Harmon v. Byram's Adm'r , 11 W. Va. 511 ( 1877 )

JoimsoN, Judge,

delivered the opinion of the Court.

The question presented in the record is: Did the petitioner, Robert Patton, under the circumstances, have the right to be made a defendant to the cause, and did the court err in denying him leave to file his petition? Counsel for the petitioner insists that the court did err in so refusing the leave to file the petition, and assign a number of ■ errors. The first is that “ the petition sought to be filed, and the accompanying exhibit disclosed facts which rendered it illegal, unjust and oppressive, to enter the decree complained oí, until an opportunity had been afforded the petitioner to establish facts therein alleged. Some of the facts are abundantly established by the exhibit filed with the petition.” It must be remembered that there is absolutely nothing in the record to show, that the court below ever saw the exhibit referred to in the petition. The petition was tendered on the 24th day of April 1873, and on that day the decree of sale was .-rendered, and the petition itself declares, with reference to said exhibit,” “a copy of which agreement, duly recorded in the county of Putnam, will be filed herewith, as soon as the same can be transcribed, and which petitioner prays may be considered a part thereof.” It is not designated in the petition by any mark, as an exhibit, and the record does not disclose that it ever was filed; it is true that a paper purporting to be an agreement between Benjamin P. By-ram and Robert Patton, dated June 20, 1872, is copied in the record : but how it came into the file we are not informed; certainly there is no evidence that it was before the court when the decree was rendered. The case must stand upon what is alleged in the petition, unproved by anything that may be in the so-called exhibit. The second error assigned is: That “ even if upon the hearing of the matter of said petition, the court should have deemed them insufficient to delay the rendering of the decree complained of, it was a gross violation of the principles of natural justice to refuse permission to the petitioner to allege, and show, if he could, the existence of such facts; for the refusal to allow the petitioner to file his petition is equivalent in, force and effect to denying him the right to assert that he has rights in the property in controversy.”

.. It could have no such effect; he might have rights in the property in controversy, and yet have no right to be a party to the suit. He was a pendente lite purchaser, as we shall hereafter show. If he had no right to be a defendant to the suit, then it would have been a vain thing to have allowed him to file his petition. If, by filing his petition, he had no right to delay the canse, and prevent the rendering of the decree that was rendered in the cause, it would certainly have not availed him anything to have filed his petition, and he is not prejudiced thereby.

Another error assigned is, “that it appears by the agreement aforesaid that Patton had assumed, in part payment of the price of said lands, to pay the plaintiff (Harmon’s) debt, as well as the debt to Capehart’s executor. On this fact being known to the court, taken in consideration with the allegation of said petition, that he had paid part of said debts, and had sold of the lands in controversy enough to'pay the residue of said debts, it was error to refuse permission to said Patton to show these facts.” If he had agreed to pay the Harmon debt, why did he not pay it ? He certainly could not ask Harmon, who had nothing to do with any agreement between himself and Byram, to wait until he could collect money enough off the parties, to whom he had sold any of the lands, to pay the said lien. The allegation as to payment of any part of the Harmon debt is vague, and indefinite; it is : “Your petitioner employed Mr. Geo. Rowley, living near the lands in Mason county, to make these sales, and to collect the purchase money, and apply the same to the lien aforesaid. The said Rowley has collected and applied of said proceeds more than $400.00 to the debt of said Harmon.” It is not said how, when or to whom, the money was paid. In the joint and several answers of the administrator, with the will annexed, and devisees of said Byram, it is claimed “ that there should be two credits placed on said judgment for money paid thereon since the rendition of the same, to-wit: One for the sum of $297.80 as of the — day of June 1872, and the other for $200.00 as of the 18th day of August 1872, as they have been informed and believe is the case. It is presumed that this ^ie ñíime money reform! to in the ]ietition; and as there is was more than |400.00 credited on the judgment by the decree, the petitioner has no right to complain of that matter. It is further claimed as error, that the decree required the sold lands to be first sold instead of last. If “ sold ” lands refers to the sale of the lands to Patton, the petitioner, by Byram, then according to the petition ■ they were all sold-lands, and it could make no difference which were offered first;, if by this is meant lands that Patton had sold, the answer to. that objection is, that the name of a single purchaser from him is not mentioned in his petition, and not one of such purchasers made any complaint. On this point under the circumstance appearing in the case, the petition is not sufficient- to allow the petitioner to be made a defendant to the suit.

It is assigned as error, “ to decree the sale of the lands, in the face of the allegations of said petitioner, that he had already sold to bona fide purchasers at a fair price ,sufficient of the same land to satisfy the plaintiff’s demand, before inquiry bad been made on this point. This assignment is not worthy of serious consideration. It would be monstrous to hold that a judgment lienor under the circumstances of this case, should be arrested in his effort to enforce his lien, until the debtor or bis vendee had sold lands and collected the money sufficient to pay the debt, or wait until he had collected by suit or otherwise sufficient money to discharge the lien. It is also assigned as error, “ to decree the sale of the land, -when it appeared to the court, that there were bona fide owners of the equitable title thereof, without giving such owner, an opportunity of showing their rights in the premises.” It does not appear what equitable owners there were except Patton himself, and he claims to be a legal owner. The petition does not show, that anybody had any right to prevent the judgment lienor from enforcing bis lien and again those alleged “equitable owners,” if such there be, were not asking anything of the court.

It is also assigned as error, “to enforce the lien of a judgment on ]and when It appeared to the court that the legal title was not then in the judgment ¿Pbtor, but in the petitioner or in some purchaser from him for value, without giving the petitioner and thPse claiming under himjan opportunity of exhibiting their rights.’" The question whether the petitioner showed he had a legal or other title to any of the lands sought to be sold will not be discussed here. Taking his petition to be true, he was a pendente Hie purchaser, and all the rules of equity with reference to the rights of such purchaser must apply to him if he was a purchaser. Generally speaking an as-signee pendente lite need not be made a party to a bill, or be brought before the court, for every person purchasing pendente lite is treated as a purchaser wi th notice, and is subject to all the equities of the person, under whom he claims in privity. And it. will make no difference whether the assignee pendente lite be the claimant of the legal or of an equitable interest, or whether he be the assignee of the plaintiffs or of the defendants. Story’s Eq. PL section 156. There can be no doubt that Patton was a purchaser pendente lite. The subpoena was issued on the 3d day of January 1872, and was served on the defendant Byram on the 6th of the same month. On the 20th of January of the same year the purchase was made; and the bill was filed at February rules following. A subpoena served is not a sufficient lis pendens, unless a bill be filed ; but when the bill is filed, the lispendens begins from or relates back to the service of the subpoena. 3 Sug. 459; Newman v. Chapman, 2 Rand. 93.

The common law doctrine of lis pendens, as applied to this case, is in bo way affected by sec. 14 of chap. 139 of the Code, which provides that: “The pending of an action, suit or proceeding to subject real estate to the payment of any debt or liability, upon which a previous lien shall not have been acquired in some one or more of the methods prescribed by law, shall not bind or affect a purchaser of such real estate, unless, and until a memorandum, setting forth the title of the cause, the court in which it is pending, the several objects of the suit, ' the location and quantity of the land, as near as may be, and the name of the person whose estate therein is intended to be affected by the action or suit, shall be filed with the recorder of the county in which the land is situated;” because in this case a lien by judgment had been previously acquired, and duly docketed. We do not think the petitioner, Patton, showed in his petition a right to be made a defendant in said cause. Whether if he had such right, he could or could not have appealed from the whole decree, or from such part as denied him the right to be made a defendant, we will not now decide; ns the question does not properly arise in the record.

For the foregoing reasons I am of opinion, that the appeal was improvidently allowed; and it is therefore dismissed at the costs of the appellant.

Appeal Dismissed.