Handly v. Sydenstricker

Berkshire, President. There would have been no error in the first decree of sale rendered in the cause, upon the state of facts then developed, if it had appeared by the record, that the rents and profits of the lands decreed to be sold would have been sufficient to pay the judgment of Surbaugh in five years. But as the law in respect to the rents and profits has been changed by the Code of West Virginia, since the decree was pronounced, rendering an inquiry as to the rents and profits useless, this error might not now be regarded as material, if there were no other errors appearing on the record. The case was essentially changed, however, upon the [608] filing of the injunction by Knight. It thereby appeared that Handly, the debtor, then owned another tract of land, which he had obtained from Callison, in exchange for the tanyard property, which he had previously received from said Knight, in exchange for the land received by him from Rader, which land, last named, is the same that was directed to be sold by the decree aforesaid. Upon the state of facts disclosed at the time of the last decree for sale, therefore, I am of opinion, it was plainly erroneous. That the lien of a judgment will attach to the after acquired lands of the debtor, is not an open question. And in my view, such real estate acquired or aliened by the debtor, subsequent to the date ©f the judgment, is clearly within the terms and reason of the 10th section of chapter 186 of the Code of 1860, p. 771.- But independently of the statutory provision, it appears to me clear, that in a case where a creditor is seeking, in a court of equity, to enforce a judgment lien against( his debtor, and the latter is then the owner of real estate upon which the lien attaches, the principles of equity would require that the lands of the debtor, who ought to pay the debt, should'be applied to the discharge of such judgment before resorting to lands, upon which the judgment was also a lien, then in the hands of his alienee. From this view, it follows that the injunction of Knight should have been perpetuated instead of being dissolved; that- the lands then owned by Handly, decreed to be sold first, and if not sufficient to satisfy the judgment, then the real estate last owned and aliened by him until said judgment was fully paid. As, however, the title and description of the tract of land still owned by Handly, the debtor, and which, as we saw, should be first sold, are vague and indefinite, (the only description being, that it was a “valuable tract of land, lying on Spring creek, in said county, now in the possession of said Handly, and upon which he resides,”) I [609] think the ease should be referred to a master, to ascertain and report the title, location and description of the said tract, unless it shall be satisfactorily ascertained in some other mode, prior to the decree for sale. It was suggested that the creditor, in this instance, would be unreasonably embarrassed and retarded in the collection of his debt, if compelled to resort first to the lauds now owned, or such as were acquired subsequent to the judgment by the debtor Handly, instead of at once pursuing the land owned by him at the date thereof, now in the possession of the defendant Rader. It is not perceived that there is much force in the suggestion, for unless it should appear with reasonable certainty that the land first liable would be sufficient to discharge the judgment, it would not be error to decree and advertise together the sale of all the land upon which the lien existed, and then proceed to sell it in the order in which it was liable, until a sufficient sum is realized to pay off said judgment and costs of suit. McClung v. Bierne, 4 Leigh, 394. I think the demurrer to the bill of review or supplement was improperly overruled. The bill disclosed on its face no error in the decree sought to be reviewed, and consequently there was nothing for it to operate on.; even conceding that there was such a “ definitive sentence ” or final decree in the cause, at the time it was filed, as would make it proper to allow such a bill to be filed; as to which point, however, I express no opinion. I am of opinion, therefore, to reverse the decrees, with costs here, and remand the cause to the circuit court for further proceedings. The remaining members of the court concurred. Decrees reversed.