Boggs v. McCoy

Greer, Phesident, delivered the opinion of the Cóurt: The court obviously erred in entering this last decree, or any decree on the merits of the case, till the personal representative of Jacob W. Morris was made a party to the suit. His personal estate was the primary and natural fund which must be resorted to for the payment of his debt to the plaintiff, before any real estate can be subjected to its payment. Before entering any decree on the merits of the case the court should therefore have required the personal representative of Jacob W. Morris to have been made a party defendant; and it should have first ascertained whether there was any personal estate in his hands properly applicable to the payment of this debt, if the debt be really due; and, if necessary to that end, a settlement of the áccounts of the personal representative should have been made under the direction of the court. See Laidley v. Kline’s adm’r, 8 W. Va. 218, and Bierne v. Brown’s adm’r et al., 9 W. Va. 755. If after the application of the personal estate, which was properly applicable to the payment of this debt, a balance was found to be due, and the plaintiff’s claim is made out by the proofs and pleadings, the court could then, and not till then, properly set aside this deed and order a sale of this house and lot. Without such evidence no such decree could be properly entered, as the answer denies that the deed was either voluntary or fraudulent. For these reasons the bill was obviously defective; and the court ought, not to have overruled the demurrer. Such a defect may be taken advantage of by demurrer, [347] plea or answer, or on the hearing, or even in the Appellate Court. See Clark v. Long, 4 Rand 451; Armentrout’s ex’r v. Gibbons, 25 Gratt. 377; McCoy v. McCoy’s devisees, 9 W. Va. 443. The court instead of overruling the demurrer ought to have given the plaintiff leave to amend, or to file an amended bill within a reasonable time; and if he refused or neglected to do so, the court then, and not till then, should have sustained the demurrer and dismissed the bill at the plaintiff’s costs. The decrees of the circuit court of March 10, 1876, and of March 7, 1878, must therefore be reversed and annulled; and the appellant must recover of the appellee, James A. Boggs, his costs about his appeal in this Court expended ; and this cause must be remanded to the circuit court of Roane county with instructions to permit the plaintiff to amend his bill or file an amended bill in a reasonable time, to be fixed by the court; and to be further proceeded with according to the principles laid down in this opinion, and further according to the principles governing courts of equity. The Other Judges Concurred. Decrees Reversed. Cause Remanded.