Livesay v. Feamster ( 1882 )

Green, Judge,

announced the opinion of the Court:

These two causes are so far distinct, as to make it suitable to consider them at first, separately-and then conjointly, so far as the decree of November 16, 1878, which was rendered on them jointly is concerned. And we will first consider the cause first instituted; the cause which J. J. Livesay was plaintiff. It was simply a bill brought by J. J. Livesay, to enforce the lien of a judgment of the circuit court of Greenbrier in his favor, against Joseph A. Teamster. The bill was filed at August rules, 1878. It made as it should have done, the trustees and cestuis que trust in the several deeds of trust, which had been executed by Joseph A. Teamster on his largest tract of land, parties defendants. And it stated, that one of these deeds of trust, in which the Iiandleys were the cestuis que trust, had been fully satisfied. And it further charged, “that there were other liens on the lands aforesaid, besides those hereinbefore mentioned, but does not state their amounts and priorities, nor to whom all are due.”

The summons was served on all the defendants named in the bill, except the Messrs. Handley; and it was served on the trustee in the deed of trust from Jos. A. Teamster for their benefit. A motion was made by the plaintiff, after Joseph A. Teamster and the other defendants had been served with notice, that the judge would make an order of reference in vacation; and on this motion on October 19, 1878, the judge did refer the cause to the commissioner of the court to report first, the value of the defendant Joseph A. Teamster’s lands; second, “the amounts, dignity and priority of all liens upon said real estate and to whom due;” tliird, all other pertinent matters. The commissioner forthwith gave notice to all the parties to the suit, including the Messrs. Handley, excepting only one of the trustees in one of the deeds of trust; but the cestui qiie. trust in this deed of trust was one of the parties notified, and excepting the cestui que trust in one of the deeds of trust, in which the trustee was one of the parties notified. Only three days notice, including Sunday, was given of the purpose of the commissioner to execute this order of reference. And he executed it in a single day. He was not required by the decree to advertise for judgment lienors or others to present their claims, but was only required to give the parties to the suit or their attorneys notice.

On November 16, 1878, there having been no exceptions filed to the commissioner’s report, it was confirmed. Two judgments were reported as liens on this land, binds the plaintiffs. One in favor of ¥m. W. Moore, and the oilier in favor of R. P. Lake, neither of whom were parties to the suit. And the commissioner also reported, that the deed of trust in favor of the Messrs. Handleys was satisfied, and that on the last two judgments, executions had been issued and levied on sufficient properly to satisfy them. This decree took the bill as confessed against the Messrs. Handleys, though they had never been summoned. Their trustee had before the commissioner as appears by his report admitted, that the deed of trust in their favor had been fully paid. This decree adjudged, that the amounts stated to be due in this report to the defendants in the bill, whose debts were secured by deeds of trusts, should be paid, but not the debt due the plaintiff by his judgment, nor the other debts due persons not parties to the suit, but who had judgment liens. And it then ordered, that unless Joseph A. Teamster, or some one for him, paid within ten days all the debts named in the commissoner’s report, as well as the costs of the suit, that the commissioners named should sell his lands for so much cash as would pay the costs of the suit and expenses of sale, and the balance on a credit of six, twelve and eighteen months, with interest from the day of sale taking, from the purchaser bonds with approved security; but not directing the taking of any liens on the lands to secure the deferred payments. Proper advertisement of the lands were prescribed by this decree, as well as a proper bond to be given by the commissioner of sales.

These were all the proceedings in this cause. Is there error in this decree? Though the record in this case proper, shows no controversy of any sort, and it was so plain and simple a ease, yet there are numerous errors and irregularities in it. The bill on its face shows, that there were judgments on the lands of the debtor other than the plaintiff's, and it was decided in Neely et al. v. Jones et al. 16 W. Va. p. 625, syllabus 5, that the plaintiff ought to have made formally defendants in the suit all creditors, who had obtained judgments against the debtor in the circuit court of Green-brier, where the lands sought to be subjected lie, as well as any other docketed judgments on the judgment-lien docket of that county. The bill however does not clearly show, whether these leinors not made parties belonged to this class; though the subsequent proceedings do show, that these were lienors of this class and that Wm. W. Moore and R. P. Lake, ought to have been properly made formal parties and served with process. Still if no objection had been made in the court below to so proceeding, this error might have been caused lw the court in its order of reference, directing the commissioner to call all judgment-lienors before him and audit their claims. See Neely et al. v. Jones et al. 16 W. Va. p. 626, syllabus 10, and Norris Caldwell & Co. v. Bean et al. 17 W. Va. 655, syllabus 2, sub-division IV and syllabus 3.

The rules laid down in these causes with certain charges and modifications, have been adopted now as a part of bur statute-law. See Acts of 1882, p. 359, 360, ch. 126 § 7. This statute-law should of course, be now strictly pursued in proceedings in suits of this character, whether the suits were instituted before or since this law went into effect; and should of course be pursued in this case, when it is again remanded to the circuit court of Greenbrier for further proceedings, as it must be.

The judge in his order in vacation made on October 19, 1878, failed to do anything towards the correction of this error in the bill in failing to make the proper parties, for he did not in this order of reference direct the commissioner to call before Mm the judgment-lien creditors by publication, and to. audit their claims. ITad he done so and thus made these judgment-lien creditors informally parties to the suit, if no objection had been made upon the authority of these "West Virginia cases above cited, this Court would not have reversed his decree of November 16, 1878, ordering a sale of the debtors lands, for this error, if no objection had been made, in the court below, as none was made.

The commissioner by this order of October 19, 1878, was directed to give the parties or their attorneys notice of the time and place for the taking of the accoxmts ordered. This he failed to do. His failure to notify one of the trustees in one of the deeds of trust, though he was a party to the suit, would have been excusable as he really had no interest in the accounts to be taken ; but his failure to notify one of the cestui que trust who had such interest, was inexcusable, even though he did notify his trustee, who merely held the legal title of land conveyed in trust for the security of Ms debt. To the parties to whom the commissioner did give notice, he gave but .a notice of two days'Sunday excepted; and he made up his report in a single day. This did not give the debtor nor the other parties, a fair and reasonable opportunity to produce evidence before the commissioner, and to have the accounts ordered fairly made. And in the notice which he did have served on all the other parties to the cause, except the one to the trustee and one to the cestui que trust, he misdescribed the suit by stating the plaintiffs’ name as J. J. Teamster, instead of J. J. Livesay. In Gales v. Miller 8 Gratt. (Bowyer v. Knapp, 15 W. Va. 292), it is laid down, that notice shoxdd indicate with reasonable certainty in what cause action is to be taken, and it is probable that this notice was on this account insufficient, had it been objected to in the court below. But this point it is unnecessary to definitely decide as it was not objected to in the court below.

If the report had been excepted to on these accounts, the circuit court ought to have sustained the exception. But as it was not excepted to these objections were waived by all the parties to this suit. See Peters v. Neville, 26 Gratt. 549; Hyman v. Smith, 10 W. Va. 299; Anderson v. Nagle, 12 W. Va.; McCarthy v. Chalfant, 14 W. Va. The judgment-creditors, whom tlie report of the commissioner shows existed not having been made parties, either formally or informally by order of publication, and having had no opportunity of having their debts properly audited, were of course not bound by the decree of November 16, 1878; and the purchaser of lands under that decree might still have had his land so purchased, held liable for the payment ol such judgments ; and injustice and wrong would thus have been done both to the purchaser and to these judgment-creditors, whose debts were not audited, and wrong would also have been done to judgment-debtor Joseph A. Feamster, as under such circumstances his lands might be sacrificed.

The court therefore erred in confirming the commissioner’s report, though not excepted to, and in ordering a sale of the appellant’s lands by this decree of November 16, 1878. If there had been no other error in this decree except the taking of the bill as confessed against the Messrs. Handley, though they had not been served with process, it would probably have been affirmed as they appeared before this court and asked a confirmation of it, and asked to be permitted to file in this court, a formal release of the deed of trust in their favor. It is true this was objected to by the appellants. Yet despite this objection it would now probably be permitted to be filed, if there had been no other reason for reversing this decree.

Under circumstances quite similar, this court allowed appellees to release errors in this court in the case of Arnold et al. v. Arnold et al., 11 West Va. pp. 455, 456; and on the authority of that ease and the cases cited in it, Craig v. Sebrell, 9 Gratt. 131, Moore et al. v. Holt, 10 Gratt. 284, and Mustard v. Wohlford’s heirs, 15 Gratt. 329, it is probable, that the motion of the appellees, the Messrs. Handley, to be thus allowed to release errors and file release of this deed of trust, under the circumstances of this case, would be granted, and this decree of November 16th affirmed if there had been no other error in it except that thus released. But as there are other fatal errors in this decree, it is unnecessary for this Court to act on this motion of the Messrs. Handley, and it is therefore not done.

We will now consider the cause of Joseph A. Feamster v. Samuel Tyree, and John W. Harris, adm’r of Joseph Feamster, heard with the cause above considered, and the continuation of this cause by the bill of Joseph A. Feamster v. John W. Harris and Wm. P. Ruckers, commissioners of sale under this decree of November 16, 1878; and John W. Harris, adm’r of Joseph Feamster.

The first of these was to obtain an injunction to prevent Samuel Tyree, trustee, from selling the land conveyed to him as trustee, to secure the debt due Joseph Feamster. The bill makes no mention whatever of the cause of J. J. Livesay v. Joseph A. Feamster et als., but was based solely on the ground, that the plaintiff Joseph A. Feamster was as he alleged, entitled to have corrected the settlement on which bis bond of four thousand six hundred and thirty-eight dollars and three cents was given to Joseph Feamster and secured by the deed of trust. In this bill Joseph A. Feamster claimed credits for two receipts; one for three hundred and eighty dollars and sixty-two cents dated May 7, 1868, and the other for two thousand seven hundred and sixty-three dollars— dated August — 1877, and also tor eight hundred dollars which he claimed he had paid to Joseph Feamster before this settlement, and which were by mistake all omitted to be credited in this settlement made when this bond of four thousand six hundred and thirty-eight dollars and three cents was given by him. The injunction as heard was granted September 25, 1878. The answer of the administrator of Joseph Feamster, made on oath, denied all the allegations of this bill, and all the ecpiities of the plaintiff except that it said, that the signature of Joseph Feamster to the receipt of three hundred and eighty dollars and sixty-two cents while not admitted to be genuine was probably his genuine signature, but it insisted that if the plaintiff had been entitled to a credit for this in said settlement he had got it, as the settlement wras made carefully and deliberately and all credits claimed that were proper were- allowed. Notice was given to dissolve this injunction. , The trustee Tyree, had not answered when this notice was served on October 19, 1878, on this bill and answer and general replication thereto, and the injunction granted was dissolved. Tyree, the trustee having filed his answer, and the cause being beard with the cause of J. J. Livesay v. John A. Feamster et als. at tbe next term of the court; and the decree oí November 16, 1868, this bill was dismissed and it was ordered, that John W. Harris, administrator &c., recover his costs. Was there any error in this respect, in this decree? It is claimed, that as the trustee, Tyree, had filed no answer the court could not properly dissolve the injunction. Tyree was a mere trustee, and the only person interested in the debt secured by the deed of trust, which the bill claimed was subject to large credits not given, did file an answer denying all the material facts on which the injunction was based.

There is no rule of a court of equity which requires in every case, that before an injunction will be dissolved on motion, every defendant must answer the bill. If the defendant, who has failed to answer is a formal defendant or if his answer would be in reference only to uncontroverted facts, the court may order the dissolution of an injunction though such an answer has not been filed, if the defendants really interested in the subject of controversy have answered, and deny on oath every material allegation in the bill, and no proof is offered to sustain the allegations of the bill. See Hayzlett v. McMillan et al., 11 W. Va. 464. In addition to McMillan & Leonard, Robinson as well as Hale, sheriff, were made defendants in the bill in that case. See p. 467. Only the parties substantially interested in the controversy, McMillan & Leonard, answered the bill on which the injunction was awarded. See p. 474. Yet the court on motion in vacation dissolved the injunction, and this Court sustained this action. There was tlibrefor no error in the judge of the circuit court dissolving this injunction, by his order of October 19, 1878, made in vacation.

At the next term of the court, the defendant Tyree, the trustee, filed his answer which in no way changed the cause or its merits, and the court on the hearing of the cause by its decree of November 16, 1878, dismissed the bill of Joseph A. Feamster at his costs. This was obviously right, though we have seen in other respects so far as the cause of J. J. Livesay v. Feamster et al. was concerned, heard with this cause, this decree was erroneous.

Joseph A. Feamster afterwards, on January 1, 1879, by bis bill called a supplemental and amended bill, again asked the court to reinstate this injunction which had been dissolved, or that an original injunction might be granted him to restrain the commissioners Rucher and Harris, appointed by this decree of November 16, 1878, from selling his lands, which they had advertised. None of these were parties to the cause of Livesay v. Joseph A. Feamster et al., except the administrator of Joseph Feamster. The bill was based on precisely the same facts as were set out in his first bill of injunction, and no “other facts are stated except, that in this decree of November 16, 1878, the whole of the bond of four thousand six hundred and thirty-eight dollars and three cents executed to Joseph Feamster, was held to be due to his administrator, and no credits allowed on it. But no other complaint was made of this decree of November 16, 1878, and none of the irregularities we have pointed out in the cause of Livesay v. Joseph A. Feamster et al., were pointed out or referred to. The whole complaint of this bill was, that the large debt due to Joseph Feamster’s administrator was entitled to the credits of three hundred and eighty dollars and sixty-two cents, as of May 7, 1868, and of two thousand seven hundred and sixty-three dollars as of August, 1877, as shown by the receipts of Joseph. Feamster filed with his first bill of injunction.

In this second bill of injunction no claim even is made to the credit of eight hundred dollars in addition; which Avas claimed in the puior bill to excuse himself for having failed to take any piroof to establish the allegations of his first bill of injunction. The phaintiff alleges that he gave notice to. take depositions to sustain these allegations in Lewisburg, on October 17, 1868, and that he Avas pu’evented by sickness from taking these depositions then. He files AA’ith this bill, his own affidavit and that of two other persons to p>rove this alleged sickness, and also the affidavits of four other piarties to prove the genuineness of the signature of Josepdi A. Feamster to the receipt of two thousand seven hundred and sixty-three dollars, dated the — day of August, 1877. The injunction was awarded by the circuit judge as puayed for on January 1, 1869.

The administrator of Josoph Feamster, filed his answer in which he repeats Avliat was said in his former answer to the first bill of injunction, and denies that Joseph Feamster ever signed this receipt for two thousand seven hundred and sixty-three dollars, dated the-day of August, 1877, and states, that if the plaintiff was ever entitled to any credit for the three hundred and eighty dollars and sixty-two cents named in the receipt of May 7, 1868, he had received it long ago; it being dated some eight years before the settlement was made on which the bond for four thousand six hundred and thirty-eight dollars and three cents was given.' And he alleges, that it is not true that the plaintiff was prevented from taking depositions to prove the allegations of his original bill of injunction by sickness, and that he had up to November 16, 1878, opportunity to take their depositions and have his injunction reinstated. This answer was sworn to by the respondent.

A. motion was made to dissolve this injunction after due notice, on January 25, 1879, and was by the judge continued till February 12, 1879, when it was dissolved by an order of the judge in vacation. Was there any error in this order dissolving this injunction. There were many depositions taken on both sides as to the controverted facts, and it was proven satisfactorily as we have shown in the statement of the facts in this cause, that the plaintiff Joseph A. Feamster was not prevented by sickness from taking depositions to prove the allegations in his original bill of injunction, prior to its deposition by the vacation order made October 19, 1878; and much less was he prevented from taking such depositions to reinstate his injunction, prior to the dismissal of this suit on November 10, 1878.

There was a great effort made by the plaintiff, to sustain these allegations with reference to his sickness made in this amended or supplemental bill as it is called. And there can be no question, but that much of the evidence given on this point by some of the plaintiff’s witnesses was false. But despite this effort it is clearly proven, that these allegations of this amended bill, with reference to the plaintiff’s sickness, were false and were made with fraudulent purposes.

The proof with reference to the genuineness of the signature of Joseph Feamster to the receipt for two thousand seven hundred and sixty-three dollars, in August, 1877, was con.flicting. Tlie weight of the evidence is in favor of this signature not being the signature of Joseph Feamster, and my conclusion is, that it is not; but what is perfectly satisfactory to show, that Joseph A. Feamster is entitled to no credit whatever, as of August, 1877, is, that it is affirmatively proven that he could not have paid Joseph Feamster that sum of money or any part of it, or given him any bond or receipts representing that sum or any part of it in August, 1877. During the whole of the month of August, 1877, Joseph Feamster was very sick, confined to his house, and much the greater part of the time to his bed, and actually died on September 10, 1877. During the month of August, 1877, it is certain, that he never saw Joseph A. Feamster. And he left at his death directly after August, 1877, no money in his possession, and no bond or receipts such as Joseph A. Feamster pretends he gave to him in August, 1877, and included in this false and fraudulent receipt of August, 1877.

The conduct of Joseph Feamster and other circumstances, named in the statement of facts in this case shows conclusively, that this receipt of two thousand seven hundred and sixty-three dollars of date the — day of August, 1877, was a forgery gotten up by Joseph A. Feamster in whose handwriting the body of this receipt was; and that either the name of Joseph Feamster appended to it was forged as was most probably the case, or if not, then that the body of the receipt was falsely and fraudulently written by Joseph A. Feamster over a signature ot Joseph Feamster on a blank piece of paper, which he had in some way got hold of. The evidence proved, that the smaller receipt for three hundred and eighty dollars and sixty-two cents, dated as far back as May 7, 1868, was genuine, but that it was given many years before the parties made a fair and full settlement of all matters, when the bond for four thousand eight hundred and sixty-three dollars and three cents was given, and that the plaintiff was entitled to no credit therefor on this bond, nor any other credit. lie entirely failed to offer any evidence even tending to show, that any mistake of any sort was made in the final settlement in which this bond was given.

I am therefore of opinion, that the material allegations contained in this original bill of Joseph A. Feamster, as well as those contained in his amended bill, were utterly untrue in point of fact, and that the cases set up by him in both these bills were based upon fraud and falsehood, and that the circuit court did not err in its order made in vacatiou in dissolving the injunction awarded on January 1, 1879. Though most of the decree of November 16th must be reversed and set aside, because of irregularities in the preparation of the case on the part of J. J. Livesay in his suit, yet as that part ol said decree that dismissed the appellant’s bill at his costs must be affirmed, as well as this last order dissolving the injunction awarded on January 1, 1879; and as all the matters really the subject of controversy in the court below were correctly decided by the circuit court, the appellees as the parties substantially prevailing, must recover of the appellants their costs-in this Court expended. The order of reference of October 19, 1878, as well as the decree of September 16, 1878, must be set aside, reversed and annulled, except that portion of said decree which dismissed the bill filed by Joseph A. Feamster against Samuel Tyree and J. ~W. Harris, as administrator of Josepli Feamster, which must be affirmed and all the other orders and decrees entered in these causes must also be affirmed; and the cause of J. J. Livesay v. Joseph A. Feamster et als., must be remanded to the circuit court of Greenbrier with directions to permit the plaintiff to amend his bill, and make the requisite parties defendants as prescribed in section 7 of ch. 126 of the Acts of 1882; and that he proceed further in said cause as prescribed in said chapter and according to the principles laid down in this opinion, and further according to the principles governing courts of equity.

Judges Johnson and Haymond Concurred.

Decrees Affirmed in Part Reversed in Part. Cause Remanded.