Jackson's Adm'r v. Hull

Snyder, Judge, announed the opinion of the Court: 1. The first error assigned is, that the circuit court improperly overruled the demurrer to the plaintiffs bill, for the reason “that the said bill seeks to have the defendant’s real estate sold to pay the plaintiff’s judgments, and does not allege that they are the only liens upon said real estate, and because it appears that there are other persons whose rights and interests are involved who are not parties to the bill.” And that it was also error to overrule the demurrer to the petition ofW. B. Caswell and S. M. Peterson, because “said petition shows upon its face that the decree set up therein was barred by the statute of limitations.” The objection of lapse of time was formerly considered a proper ground for a plea and not for a demurrer; for, it was alleged, the plaintiff should have the advantage of showing by replication exceptions which might take the case out of — 611 — the operation of the statutory bar. This however, since the abolition and disuse of special replications in equity practice, cannot be considered á sufficient reason for the distinction between a plea and a demurrer, as the plaintiff, if lie has any reason or exception to allege to take his case out of the bar arising from the length of time, should show it by his bill; and it is now clearly the rule in equity, that the statute of limitations, or objections in analogy to it, upon the ground of laches, may be taken advantage of by demurrer as well as by plea. 1 Dan. Chy. Pr. 559 sec. 9; Humbert v. Trinity Church, 24 Wend. 587; Duponti v. Mussy, 4 Wash. C. C. 128; Story’s Eq. Pl. § 878; Mitf. Pl. 321, 322. But in order to take advantage of the statute of limitations by demurrer to a bill or petition in equity, the rule is the same as it is in respect to other defects and insufficiencies, that the allegations of the bill or petition must show affirmatively or by necessary implication without reference to outside facts, that the claim of the plaintiff is barred or that he is not entitled to relief, though the facts alleged arc admitted to be true. Applying this rule of law to the bill and petition before us, the demurrer to neither can be sustained; because the facts alleged in either are sufficient to entitle the parties to the relief prayed for and these facts are not counteracted by other facts alleged therein which operate to defeat such relief. I am, therefore, of opinion that said bill and petition are sufficient and the demurrer was properly overruled. 2. As the second and third assignments of error relate to the decree set up in petition filed by W. B. Caswell and S. M. Peterson, they may be considered together. It is first insisted that the right to enforce the payment of said decree was barred by the statute of limitations at the time said petition was filed in this suit; and second shat said decree was procured by fraud and misrepresentation, and that, consequently the court should have sustained the appellant’s first exception to the report of commissioner Powell. In support of the said first ground, it is claimed that, as the said decree in favor of Caswell and Peterson was rendered, on the 20th day of April, 1867, and no execution or other process was ever sued out thereon, and no suit or action — 612 — was brought thereon until the 28th clay of May, 1877, when process was issued on their said petition, more than ten years having intervened, the said decree was barred by the statute of limitations. This Court in the case of Wardenbaugh v. Reid, 20 W. Va. 588, decided that “the lien of a judgment, on which no execution has ever issued, -will not be enforced in a court of equity in a suit brought after the lapse of ten years from the date of such judgment.” If, therefore, the facts in this suit are, as supposed by the appellant, the said decree of Casw’ell and Peterson is barred by time. But in my view' of this case the action taken by said Casw'ell and Peterson on the 24th day of March, 1877, arrested the running of the statute of limitations at that time which was less than ten years from the date of their said decree. It appears from the record that on the said 24th day of March, 1877, the said Caswell and Peterson presented to the ci remit court their petition praying to be admitted as parties plaintiffs in this suit, and thereupon the court ordered that they be admitted as parties plaintiffs, that their petition ho filed; and that said petition be remanded to rules and process be. issued thereon against the defendant, Hull, to answer the same. It further appears that at rules held in the clerk’s office of said court on the 28th day of May, 1877, process w'as issued on said petition, returnable to the next June rules, and, as shown by the decree of September 27, 1877, said process was duly served on the defendant. In a court of chancery, it w’as formerly necessary for the plaintiff to file his bill before the issuing and service of process. But now in this State, except in injunction suits, it is the practice to issue and have the process to answer served before the filing of the. bill, and when the bill is filed the ii.s pendens relates back to the service of the process. Harmon v. Byram, 11 W. Va. 511; 2 Bart. Chy. Pr. 1035. Where a bill is filed by one creditor as plaintiff, on behalf of himself and others, the statute of limitations will cease running against any of the creditors, who come in under the decree, from the time such suit was commenced. Ang. on Lim. § 881. .But if the suit be commenced by one lien-creditor, who does not sue on behalf of himself’ and other credi — 613 — tors, and an order of reference is made in such suit convening by publication all the lien-creditors of the same judgment debtor; in such case the statute will cease running against creditors, who may come into such suit, only from the date of the order of reference. Ewing v. Ferguson, 33 Gratt. 548. It is the constant practice in this State, where a suit is pending to enforce judgment-liens against a debtor’s lands, to permit other lien-creditors of such debtor to file petitions in such suit making themselves parties thereto. Marling v. Robrecht, 13 W. Va. 440. Such petition can only be filed by leave of the court, and an opportunity must be given to any party in interest to answer it. But where no new parties are brought into the suit by the petition, and especially where the cause is subsequently referred to a commissioner, so that all the parties interested can be heard and make their objections, it is not the practice to serve process to answer , the petition. Kendrick v. Whitney, 28 Gratt. 646; Marling v. Robrecht, 13 W. Va. 410. Where creditors at large file a bill to set aside a deed of their debtor conveying land as fraudulent, and other creditors of such debtor come into said suit by successive petitions, upon a decree setting aside such deed, the said petitioners will be decreed to have liens on such land from the respective dates of the filing of their petitions in the suit. Wallace v. Treakle, 27 Gratt. 479. And it seems, that the same rule applies where parties by petition come into a suit brought to subject the separate estate of a married woman to the payment of her debts; in such ease the petitioners will also have priority for the satisfaction of their debts out of such estate from the dates of their respective petitions. Hughes v. Hamilton, 19 W. Va. 366. The principle in all proceedings in chancery, seems to be, that the-first action taken by a party for the assertion of his claim by legal process, whether that be by the issuing of process for the commencement of a suit or the filing of a petition in a suit, already commenced, is treated as the institution of his suit, and from that time the statute of limitations ceases to run against him. Ewing v. Ferguson, 33 Gratt. 548; Kent v. Cloyd, 30 Id. 555. It necessarily follows, therefore, that the right of the petitioners, Caswell and Peterson, — 614 — to enforce, the lien of their decree was not barred by the.statute of limitations at the time of filing their petition in this suit. In reference to the second ground alleged against the said decree of Caswell and Peterson, I do not deem it proper to do more than to decide, that, if the appellant by the proof already taken or such further evidence as he may hereafter adduce, establishes the averments of his answer to the petition of said Caswell and Peterson filed in this cause, then the circuit court should set aside said decree as fraudulent. And as to the sufficiency or insufficiency of the proof now in the record to sustain said allegations, I express no opinion, as the cause must be remanded to the circuit court for errors hereinafter stated, where the matter can be more satisfactorily considered. 3. The fourth and last assignment is, that the “circuit court erred in decreeing the sale of the real estate in said decree mentioned, or the leasing thereof, without first having all the parties in interest before the court so that their rights in the premises could be settled and determined by a decree that would be binding upon them.” In Neely v. Jones, 16 W. Va. 626, this Court decided, that: “A creditor, who brings suit against a debtor to enforce against his lands a judgmeuUien, should sue on behalf of himself and all other judgment-creditors excepting those made defendants, and he should make formally defendants in the suit all creditors who have obtained judgments in the courts of record in the county or counties in which the debtor owns lands sought to be subjected to the payment of the judgments, also all creditors who have obtained judgments in courts of record or before justices in any part of the State, and have had them docketed on the judgment-lien docket of said county or counties. If in such bill the creditor should fail to sue on behalf of himself and all other judgment-creditors, but the court should afford to all judgment-creditors an opportunity to have their judgments audited before a commissioner, by directing a publication to be made, calling on them to present their judgments for auditing, the Appellate Court will regard this as a creditor’s bill, the same as if the plaintiff' in his bill had sued on behalf of himself and all — 615 — other judgment-creditors except those made defendants. It all the judgment-creditors are not made parties to such a suit, either formally or informally, and this is disclosed in any manner by the record, the Appellate Court will reverse any decree ordering the sale of the lands or the distribution of the proceeds of such sale.” In Norris, Caldwell & Co. v. Bean, 17 W. Va. 655, this Court declared that the necessary parties defendant to such bill are: “I — The judgment-debtor himself ; “II — The trustees in all deeds of trust on the judgment-debtor’s land sought to be subjected to the payment of judgment-liens ; “III — If the deeds of trust are deeds to secure the payment of a limited number of debts, then the • cestiiis que trust, in these deeds, including not only the parties to whom the debts secured are due, but also all the obligors in these debts, if there be any other obligor than the grantor or judgment-debtor, and • if the trusts are of different character then all the cestuis que trust in them, unless from their - indefinite description or some other good reason they would not all be made defendants in any suit in equity brought by an adverse claimant against the trustee respecting the trust-property; “TV — All the several plaintiffs as well as .all the several defendants in all judgments in the courts of record in the counties in which the lands sought to be subjected lie, which have been rendered against the judgment-debtor-alone or the judgment-debtor and other defendants jointly, and also all the plaintiffs and all the defendants in any such judgments, whether rendered by courts of record or by justices in any part of the State, which have been docketed on the judgment-lien docket of said county or counties; and “V — Any other party, who according to the general rules of equity in the particular case has such a direct interest in the subject-matter or object of the suit, as would render it necessary that he should bo made a defendant to the suit, as for instance the transferee or other owner of any debt secured by a deed of trust on any part of the real estate sought to be subjected to the payment of the judgment-debts.” Shenandoah V. N. Bank v. Bates, 20 W. Va. 210, — 616 — Our statute how provides who shall be made parties to a suit by a lien-creditor and how notice shall be given to other lien-holders — section 7, chapter 126 of Acts 1882. And section 8 of said act provides that: “"Where the real estate liable to the lien of a judgment- is more than sufficient to satisfy the same, and it, or any part of it, has been aliened, as between the alienees for value, that which was aliened last shall, in equity, be first liable, and so on with other successive alienations until the whole judgment is satisfied-” Section 9, chapter 139 of Code, p. 666; Renick v. Ludington, 20 W. Va. 511. Applying these principles of equity to the decree appealed from in this cause, the errors are apparent and need but little discussion. The only original parties to the suit were the plaintiff, H. J. Jackson’s administrator and the defendant, R. M. F. Hull, and no one was subsequently made a party except, W. B. Caswell and S. M. Peterson, who wore made such on their own petition. These are the only parties to the suit, made so either formally or informally; for this was not a bill filed by the plaintiff on behalf of herself and all other judgment-creditors, nor was it made a creditors’ bill by reference to a commissioner and a convention of the creditors by publication in a newspaper. The judgment-debtor at the date of the deorree owned no real estate, behaving by successive alienations prior thereto disposed of all his real estate. None of his alienees are parties to the suit, yet the decree orders their real estate to be sold or rented. And the order of renting or sale is not to subject said real estate to the payment of the liens thereon in the inverse order of the aliena-tions as required by the statute, but they arc subjected without distinction. The judgments of Braiden, Buth & Co., A. B. Clark & Bro., M. .P. Amiss, J. H. Haun & Co. and Jenkins, Jackson & Co. and the trust-debt of H. W. Buckleyare considered and rejected without either of said creditors having been made parties or having an opportunity- to be heard; and a debt is allowed in favor of the.Parkersburg Mill Company, without its having been in any manner made a party. For these errors and, perhaps of others, -which, if they exist, it is unneccessaiy to refer to, the said decree of the circuit — 617 — court of April 8, 1880, must be reversed with costs to the appellant against tlie appellees. And this cause is remanded to the said circuit court of Wood count}7 with leave to the plaintiff to amend bis bill by making parties thereto all those whom it is necessary to make such according to the rules and principles set. forth in this opinion; that the appellant, Hull, and the petitioners, W. B. Caswell and S. M. Peterson, have leave to take any further proof they, or either of them, may desire in support of the allegations in the petition of said Caswell and Peterson filed in this suit or the answer of said Hull to said petition; and that this cause be further proceeded in in said circuit court according to the principle announced in this opinion and further according to the rules and practice in courts of ccpiity. The Other Judges Concurred. Decree Reversed. Cause Remanded.