Second National Bank of Ironton v. Ewing ( 1882 )

Snyder, Judge,

announced the opinion of the Court:

Bill in equity and attachment by the Second National Bank of Ironton against Thomas Ewing and wife and others to subject a tract of land in Cabell county owned by said Ewings — -they being non-residents — to the payment of a debt due from the said Thomas to the plaintiff. The attachment was levied on the land, order of publication duly executed and the cause regularly set for hearing. A decree of sale was entered, anda sale made at which Vesta Laidley, theap-pellant, became the purchaser. The sale was, reported to court and by the consent of the appellant the sale was confirmed by a decree entered September 4, 1878. And by like consent of the appellant the defendants were allowed six months from the date of the decree to redeeiii the land by paying the plaintiff’s debt and costs, and a copy of said decree was directed to be served upon the non-resident defendants. The said decree, also, directed that the plaintiff should give bond “ with condition that it will perform such further order as may be made by'the court in this suit in case the defen'dant appear' and make defense -herein within the time pre- .• scribed by law.” A copy of said decree was served on the defendants, Ewing and wife, on March 5, 1879, in Washington, D. C. And by a subsequent decree, entered March 24, 1881, the court- after citing that the defendants had been served with a copy of the decree aforesaid, and they having failed to appear or ask that the cause may be re-heard, confirmed the sale absolutely, and directed a deed to be made to the appellant for the land purchased by her as aforesaid. From this decree the purchaser, Vesta Laidley, appealed to this Court, and assigns as error that by said decree the sale to her ‘‘was confirmed- without condition, and releasing the conditions of the decree of September 4, 1878, without requiring the plaintiff to give bond as required by law.” The bond referred to, is -the one provided for by section 23 chapter 106 of the Code.

The decree of September 4, 1878, expressly requires the plaintiff to give bond as provided in said section 23 chapter 106 of the Code. And section 31 of said chapter amply protects the title pt a bona fide purchaser. It provides that such title shall in no wise be affected, questioned or impeached by any judgment or decree recovered in the suit by the defendants. And section 34 of said chapter provides, that 'if in any case, upon defense being made, it shall be ascer-'taind that the attachment was sued out without sufficient cause, judgment may rendered against the plaintiff. The ónly matter, it seems to me, which could give the purchaser a right to appeal would be a decree erroneously confirming or disaffirming the sale at which she purchased. Errors in the subsequent proceedings are matters in which

she has no concern and no right to appeal from. Kable v. Mitchell 9 W. Va. 492; Capehart v. Dowery 10 Id. 130.

The sale in this cause having been confirmed by the consent of the purchasher, she cannot appeal therefrom. Marrion v. Fahy 11 W. Va. 482; Armstorng v. Wilson 19 Id.

I am therefore, of opinion, that the appeal in this cause should be dismissed as improvidcntly awarded, and it is so ordered. No costs are awarded, because there was no appearance by any appellee in this Court.

The Other Judges Concurred.

Appeal Dismissed.