Parsons v. Thornburg , 1880 W. Va. LEXIS 13 ( 1880 )

Haymond, Judge,

delivered the opinion of the Court:

This casein some of its features is not unlike the case of Arbuckle v. McClanahan et al., 6 W. Va. 101. In that case the plaintiff .in his bill alleged, that he had made-payments upon and was entitled to reductions or offsets against the deed of trust debt, but he neither specified the payments of offsets in his bill nor filed with his bill as an exhibit and specification a list of such payments or offsets; and he failed to file any evidence in the cause proving or tending to prove his claim of payments or offsets. But the defendant did in his answer admit certain payments which were endorsed on the bond given for the debt and filed with his answer a copy of the bond with the credits endorsed. In that case it did not appear, that there was in fact any dispute as to the amount the debtor was entitled to as payments or offsets, before the land was advertised for sale by the trustee, or the bill was filed, or that the plaintiff had ever claimed to the trustee or creditor, that he claimed or was entitled any credits not admitted and endorsed on the said bond. Under these circumstances the court dissolved tbe injunction and the decree of dissolution was affirmed by this Court.

In the case at bar the plaintiff: failed to specify or state in his bill the’ payments, offsets or deductions, to which be claims in his bill he is entitled, with the exception of the value of the strip of about two acres of land, for which he claims he is entitled to a credit or deduction of some $500.00. It is true, the plaintiff states the aggregate amount, for whi.ch he claims a credit on the deed of trust debt, but it is manifest that this aggregate amount so claimed is composed of various items, but what they are is not stated with the exception aforesaid.

The defendant, James L. Thornburg, in his answer denies, that the plaintiff is entitled to a credit on the debt for $1,797.50, the amount claimed in the bill; but he admits, that he has paid in all on the debt $1,515.55, of which sum $1,160.00 was paid for interest up to the 1st day of September, 1873, which is credited on the note given for the debt in the handwriting of the plaintiff, Avhich is composed of a large number of items there aggregated and amounted to the sum of $1,160.00; and that since the date of said credit the plaintiff has paid him as follows, to wit: On the 22d day of September, 1874, in cash $200.00; nails, sixty;-five pounds; gray lime, twenty barrels; white lime, six barrels.; plaster Paris, one barrel, amounting in all to $40.55; that these items were gotten in the month' of September, about the time of the cash-payment, but he cannot state the exact date, and therefore he is willing to allow them all as of the same date of the cash-payment, also check of plaintiff or of some one else endorsed by him for $50.00, received October 17, 1874, $50.00 either in money or check, does not remember which, and $15.00 in money or check some time in the fall of 1874, he cannot state exactly when— making in all $355.55. And he avers this is all that has in any way been paid on said note now due, which does not pay the interest by several hundred dollars ; but he does not say that the last named items have been credited on the note, and he has failed to file the note or a copy it with his answer either with or without credits endorsed. The plaintiff failed to file any evidence proving or tending to prove that he was entitled to any credits or offsets against said defendant for any cause ; and the only evidence of his right to any credits are the admissions contained in the answer of said James L. Thorn-burg.

This case in some of its aspects, though not all, is like the case of Walker v. Summers et al., 9 W. Va. 533. In the last named case the plaintiff alleged, that he had sold nineteen of the lots, but failed to state to whom the sales were made, whether he had received payment in whole or part, and in fact made no allegations in reference thereto, except he did state the average price at which he sold. He failed also to make the alleged purchasers parties to the bill, and to allege that the trustee was about to or would sell these lots, and in fact it was fairly inferrible from the allegations of the bill, that the plaintiff did not expect or anticipate a sale of these lots. The court said : “Upon a proper case made by proper parties by the pleadings and evidence., the court might properly direct, that the nineteen lots aforesaid should not be sold under said deed of trust, until the residue of the land was first sold.” 9 W. Va. 547.

In the last named case the court dissolved the injunction granted in the cause, and authorized the trustee by a sale of the trust-property, or so much thereof as should be necessary, to pay the costs of sale and the sum of $6,879.65, the amount due thereon, on the 8th day of July, 1874; and the court then proceeded to decree further as stated in the decree. See pages 542, 543.. There was no consent to this decree by the cestui que trust, or the trustee. But the plaintiff in the ease appealed.

In the case at bar, if the decree had stopped with a dissolution of the injunction simply, then, I think from the pleadings'and circumstances appearing in this case, the decree would have been erroneous. The case, though like the two cases, to which I have referred, in some respects, is not like either of them in other material aspects, which is quite manifest upon examination. But the decree proceeds further than to dissolve the injunction. Immediately after the section of the decree dissolving the injunction and in the immediately succeeding part of the decree it appears substantially, that by the consent of the plaintiff and the defendants the court retained the case on its docket, in order that the real es-taté in question in the deed of trust mentioned should be sold under the direction and oontrol of the court, and the court then proceeds to ascertain in a general way the extent of the plaintiff’s lien for his debt secured by the deed of trust and then decrees (without ascertaining the amount due upon the debt, or giving a day for payment) that the trustee “ do so proceed to sell so much of the said real estate, as may be necessary to pay the said James L. Thornburg the amount of principal and interest due him upon said note and deed of trust at the ,date of said sale, together with the costs and expenses attending the said sale; and by the request of the plaintiff and of the defendants, other than the said James L. and Thomas Thornburg, and with the assent of the said James L. Thornburg, it was further adjudged, ordered and decreed, that the said trustee do sell the real estate as follows : 1st. All that portion thereof which has not heretofore been sold by the said plaintiff; and the said trustee before making such sale shall divide said land into lots of reasonable size, and shall sell the same in parcels, or as a whole, whichever will produce the great-amount of money. 2d. He shall, in case the portion of said real estate before mentioned does not produce a sum sufficient to pay the said debt, interest and expenses, then proceed and sell each lot and parcel of said real estate so sold by the plaintiff as aforesaid, commencing with that lot or parcel thereof last sold and conveyed, either by deed or title-bond, by the said plaintiff, and proceeding with the sale of each lot or parcel the date oí sale and conveyance of which is next preceding the one last sold, until the whole of the said debt, interest and expenses are fully paid off and discharged ; and that said trustee report his proceedings under this decree to this court; and this cause is continued for the coining in of said report.”

It seems to me, on close examination of the whole of the parts of the decree, to which I have referred, that the court did in effect continue the injunction'to a sale by the trustee under the deed of trust except in the' manner and upon the terms specified in the decree, and that the plaintiff as well as the other defendants to the decree consented to those parts of the decree, and that in fact the plaintiff and the other defendants requested and procured the court with the assent of the cestui qui trust to make the decree of sale, as the court did make it. 1st. The court at the “desire” of the plaintiff and the defendants, other than the said Thornburgs, and with their assent retained the cause on its docket, that the property might be sold under the direction and control of the court. 2d. The court proceeded to carry out the said desire and assents by ascertaining in general terms the extent of the lien and directing the trustee to sell. 3d. The court by the request of the plaintiff and the defendants, other than the said Thornburgs, and with the assent of the cestui que trust, James L. Thornburg, decreed, that the trustee should sell the property in the manner stated above and report his proceedings to the court. This request and assent of the material parties in interest was made to the decree directing the sale of the property, &c., without the court having ascertained in the decree the amount of the deed of trust lien or giving a day of payment; and such parties must be considered as having waived the same.

While the general rule, as laid down by this court, requires, that where the court directs the sqle of real property it shall first ascertain the amount of the lien-debts and their respective priorities and give a day for payment in the decree, still this-rule is not so fundamental in its requirments as to prevent the parties to the cause, who may. be interested in its enforcement, from dispensing therewith or waiving a compliance therewith by the court by their consent. In many cases it requires no inconsiderable delay to ascertain lien-debts, their amounts and priorities and the interest of all concerned require that there should be a sale of the property prior to that being done by the court, and it would be strange, indeed, if the court could not in such cases with the consent of the parties in interest direct such sale before ascertaining the amount of the lien-debts, and without giving in the decree a day of payment.

The effect of said decree as assented to is, that the trustee may sell as directed after giving thirty days notiee of the time and place, &c., of sale advertised and published as in the deed of trust specified, and also the sale would be for cash as specified in the deed of trust. It is objected, that the sale should not have been for cash, but upon the usual terms directed by courts of chancery.

The 1st section of the 132d chapter of the Code of 1868 of this State provides, that a court in a suit properly brought therein may make a decree or order for the sale of property in any part of the State, and may direct the sale to be for cash, or on such credit and terms as it may deem best. In this case the deed of trust provides, that the sale shall be for cash. The appellant executed the deed of trust and agreed to its stipulations and provisions, and although under circumstances it would perhaps be competent for a court of equity to direct a sale of trust-property upon its own terms different from those specified in the deed, still, I apprehend, when the court below directs a sale -according to the terms of the deed of trust as to the time of payment, the Appellate Court would not reverse the decree for that cause, unless the last named court was clearly satisfied of error in this respect. But if the Appellate Court would under some circumstances reverse the decree complained oí for error' in this respect, still it seems to me, that the parties in interest may dispense with or consent to a different course, if competent to act. They may waive any such change in the terms of sale from that specified in the deed of trust by a consent decree before the court below; — and that consent need not be expressly stated in the decree, but may be inferred from the face of the consent decree itself.

Without intimating what would be my opinion if the decree had been entered under some other circumstances, I am of opinion, that in this case it must be considered, that the parties in interest consented to said decree, as it was made and reads, and thal by such consent they should be held to have waived any cause of complaint here for this cause. The last clause of said decree is as follows: if And in ease any dispute shall arise as to any credits claimed by the plaintiff which are not allowed by the defendant, James L. Thornburg, the court reserves the right to pass upon and settle the validity of such credits upon the coming in of the report of said trustee.” If this decree was an ordinary decree of sale of land and otherwise correct, this clause in the decree would be erroneous and might affect the whole decree, unless entered by consent, bur as in this case the amount of the trust-lien is not ascertained in the consent part of the decree, but was intended by the parties and the court to be left open to some extent, I do not see that the plaintiff can be prejudiced thereby under the circumstances, but in fact the court incorporated this clause in the decree for the benefit of the plaintiff and for his protection, and the decree should not be reversed for this cause.

There appears on pages 61, 62, 63 and 64 of the printed record, what appears to be a special replication of the plaintiff to the answer of defendant, James L. Thorn-burg, and also at page 65 a paper designated as exhibit “A,” which is referred to in said special replication as exhibit “A,” and also at pages 68 and 69 of printed record a paper designated as “amended bill." There is no evidence whatever, which can be considered by this Court, that these papers or any of them were filed before said decree was made, and the cause does not appear to have been heard thereon. The clerk of the court below at page 60 of printed record says, that be has copied by request of plaintiff’s counsel the replication of plaintiff, which appears among the papers in this cause, upon which replication there appears an endorsement made with a lead pencil, in the following words: “ 1875, Dec. 22d, filed;” and then he gives the replication, which appears to be a special one alleging among other things affirmative matters, and said paper designated as exhibit “A” is copied as a part of said replication and is endorsed in pencil, says said clerk, “1875, Dec. 22, filed.” The said paper designated as “amended bill” is endorsed in pencil-writing, says said clerk, “1875, Dec. 22, filed.” But there is nothing to show that these endorsements are in the hand-writing of the clerk or his depluty or of the judge; and there is no order or entry of record showing or tending to show, that either of them were ever filed; and, as before stated, the decree does not show that the cause was heard upon said special replication or amended bill; but the decree does show, that the plaintiff filed a general replication to said answer. These papers under these circumstances cannot be regarded by this Court as a part of the record for manifest reasons. See Sims v. Bank of Charleston, 8 W. Va. 274 And if they were, under the view taken of thé decree complained of above expressed they could make no difference in my conclusion as to said decree. As to consent decrees see Manion v. Fahy, 11 W. Va. 482, 493, 499.

For the foregoing reasons it seems to me, there is no error in the said decree of the circuit court of the county of Cabell, rendered in this cause on the 16th day of September, 1876, for which it should be reversed, and that the same must therefore be affirmed; and' the appellant H. Chester Parsons must pay to the appellee James L. Thornburg $30.00 damages and his costs about his defence of his appeal and supersedeas in this cause expended.

The Other Judges Concurred.

Decree Affirmed.