Kane v. Mann

Cardwell, J., delivered the opinion of the court. This is an appeal from the Circuit Court of Scott county, and the case presented is as follows: J. H. Hicks, in the name of his assignor, H. S. Kane, on his own behalf and such other lien creditors of John A. Mann as might become parties to the suit on the usual terms, filed his bill to enforce the payment of a judgment obtained by the plaintiff against the defendant in the Circuit Court of Scott county for $1,600, with interest and costs. The bill alleged that the defendant was seised and possessed of a valuable lot, with improvements thereon, situated in the town of Gate City, Scott county, conveyed to him by H. S. Kane; that the judgment had been duly docketed, and was due and unpaid; that the rents and profits of this property would not in five years satisfy the judgment liens upon it; and that the plaintiff was entitled to have the lot sold to satisfy his own and the other liens thereon. The prayer of the bill was that a commissioner of the court be directed to ascertain the liens on the property described in the bill, and their priorities; that the court decree a sale of the property to satisfy the plaintiff’s judgment, and grant him general relief, &c. The defendant, at the November term of the court, 1893, filed his answer, in which he admitted that he owed the debt in the bill mentioned and a few other liens, and alleged that, while he owned the house and lot as in the bill mentioned, he also owned other valuable property in Scott county, and — 244 — in Wise county, Virginia, and that his real estate would rent for a sufficient sum in five years to pay all of his indebtedness, &c. The cause was referred to a commissioner “ to take and state an account showing the liens and their priorities against the land in the bill mentioned; also whether or not this property would rent for a sufficient sum in five years to pay the indebtedness of the defendant.” The commissioner made report to the March term, 1894, stating the liens on the property in their order of priority, viz.: first, a judgment in favor of H. S. Kane, in his own right, for 4,000, with interest and costs, subject to certain credits named; and second, judgment in favor of said IT. S. Kane, for the benefit of J. F. Hicks (the plaintiff), for $1,600, with interest and costs, and that these judgments were obtained on bonds executed for the purchase price of the property in the bill mentioned, and a vendor’s lien retained for same in the deed of conveyance. He also reported that, upon the testimony of one witness, S. R Mann, the lands of the defendant would discharge the liens reported in five years. From the deposition of the witness, S. R Mann, it appears that the estimate made by the commissioner of the rental value of the defendant’s property included the rental value of property situated in both-Scott and Wise counties, and it turned out afterwards that part of this property belonged to the defendant’s wife, and not to him. The plaintiff excepted to this report on the ground that, in ascertaining the rental value of the defendant’s lands, the commissioner considered and reported the rental value of lands owned by the defendant lying in Wise county, of which the court should not take jurisdiction. This exception was properly overruled. The decree of the court, then made, confirmed the report of the commissioner, and directed the lands in the bill and report mentioned to be rented out for a period not exceed^ ing five years to satisfy the liens reported, costs, &c., but at the same term of the court, upon the petition of H. S. Kane, — 245 — this decree was set aside for errors apparent on the face of the report of the commissioner, and the report recommitted to him to be corrected and revised, and to report any other matter deemed pertinent, or required by either party. On May 10,1894, H. S. Kane, in his own right, filed in the clerk’s office of the Circuit Court of Scott county his petition setting forth his judgment lien on the property of the defendant, J. A. Mann, mentioned in the bill in this cause; that his judgment was obtained (as reported by the commissioner) on a bond executed to him by the defendant for the balance of the purchase money due on the property described in the plaintiff’s bill, and that the $1,600 assigned to Hicks, and on which this suit was brought, is a part; that a vendor’s lien was retained on the face of the deed from petitioner to the defendant to secure the payment of the balance of the purchase money, and this deed of conveyance is made a part of the petition. The prayer of this petition is that petitioner be admitted as a party plaintiff to this suit; that John A. Mann, the defendant to the original bill, be made party defendant to the petition; that a decree of sale of the lot of land in the bill of complaint and the petition mentioned and described, situated in Gate City, Scott county (upon which plaintiff and petitioner have both a judgment and vendor’s lien) be sold, and that such other and further relief be afforded petitioner as might seem just and the case, require; that process issue, &c. Process was issued and duly served on the defendant, Mann, and the cause matured for hearing on the petition and exceptions of defendant to the filing of the petition. In the meantime Commissioner Edmonds filed his corrected report, setting forth correctly the amounts due on the respective liens reported by him in his former report, and repeated his former statement that these liens were secured by a vendor’s lien reserved on the property sought to be — 246 — subjected to their payment, and the report concludes with the statement that “.From the agreement between J. A. Mann and his wife, filed herewith, which is recorded, and depositions filed herewith, your commissioner thinks that all the lands of J. A. Mann would rent for a sum sufficient to discharge said liens in five years,” &c. The agreement referred to is an agreement between J, A. Mann and Julia Mann, his wife, entered into May 22, 1894, in which the latter, in consideration of love and affection, agrees that her interest in the lands in Wise county, for the purpose of paying her husband’s indebtedness, might be rented in this suit of “ H. S. Kane for himself and J. H. Hicks v. J. A. Mann,” and the agreement, which is signed by her and acknowledged before a notary, but not recorded, purports to transfer the land to her husband. The decree appealed from brought the cause on to be heard “ upon the papers formerly read, the petition of H. S. Kane properly filed and matured, and the report of the commissioner, E. M. Edmonds,” and proceeded to confirm the report in all things, and to decree that H. S. Kane, in his own right, recover of the defendant, J. A. Mann, the amount of the debt and costs reported in his favor by the commissioner; that he recover the debt and costs also reported in his favor for the benefit of J. IT. Hicks; and that the commissioner of the court appointed for the purpose proceed to rent out for the shortest period, not exceeding five years, that would satisfy the liens reported, costs of suit, and of renting, the lands of the defendant in the bill and report of Commissioner Edmonds mentioned, and which included the lands of Mrs. Mann, the wife. Section 3571 of the Code provides: “If it appear to the court that the rents and profits of the real estate subject to the lien will not satisfy the judgment in five years, the court may decree the said estate, or any part thereof, to be sold ❖ ft * yy — 247 — It is difficult to perceive how this statute, which is the only authority for renting out real estate of the judgment debtor, can be construed so as to authorize the renting of the real estate of Mrs. Mann, the wife, to satisfy the liens on her husband’s property asserted in this suit. She was not a party to the suit, and the liens asserted were in no sense a lien upon her real estate, and could not be made so by the agreement between her and her husband. But upon another ground the decree of the lower court is erroneous. This was a suit on behalf of the plaintiff and all other lien creditors of the defendant, J. A..Mann, who would make themselves parties upon the usual terms, and the petitioner, H. S. Kane, had a right to file his petition and become a party plaintiff in the cause, for the purpose of enforcing his lien upon the property sought to be subjected to the lien asserted by the plaintiff. There was no valid reason for his being driven to a separate suit, against the policy of the law to avoid multiplicity of actions. 1 Bart. Ghan. Pr. 341-2; Belton v. Apperson, 26 Gratt. 207. At all events, the petition of Kane in his own right was brought on by the decree as properly filed and matured; and this was equivalent to leave of the court to file it, and in effect overruled, and properly, we think, the objection of the defendant to its being filed. The petition sets out fully the lien of petitioner’s judgment on the property of the defendant, and also the vendor’s lien, to secure the debt upon which the judgment was obtained. And even if the original bill did not make a case upon which the vendor’s lien could have been enforced, which is by no means conceded, the petition of Kane in his own right, supported by the report of the commissioner in the cause, did, and the court having taken jurisdiction, it should have done complete justice between the parties and given full relief. It is well settled that where a court of equity has once acquired jurisdiction of a cause on equitable grounds, it may go on to complete adjudication, even to — 248 — establishing legal rights and granting legal remedies that would otherwise be beyond the scope of its authority. Beecher v. Lewis, 84 Va. 630; and Walters v. Bank, 76 Va. 12. The taking of a judgment at law does not abrogate or defeat a vendor’s lien to secure the debt. 2 Jones on Liens, (2d ed.), sec. 1098; Coles v. Withers et als., 33 Gratt. 186; Armentrout’s Exo’r v. Gibbons, 30 Gratt. 632. In the last named case this court held that such a lien constituted a specific charge upon the land as valid and effectual as a deed of trust or mortgage, and in the case of Smith v. Henkel et als., 81 Va. 524, it was held that the enforcement in equity of a retained vendor’s lien is a matter of right. See also Ayers v. Robbins, 30 Gratt. 115. The decree of the Circuit Court will be reversed and annulled, and the cause remanded for further proceedings to be had therein in accordance with this opinion. Reversed.