Carskadon v. Minke

Snyder, Judge: The petition for the appeal in this cause contains, in various forms, modifications and subdivisions, about thirty assignments of errors, many of which do not arise in the record, and nearly all of them are without merit. Some of them are to interlocutory orders never acted upon or given any effect in the final decree. Others are to the action of the court sustaining exceptions taken by the appellant, and others again are to questions of fact and accounts reported upon by the commissioner concerning which the evidence.on which the commissioner acted was not required to be filed or made a part of the record. Thompson v. Catlett, 24 W. Va., 524. While this Courtis necessarily indulgent in giving lattitude to counsel as to the form in which they may elect to present the errors complained of, or as to the number of assignments they may think proper to make, it is earnestly advised and hoped, that they will not carelessly and unnecessarily occupy the time and increase the burdens of Court by making irrelevant and inconsiderate points, and assignments which ought and would be omitted upon a proper examination and understanding of the record. Such points and assignments, and the repetition of . the same point in various forms, as also what may be termed “ fishing ” assignments, can not subserve any good purpose, but are a positive inconvenience to the Court and discreditable to counsel. The assignments now before us are rather the occasion than the cause of these remarks, as the fault complained of has been found in other cases so frequently that we deem it our duty to call attention to it. But in doing so no particular re — 737 — flection is intended to be made upon the action ot the learned counsel who may have prepared the petition in this cause, as no doubt it was prepared in good faith and, perhaps, without time to examine the record thoroughly. The first assignment of error of sufficient importance to require notice is the overruling of the demurrer to the bill. The appellant contends that the bill is multifarious, that it seeks to enforce the plaintiff’s vendor’s lien, to settle the transactions of the Keyser Land and Improvement Company, and to specifically execute contracts made by said company with various purchasers for lots sold against such purchasers without having made them parties. This we think is a plain misconception of the object and purpose of the bill. It does not seek to enforce the contracts for lots sold and asks no relief whatever against the purchasers thereof. It does not contemplate any interference with their contracts or any disturbance of their rights. To have made these purchasers parties and have asked relief against them would have made the bill multifarious. The agreement of October 23, 1874, provided that a portion ol the proceeds of the lots sold should be credited on the plaintifi’s debt, it was therefore necessary for the plaintiff to state that fact and ask for an ascertainment of the amount realized from such sales and a settlement between the parties to said agreement in order to find the balance due on his debt. That agreement was made by all the parties and it distinctly and expressly provided by reference to the deed of October 19,1874, and the contract of purchase, that the plaintiff should release his vendor’s lien on all lots sold. The lots having thus been sold free from the lien of the plaintiff, he could not have enforced his lien against them. The appellant joined in these sales, and he was, consequently, estopped from demanding that the purchasers thereof should be brought into this suit for the purpose of subjecting their lots to the payment of his debt to the plaintiff. The proper and only purpose of the bill is plainly stated in it. It was to enforce the plaintiff’s lien for the purchase-money due against the unsold portion of the said land and it contained the proper allegations and parties for that purpose. I therefore think the demurrer was rightfully overruled. — 738 — It is claimed that the circuit court erred in its direction to the commissioner to exclude the testimony oí the parties in settling the- firm or company accounts between themselves. It is evident from the exceptions that this ruling was made at the instance ot the defendants and therefore in part at least by the appellant himself. But be this as it may, the court did right. McBride one of the partners was dead and in such case the statute declares'that the survivors shall not be examined as witnesses in regard to any personal transaction or communication between them and such deceased person. Sec. 23, ch. 160, Acts 1882, p. 544. Several assignments of errors are founded on the overruling of the defendants’ exceptions to reports of the commissioner which were afterwards re-committed and which exceptions were not renewed or made to the final report on which the decree complained of is based. The items or matters thus excepted to in the former report and not excepted to in the final report can not be considered as open for judicial investigation either in the court below or the appellate court. Kee v. Kee, 2 Grat. 117. The only other objections open for consideration by this Court are the exceptions of the defendants to the final-report of the commissioner, and the propriety of the final decree. The court in its decree of December 5, 1881, states its reasons for everruling the first and second exceptions to said report, in substance, as follows: It appearing to the court from the evidence and reports of the commissioner and the answers and accounts filed therewith that, by the mutual agreement of all the parties and with a view of promoting the sale of the said 100 acres of land, many lots thereof were sold for horses and other property, and large quantities of lumber were purchased by them, one half of which was to be paid for in lots at specific prices and the other half in cash; that the horses and lumber and other property thus obtained were sold by the several partners; each in rendering an account of his transactions charged himself with the gross proceeds received therefrom and credited himself with the amounts paid for freights and other expenses incurred in taking care and disposing of the same, including expenses of the partners while attending to the business, and that the — 739 — money thus realized was considered by all as the proceeds of the land; and it appearing further that all the items in the said first exception are charges of this character and that the plaintiff has been charged with all the gross proceeds received by him and not merely the one half thereof, and that the receipts with which he has been charged greatly exceed the amount paid by him for freights and other expenses, and that the defendants have the benefit thereof, all of which the court thinks is just and equitable, it doth overrule said first and second exceptions. I think these reasons of the circuit court are well sustained and fully warranted by the record. It' is not claimed that any of the items mentioned or referred to in said exceptions are incorrect or that the company did not get the benefit of them, but it is claimed that under the agreement of October 23, 1874, the expanses alone should have been deducted from the gross proceeds of the sale and three fourths of the residue credited on the plaintiffs debt, leaving the other charges and accounts to be settled among the parties as a distinct transaction. The injustice and inequity of so doing is sufficiently apparent from the reasons given by the circuit court and further discussion could not make them plainer. The third exception to the report was also properly overruled. The report does not, nor does the record, so far as I can discover, show any such figures as $1.0,179.87, or $8,803.56, or anything approximating either. This exception seems to be entirely without merit, but even if such were not the case, the exception is too general, indefinite and uncertain to be considered by the Court. McCarty v. Chalfant, 14 W. Va. 531; Chapman v. R. R. Co. 18 Id. 185. The court, in its decree, assigns as a reason for adopting statement “ E ” of the commissioner’s report the fact that it was made in conformity with an exception filed by the defendants to a former report. It having been made, therefore, at the instance of the appellant, he is not in a situation to complain of it; and moreover, the commissioner adopted it as the correct statement, and not being excepted to it can not be set aside by this Court unless it is plainly erroneous on its face. Ward v. Ward, 21 W. Va. 262; Thompson v. Catlett, 24 Id. 524. — 740 — The report shows that the money received from time to time by the plaintiff as the proceeds of lots sold was generally in small sums and that he was constantly disbursing parts of it for expenses of the company. It was, therefore, necessary to fix some period for striking balances and applying the net proceeds to the liquidation ot the plaintiff’s debt. To do so annually was certainly not to the prejudice of the appellant. I am of opinion that said statement was as nearly just to all the parties as it could be made under all the circumstances. It is asserted that compound interest was charged in this statement. But upon an examination of the same it appears that where the proceeds credited in any year did not pay the interest up to the date of such credit, interest has been charged on the principal only of the debt according to the rule announced by this Court in Hurst v. Hite, 20 W. Va. 183, and Ward v. Ward, 21 Id. 262. It is further contended that the decree of December 5, 1881, is erroneous because it gives a personal decree against the purchasers for the balance of the purchase-money without waiting for the collection of the $883.88, due from the purchasers of the land and lots sold and the $700.00 due to the company, as reported by the commissioner, and crediting so ranch of said collections as may be found applicable thereto on the debt due the plaintiff. By the terms of the agreement of October 23, 1874, the appellant and his co-purchasers agreed and bound themselves to pay the bonds due the plaintiff as they should become due. This they did also by the bonds themselves. It is clear then that the plaintiff might have sued at law and recovered a personal judgment for the balance due on the bonds. It can not therefore be seriously contended that because he has sued in equity he has not the same right. All the bonds were long past due and the plaintiff was clearly entitled to a personal decree. The uncollected assets when realized will of course belong to the parties according to their respective rights and the appellant, if he chooses, may apply his portion in satisfaction of the plaintiff’s decree against him if he shall not have paid said decree off before such assets are collected. Fisher v. Brown, 24 W. Va. 713. I have now considered all the questions presented by the — 741 — record which are of sufficient importance to require notice, and having found no error to the prejudice of the appellant the decree complained of must be affirmed. AFFIRMED.