, he undertook, by the provision in his deed of trust, to indemnify Conway therefor. He says he inserted this provision in the deed of trust: “For the express purpose of indemnifying the said Conway for any amount, he might have to pay on the balance back on the Willey farm, in the event he (Evans) should be unable to pay his portion of said balance himself; said sum so secured, in his opinion, was amply sufficient to secure his portion of said balance, and perhaps more; and hence he used the language in the trust, about $3,000.00.” It is obvious from this statement, that he -regarded the purchase of the Willey farm as a part of the partnership business of Evans & Conway, and all the payments made by either of the partners as made out of the partnership funds; for the amount then remaining due on the Willey farm was a little less than $5,100.00, And if he had regarded this purchase as no part of the partnership business, and these payments as made out of his individual funds, and not out of the partnership funds, it would have been Conway’s duty to have paid out of his own funds all the residue of this purchase money, Evans having paid more than half of the entire purchase money, and Evans would have owed Conway nothing after he, Conway, had paid all the residue of the purchase money, and the provision in the deed of trust to indemnify Conway would have been absolutely absurd. Evans however regarding all the payments that had been made on the Willey farm, as made out of partnership funds, properly, considered, that when Conway paid the balance of the purchase money then due on the Willey farm, he would be in his debt to the extent of one-half of this balance of the purchase money. He ' estimated roughly that the one-half of this balance of the purchase money was “about $3,000.00.” It turns out it was only about $2,550.00. Evans states that at the time he deemed the amount named in the deed of trust as ample, and perhaps more than sufficient. As the security thus given for Conway was confined to what he might have in the future to pay for Evans, it is obvious that Evans regarded their past accounts, including the Willey purchase and all other transactions as about square. And in this opinion he differed but little, as we have seen from Conway. And this is the view which, I think, the circuit court ought to have taken, that it was wrong to attempt a settlement of the accounts of these parties de novo, and that, in the actual settlement as made, injustice was done Conway.

The court below should have adjudged, that all the accounts between Evans & Conway of every sort, including the purchase of the Willey farm, were on the 28th day of August 1862 square, and should then have ordered a settlement of the accoixnts between them subsequent to that day. In making this settlement the commissioner should have been, and should now be, instructed to regard Conway & Evans, as each entitled to one-half of the profits on all stock or cattle held by Conway & Evans on August 28, 1862. But should regard Conway as having no interest in t.he cattle and stock themselves, but only in the profits arising from their subsequent sale, the stock and cattle having been purchased out of funds advanced by Evans. All debts of Evans & Conway, paid since August 28, 1862, should be regarded as their joint debts, and one-half of such of them as were paid by Conway, should be charged against Evans as money paid for him; and in like manner Evans is to be charged with one-half of all sums of money, paid by Conway since August 28, 1862 on the purchase of the Willey farm, as so much money paid for Evans. Conway is not to be regarded as entitled to either of the two Dawson purchase money notes advanced by him, the evidence showing that his claim of them is ' not well founded ; he is to be credited by one-half to the taxes, paid since August 28, 1862 on the Willey or Plum run land, so long as a moiety of it was owned by Evans? and to the value of one-half of the improvements, put by him on said farm since that time, so long as a moiety of it was owned by Evans; and he is to be charged with one-half of the rents si nee that time, so long as the other moiety of it was owned by Evans. He is also to be charged with all the rents, received since that time of Evans’s other real estate or of Evans’s interest in other real estate, and to be credited by his improvements of such real estate and taxes paid thereon since that date. These rents should be charged at the amount per annum? heretofore fixed by the commissioner, as approved by the court, and the improvements since August 28, 1862 should also be credited to Conway, at the amounts heretofore fixed by the commissioner, and approved by the court; these estimates both oí the annual value of the lands and of the improvements being sustained by the evidence. In charging these rents the commissioner should charge interest from the end of each year, in which the rents are charged. It is true, that at common law in actions for the recovery of rent in arrear, it was a general rule not to allow interest, because the landlord had a summary remedy by distress; but this rule was changed by the 'Virginia act of March 2, 1827. See Acts of 1826-7, chap. 27, §3; since then there seems to be no difference between debts due for rent and other debts. In the Code of Virginia of 1860, p. 618, chap. 138, §7, it is expressly provided, that “ in actions for rent or for use and occupation, interest shall be allowed as on other contracts.” And the same provision is in the Code of West Virginia, p. 527, chap. 93, §7. That the rent is what is called “estimated” can make no reasonable difference. See Bolling v. Lersner, 26 Gratt., 65. The commissioner in his report of August 10,1870 in one place states, that Evans paid to John S. Ghisler on May 12, 1862 on the ' bond given for the purchase of the Willey farm ¡$200.00; yet in calculating the balance due on this bond in the same report, he appears to have accidentally omitted this credit. Unless there is some good reason for this omission, in restating this account this credit should be allowed. The case however was not and is not now in a condition to justify an order to ascertain the balance due on this bond. This bond was, as the record shows by an indorsement on the back thereof, assigned absolutely to George S. Bacon by W. J. Willey ; and George S. Bacon, by an indorsement thereon, assigned it to John S. Chiller. This indorsement is in these words:

“ For value received, I assign the within to John S. Ghisler, reserving all interest that may have accrued prior to the 1st day of April 1853.

“ George S. BacoN.”

With reference to this interest the commissioner reports thus: “ Credit paid by Conway to Elizabeth Wil-ley, $150.00. The balance of the interest to said date (April 1, 1855), in the absence of proof as to whom it was paid by, the commissioner presumes to have been paid by Conway-A Evans, $150.00.”

Neither W. J. Willey nor Geo. S. Bacon are parties to this puit. The general rule is, that where it is necessary to adjudicate the rights of an assignee, the assignor, or if he be dead, his personal representative must be made a party to the cause. See Corbin v. Emmerson, 10 Leigh 663. An exception has been made to this general rule, that where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is neither doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party: See Trecothick v. Austin et al., 4 Mas. C. C. R. 44; Ward v. VanBokelen, 2 Paige 289; James River and Kanawha Co. v. Littlejohn, 18 Gratt. 83.

¥m. J. Willey comes within this exception, and it was therefore unnecessary to make him a party; but' George S. Bacon does not; he has an interest expressly reserved to him in the assignment, and he or his personal representative, if he be dead, must be made a party, before the court could properly adjudicate, whether the interest in this note, which he expressly reserved to himself, had been extinguished. The court should therefore have required him or his personal representative to have been made a party defendant, and then should have made an order directing an inquiry to be made by the commissioner, as to whether the interest so reserved by him had been extinguished, and if so in what manner, and also what balance was due on said bond, and to whom. It is also urged as an error in this cause, that the court, ought to have decreed no sale of the lands of Evans, till the amount and priority of all the liens had been ascertained. The decrees complained of in this respect are consent decrees, and the sales made under them have all been confirmed; and for each of these reasons this Court cannot now review them. See Code of West Virginia, chap. 132, §8.

So much therefore of the decree of March 23, 1870 must be set aside and annulled, as approves and confirms that portion of the report of commissioner Moreland, filed January 27,1870, which was made in answer to the inquiry, “what sum, if any, is still due and owing from said Evans & Conway to John J. Chisler as executor of John S. Chisler, assignee of Wm. J. Willey;” and also that portion of said report, which was made in answer to the inquiry, “ what amount, if any, is due from said Evans to Conway on all accounts whatsoever;” and also so much of said decree as directs the commissioner to ascertain the balance of the purchase money on the Plum run farm. And so much of the decree of December 17, 1870 must be set aside and annulled, as approves and confirms that portion of the report of commissioner Moreland, filed August 10, 1870, which was made in answer to the inquiry, what was the balance of the pur- " chase money due on said Plum run farm, together with anything else deemed pertinent touching the matter of the payments Of same. And so much of the decree of the 21st day of September 1871 must be set aside and annulled, as approves and confirms that portion of the report of commissioner Moreland, filed September 20 1871 which reports the amount of the indebtedness of William Conway to George D. Evans, that accrued prior to January 1,1864, as $1,938.09, with interest thereon from January 20, 1870, and states the whole amount of the indebtedness of William Conway to George D. Evans on the 20th day of January 1870 to be $2,757.46, and also so much of said decree as orders that said Evans do, for the benefit of his creditors, recover against said Conway $2,757.46, with interest thereon from January 20, 1870 till paid, and that said Conway do pay the same to the receiver of the court, and as authorizes execution to issue therefor, and directs the distribution thereof; and also so much of said decree as directs, that unless the said Conway, or some one for him, do pay within ninety days the one-half of the residue of the purchase money on the Plum run farm, as it appears to the court, L. S. Hough and A. Brooks Fleming, who were thereby appointed special commissioners for that purpose, should sell as prescribed Conway’s undivided moiety of said land; and also so much of said decree, as reserves to George D. Evans for the benefit of his said creditors the right to come in under the footing of said decree, and ask for a sale of Conway’s estate to pay said debt, found due to said Evans. And this cause should be remanded to the circuit court of Monongalia county with directions to cause George S. Bacon, or his personal representative, if he be dead, to be made a party defendant to this cause; and to proceed with this cause-in the manner and according to the principles indicated in this opinion, and further according to the principles and rules governing courts of equity. And the appellants must recover of the appellees, other than A. S. Vance, C. Nicholson, Brown & Worm ley, William Lafferty, John Rogers, H. W. Gaddis, John H. Hoffman, P. H. Keck, The Frostburg Bank, William G. Brown, Philip S. Basnett, Rawley E. Dent and Nancy Dent, John J. Chisler ex’r of John S. Chisler, their costs expended in the prosecution of their appeal in this Court, which costs the. circuit court aforesaid is directed to have paid out of the funds which are now, or may hereafter be, in its hand or under its control in this cause, other than the funds, which may arise from any sale of the one moiety of the Plum run farm owned by William Conway, should such sale hereafter be made in this cause.

Cause Remanded.