Kuhn, Netter & Co. v. Mack & Bros.

Maxwall, J. The first error assigned in this case is, that it was error for the court to hear the cause and pronounce a final decree in the same at the time it did. The bill was filed at the June rules, 1867, and at the July rules the cause, was set for hearing as to Mattingly, and at the September rules the defendants, Mack & Brothers, filed their answer, and gave notice to dissolve the injunction. At the April term, 1868, the injunction was dissolved and the bill dismissed. The decree shows that the cause was heard upon bill and exhibits filed therewith, the answer of the defendants with replication thereto, and the proofs taken in the cause and was argued by counsel. There does not appear to be any error in hearing the cause when it was heard, as it seems to have been ready for hearing, although not formally set for hearing, as to all the parties, but no objection was made to a hearing, for that reason. Brakeleys vs. Tuttle, 3 W. Va. Rep., 86. [194] The next cause assigned as error, is, that if the court could properly have dissolved the injunction, it was error to dismiss the bill at the same term. There can be nothing in this assignment of error, because the cause was heard upon its merits. The appellants claim in the third assignment of error,that it was error for the court to undertake to pass on the deed to Dolmeyer for the benefit of Mrs. Barbara Busch, when they were neither before the court. This seems to be a most palpable error, but it is not error that can prejudice the appellants, and I cannot see that they have any right to complain of it. The fourth cause of error assigned is, that if the decree had been otherwise right, it was error for the court to pronounce the deed of trust absolutely void, instead of void as to the said defendants, in respect to their debt, and thus deny to the petitioners the right to the surplus, if anything, after satisfying the defendants’ demand, to a proper account; and fifth, it was error on the merits for the court to pronounce the deed void and deny the petitioners proper relief on their bill. In the light in which I view this case, these two assignments of error include the merits of the entire case. In the first place, the appellants had no right to go into a court of equity, on the case made in their bill, because their remedy is complete and adequate in a court of law. Sheppards vs. Turpin, 3 Grat., 373; Bowyer vs. Creigh, 3 Rand., 25; Allen vs. Freeland, Id., 110; Watkins vs. Logan, 3 Monroe, 21. In the second place, the deed of trust, in so far as it grants the “ cloth, goods, wares, and merchandize, and stock in trade,” is null and void as to the said Mack & Brothers, because the reservation in the grantor of the right to sell said stock in the course of business is inconsistent with the object of the trust, and adequate to the defeat thereof. Long vs. Lee, 3 Rand., 410; Sheppards vs. Turpin, 2 Grat., 373; Spence vs. Bagwell, 6 Grat., 444. The agreement contained in the trust to supply the place of any goods sold by addi [195] tional purchases, cannot take this case out of the rule in the cases referred to. It seems to me that the court below should have dissolved the injunction and dismissed the bill for want of jurisdiction, and should have made no decree setting aside the deed of trust as it did. If the court could take jurisdiction, it could only set aside the trust as to the goods, &c., which the grantor reserved the right to sell, and then only to an extent sufficient to satisfy the execution of Mack & Brothers. The decree complained of will have to be reversed, with costs to the appellants, and proceeding to enter the decree which the court below should have rendered, this court must dissolve the injunction and dismiss the bill. The other judges concurred. Decree reversed, and bill dismissed.