Bruff v. Thompson

Snyder, Judge: Bruff, Faulkner & Co., on March 16,1883, filed their bill in the Circuit Court of Barbour county against Helen M. Thompson and others, alleging therein that the said Helen M. Thompson was a married woman, the wife of John P. Thompson ; that she was indebted to them by note to the amount of over $800.00; that she was the owner of certain real estate in the town of Philippi, which was incumbered by vendor’s and trust liens for a considerable sum of money; that she was also the owner of a stock of merchandise and other personal property, upon which they allege their said debt is a charge, as well as upon the rents and profits of said real estate; that the said John P. Thompson, her husband, is insolvent; that she owns all said property as her separate estate; and that she is engaged in selling and converting said merchandise, and other personal property, into money, and, unless the same is taken into the custody of the court, the said property or its proceeds will be placed beyond the reach of their demand before the same can be subjected, by ordinary legal process, to the satisfaction of said demand. They pray that the sheriff may be required to take possession of said personal estate, their debt declared to be a charge upon the rents and profits of the real estate, and that their debt may be paid, etc. At February rules, 1885, the plaintiffs filed an amended bill, in which they allege that, after they had acquired a lien on the aforesaid personal property by filing their original bill, the defendants, J. N. B. Crim and James E. Heatherly, with full knowledge of the plaintiffs’ lien, purchased said property from their debtor, the said Helen M. Thompson ; — 18 — that the value of the property so purchased by 0rim was $607.00, and of that purchased by Heatherly was $400.00. They, therefore, in addition to the relief asked in the original bill, pray for decrees against said Crim and Heatherly, respectively, for the said sums of money. The defendants, Crim and Heatherly, answered. The former admits that in February, 1888, he purchased of Mrs. Thompson goods of the value of $407.00, which were delivered to and paid for by him, and that he agreed to purchase other goods of the value of $200.00, which were never paid for or delivered to him; but he positively denies thathehad any knowledge or notice of the pendency of the plaintiffs’ suit, or of any lien on the property, at the time of his said purchase. The defendant, Heatherly, admits that in July, 1883, he purchased of Mrs. Thompson goods of the value of $200.00, and paid for the same, but only a part thereof, worth about $85.00, ever came into his possession, — the residue having remained in the possession of Mrs. Thompson; and he avers that his purchase was in good faith, without any notice of the pendency .of theplaintiffs’ suit, or any lien on the said goods. The proofs fully sustain the allegations of these answers, except that the evidence is contradictory as to whether or not Crim had notice of the pendency of the plaintiffs’ suit at the time he purchased said goods from Mrs. Thompson. On October 22,1886, the court entered a decree, in which, after reciting that it appeared to the satisfaction of the court that Grim and Heatherly purchased said goods after the filing of the plaintiffs’ original bill, and that the plaintiffs, by filing said bill, acquired a lien as of that date on the said property, it ordered and decreed that the said Orim do pay to the plaintiffs the sum of $736.62, being the said $607.00 and its accrued interest, and that the said Heatherly do pay to the plaintiffs the sum of $240.16, being the aforesaid $200.00 with its accrued interest. From this decree the said Crim and Heatherly obtained this appeal and supersedeas. The important question presented on this appeal is : Did the plaintiffs, by the mere institution of their suit, acquire such a charge or lien upon the personal property of their debtor, Mrs. Thompson, as to make said property or its value liable for their debt in the hands of a — 19 — subsequent purchaser for value, either with or without notice of the pendency of the plaintiffs’ suit? It is not alleged or pretended that there was any seizure, or attempt to take possession, of the property by the plaintiffs, under legal process or otherwise, or that there was any levy made upon it, or inventory taken of it, by any one. The plaintiffs, in order to maintain the position that their simple contract debt became a lien upon the property of a married woman at the time of filing their bill, claim that their suit is in the nature of a proceeding in rent; and, in support thereof, they cite and rely upon the decisions of this Court in the cases of Hughes v. Hamilton, 19 W. Va. 336, and Howe v. Stortz, 21 W. Va. 555. In neither of those cases was any question raised or considered by the court between creditors of the married woman and the purchasers of property from her after the institution of the suit. The portions of the opinions in those cases which are relied on here related simply and wholly to the question of priority among the creditors themselves; and in the latter of these cases it was decided that the debt of a general creditor of a married womam does not constitute a lien or charge upon her separate estate prior to the institution of the suit by such creditor; while in the former case it was decided that, in such suits, general creditors will be allowed prioiity of payment out of such separate estate between each other, according to the time or times of bringing their suits or filing their petitions to subject such property. It is true, in this case, the debt is called a quasi lien upon the separate estate; and Haymond, Judge, in the opinion of the Court, says : “This proceeding in equity to subject the separate estate of a feme covert to the payment of her just debts must, I think, necessarily be considered in the nature of a proceeding in rem ; and there is surely little difference in its nature between such proceeding and a proceeding by bill in equity against a non-resident debtor to subject, his estate in this State to the payment of a debt when no attachment is sued out in the case. * * * In such proceeding, perhaps, all rights acquired from or under'the feme covert to the separate property, sought to be subjected in this suit to the payment of the debt, pending the suit, are subject to any decree — 20 — which may be made in the suit, except so far as a purchaser may be protected by section 14, ch. 139, of the Code, as amended by chapter 68 of the Acts of 1877. In all other respects the maxim, pendente lite nihil innovetur, applies citing Cirode v. Buchanan, 22 Gratt. 205; and Hughes v. Hamilton, 19 W. Va. 392. The case here cited from 22 Gratt. was a foreign attachment suit to subject real estate of a non-resident debtor to the payment of the plaintiff’s debt. Long after the suit had been instituted, the debtor became a bankrupt, and his assignee made himself a party to the suit, and, the land having been sold, claimed the proceeds. The court held : “The bill stating a good case for an attachment suit, the affidavit required by the statute may be made at any time before another obtains a right, and the indorsement on the subpoena is not necessary to render his attachment valid and therefore the plaintiff was entitled to the proceeds of the land as against the assignee in bankruptcy. In the conclusion of the opinion, the court says “that, the said debtor having become a bankrupt long after the institution and duiing the pendency of the suit, his assignee in bankruptcy can stand on no higher ground in regard to said suit, and the claim asserted therein, than the bankrupt himself, but stands in his shoes, and is entitled only to his rights.” 22 Gratt. 223. It is apparent that this case gives no countenance to the claim that personal property of- a married woman, sold to a third person during the pendency of a suit to charge it with a debt, is subject to the debt of the plaintiff. No such question was raised or discussed either in this case or the case of Hughes v. Hamilton, supra. The statute referred to by Judge Haymond (section 14, ch. 139, Code; chapter 68, Acts 1877) provides that the pendency of any action, suit, attachment, or proceeding to subject real estate to the payment of any debt, “shall not bind or affect the purchaser of such real estate unless” his lis pendens is docketed, etc. It is immaterial, under this statute, whether the purchasers has actual notice or not of the pendency of the suit; for it declares that the suit shall not affect any purchaser, — not simply a purchaser without notice, — unless a lis pendens is docketed. If — 21 — such is the rule as to real estate, a fortiori it should not affect a purchaser of personal property in a case like this. The doctrine of lis pendens is harsh in its effect upon purchasers, and has always been confined in its operations to the necessities of the policy on which it is founded, and it is applied only to proceedings directly relating to the thing' or property in question. It will not apply to an action of debt-brought to ultimately charge land for its payment. White v. Perry, 14 W. Va. 66. The application of the doctrine seems to have been confined at common law to actions for the recovery of specific chattels, as in detinue, etc.; and in equity to suits brought to directly charge real estate. 1 doubt whether it now applies in any case in this State except to those in which our statute requires the Us pendens to be docketed. In ordinary actions at law for the recovery of a debt or damages, the plaintiff can obtain no lien on the personal estate of his debtor until his claim has been reduced to judgment, and an execution issued thereon, which is placed in the hands of an officer for levy. I can discover no reason or policy for making a suit against a feme covert to recover a debt an exception to this general rule. In the q&se at bar the property is not specifically described or identified; per sequence, if the claim of the plaintiffs is allowed, the feme can not sell a pin or a chicken, however small may be the debt of the plaintiffs or large her estate. Such a construction of the law would virtually destroy all the rights of that class of persons -which the legislative policy of this State recognizes and protects. It is claimed, however, that this is a proceeding in rem. If so, then the plaintiffs, according to the law governing such proceedings, have failed to do the very thing which would give them a lien on the property. The jurisdictional fact in such proceeding is the seizure and taking possession of the rem or property. That has not been attempted here, and therefore the plaintiffs not only have acquired no lien on the property, but they have acquired no jurisdiction over it. Windsor v. Mc Veigh, 93 U. S. 274. But the plaintiffs contend that they have a lien on the feme’s property by reason of the analogy of this proceeding to a suit by foreign'attachment, and, in support of this con — 22 — tention, rely upon certain expressions in the opinion in Hughes v. Hamilton, and especially the expression that this must “be considered in the nature of a proceeding in rem,” and analogous to a “proceeding by a bill in equity against a non-resident debtor to subject his estate in this State to the payment of a debt, when no attachment is sued out in the case.” 19 W. Va. 394. I can not understand what is meant by the concluding portion of this quotation; for I am sure that there is no proceeding in this State by which the estate of a non-resident debtor can be subjected to a debt, under any circumstances, “when no attachment has been sued out in the case.” The judge who used that language .was evidently misled by the opinion of the Court in Cirode v. Buchanan, 22 Gratt. 205. The opinion in that case, in some respects at least, contains very questionable law, as appears from the opinion of this Court in Chapman v. Railroad Co., 26 W. Va. 299, 321. But, admitting the correctness of the conclusion in Cirode v. Buchanan, it furnishes no foundation 1'or the statement that there can be a suit to subject the estate of a non-resident without suing out an attachment. It was held in that case that there was a valid attachment. The proceeding- by attachment is wholly statutory. It had no existence at the common law, and consequently any lien acquked by it can only be such as is directly conferred by the statute strictly construed. Our attachment law is found in the provisions of chapter 106, Code. It is there provided that the plaintiff can acquire a lien on the personal property of his debtor only by the levy of' his attachment thereon, section 9, ch. 106, Code. In the case before us there was not only no levy upon the estate of Mrs. Thompson, but there was no seizure of it, or process of any kind issued against it; so it is clear that the analogy between the proceeding here and that by attachment, in respect to the lien contended for by the appellees, has no existence whatever. It is elementary law that either in proceedings technically in rem, or in those in the nature of proceedings in rem, such as by attachment, etc., the plaintiff can acquire no lien upon the personal property against which the proceeding is taken unless there is a seizure or levy upon such property. — 23 — Without pursuing the subject further, my conclusion is that, in a proceeding in equity to subject the personal estate of a feme covert to the payment of a debt, in which the property is not seized, levied upon, or otherwise taken into custody, the plaintiff does not acquire any specific lien upon such property. Certainly, he acquires no such lien simply by the institution of his suit. This fact seems to be recognized in the frame of the bill in this suit, because the prayer is, unless the feme debtor, or some one for her, shall give bond to answer the decree of the court, that the sheriff be required to take possession of the property sufficient to satisfy the plaintiffs’ demand. If this had been done, or, perhaps better, if the plaintiffs had obtained an injunction, and had the property put in the hands of a l-eceiver, there can be little doubt that the proceedings would have been sustained, and the plaintiffs’ suit thus made effectual. Lillia v. Airey, 1 Ves. Jr. 277; Todd v. Lee, 15 Wis. 384; Church v. Jaques, 1 Johns. Ch. 450. But this was not done in this case. It seems to me clear that until the plaintiff, in a suit of this character, in the manner suggested, takes the pi-operty out of the possession of the feme, or acquires a lien upon it in some of the modes recognized by law, a purchaser thereof, for value and without fraud, will not be liable to the plaintiff for the property so purchased, or its value, whether he had or had not notice of the pendency of the suit at the time of his purchase. For the foregoing reasons, I am of opinion that so much of the aforesaid deci'ee of October 22,1886, as requires the appellant, Crim, to pay to the plaintiff $736.62, and the appellant, Heatherly, to pay to them $240.16, and all portions of said decree affecting the appellants in any manner, must be reversed.