Green, Judge,
announced the opinion of the Court:
The first error committed in this cause was in the awarding of the injunction by the judge in vacation on December 6, 1867. The bill sought to enjoin the collection by the sheriff or the parties of an execution against the plaintiffs on a certain judgment, on which a former execution had issued; and in it the plaintiffs allege, that “the whole amount of the judgment and former execution, interest and costs have been long since paid by your orators to said Taylor” (the sheriff) “and that said Lambert” (the plaintiff in the former execution) “has been paid by said Taylor.” If this were the fact, it is obvious, that a court of equity had no jurisdiction to award an injunction, as the complainants show on the face of their bill, that they had a simple summary and adequate remedy at law. If the execution was thus paid, they had but to move to quash it, and the court of law could have been in no manner embarrassed in affording at once the most adequate remedy by at once quashing the execution.
It may however be said, that though this allegation was made in the bill, yet taking it altogether the court might regard, that the case stated in the bill really was, that the sheriff knowing himself to be indebted to one of the defendants, Hall, in a large amount exceeding the amount of the execution of his own accord and without the request of the defendant, Hall, paid off this execution to the plaintiff in the execution and judgment, and then the execution sought to be enjoined “had been sued out at the special instance and request of Taylor” (the sheriff) “without the consent or knowledge of Lambert” (the plaintiff in the execution).
On this state of facts it is equally clear, that a court of law would on motion of the defendant. Hall, have at once quashed [554]*554the execution ; for by making the motion to quash the execution, because the judgment had been paid, he would have approved and confirmed the unauthorized payment of it by the sheriff, and this would have made the case precisely the same, as if it had been paid by the sheriff at the request of Hall. This was so expressly determined by this Court in Neeley et al v. Jones et al., 16 W. Va. 625. It was there decided, syllabus 3 : “The debtor may by pleading or relying on the payment of a stranger ratify it; and such ratification, being the equivalent of a previous request, the debtor will be thereby discharged.” And by syllabus 6 it appears, as it does still more fully in the opinion of the Court, that a payment of an execution or judgment by a sheriff, who has had an execution in his hand, without any request of the defendant in the execution will have precisely the same effect, as if paid by a stranger without request, where the rights of third persons do not intervene.
No motion in this case was made to dissolve the injunction, which had been improvidently awarded; and no demurrer was filed to the bill; but there being no equity in the bill, the court of its own accord on the. final hearing of the cause ought to have dissolved the injunction and dismissed the bill at the cost of the complainants. But it may be said that an opportunity should have been afforded the complainants to amend their bill, before it was finally dismissed because of defects on the face of the bill, which would have rendered it liable to'be dismissed on general demurrer. This would certainly have been the case, had the proceedings and evidence in the cause shown, that the plaintiffs really had a good case for the interposition of a court of equity, had they but stated it properly in their bill; but so^far from this appearing in the cause, the evidence established beyond controversy, that when Taylor, the sheriff, paid off to the plintiff, Lambert, his judgment, there was an express understanding and agreement, that he should have the benefit of this judgment. The defendants in their first, exception to the commissioner’s report copied in the statement of this cause admit, that this was proven in the cause. It was expressly decided by this Court in Neely et al. v. Jones et al., 16 W. Va. 625, that if a sheriff or stranger pays a debt or judgment to a creditor, and when he pays it, [555]*555there is an agreement between the creditor and him, that he will assign the debt or give him the benefit of the judgment, though no actual assignment is made to the sheriff or stranger, he will be regarded as the equitable assignee of the debt, and the transaction will be considered the equivalent to the purchase of the judgment or debt, with perhaps an exception in some cases, where the sheriff is the purchaser, and the rights of third parties intervene. See 16 W. Va., p. 625, syllabus 5 and 6, arid opinion, pp. 641 and 642.
No rights of third persons in this cause intervene, and on the evidence in this cause there can on this authority be no question, that Taylor, when he paid oft this judgment to Lambert, became the equitable owner of the judgment and had a right to enforce it by execution or otherwise. So that the only difference between the case stated in the bill and the one proven is, that the case stated in the bill showed, that the enforcement of this execution could only be stopped in a court of law by motions to quash, and could not be enjoined in equity; while the case proven showed, that the enforcement of the execution could not be stopped in law on a motion to quash, because the judgment was paid, nor be enjoined in equity. The court therefore ought to have dissolved the injunction and dismissed the bill without giving the plaintiffs leave to amend, as the evidence showed, that by no amendment of the bill could they make a case, in which a court of equity would grant relief.
The case of Crawford v. Thurmond et al., 3 Leigh 85, is re ferred to as showing, that a court of equity may grant relief in some cases by injunction, though a court of law might on motion quash the execution. This is true, for instance, in the case in 3 Leigh, where s^he motion at law would not furnish as safe and convenient a tribunal for the trial of the particular disputed questions involved in the cash, as a court of equity would on regular pleadings and proofs. See Judge Carr’s opinion in said case, 3 Leigh 88. In such a case the fact, that the real plaintiff in the execution is but an equitable owner of it, may be entitled to some consideration in the determination of the question, whether a court of equity can entertain jurisdiction of the case; but it seems to me obvious, that if this be the only ground, on which the interposition of [556]*556a court of equity is asked, it will be insufficient ; for it is every day practice, that judgments are rendered in the name of one person for the use of another, and the courts of common law take notice of the person, for whose use the judgment is, in enforcing the same.
It seems obvious, from what has been said, that the circuit court erred in having the voluminous and complicated accounts between the sheriff, Taylor, the real owner by purchase of the execution, the collection of which is sought to be enjoined in this cause, and the defendants in the execution, Hall and Patton,, severally, as well as the accounts between these defendants jointly and Taylor, settled and determined, and in rendering a decree in favor of Taylor based on these settlements. The object of the suit was in no degree to settle any such accounts. There was not in the bill any allegation, that any such accounts existed.
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Green, Judge,
announced the opinion of the Court:
The first error committed in this cause was in the awarding of the injunction by the judge in vacation on December 6, 1867. The bill sought to enjoin the collection by the sheriff or the parties of an execution against the plaintiffs on a certain judgment, on which a former execution had issued; and in it the plaintiffs allege, that “the whole amount of the judgment and former execution, interest and costs have been long since paid by your orators to said Taylor” (the sheriff) “and that said Lambert” (the plaintiff in the former execution) “has been paid by said Taylor.” If this were the fact, it is obvious, that a court of equity had no jurisdiction to award an injunction, as the complainants show on the face of their bill, that they had a simple summary and adequate remedy at law. If the execution was thus paid, they had but to move to quash it, and the court of law could have been in no manner embarrassed in affording at once the most adequate remedy by at once quashing the execution.
It may however be said, that though this allegation was made in the bill, yet taking it altogether the court might regard, that the case stated in the bill really was, that the sheriff knowing himself to be indebted to one of the defendants, Hall, in a large amount exceeding the amount of the execution of his own accord and without the request of the defendant, Hall, paid off this execution to the plaintiff in the execution and judgment, and then the execution sought to be enjoined “had been sued out at the special instance and request of Taylor” (the sheriff) “without the consent or knowledge of Lambert” (the plaintiff in the execution).
On this state of facts it is equally clear, that a court of law would on motion of the defendant. Hall, have at once quashed [554]*554the execution ; for by making the motion to quash the execution, because the judgment had been paid, he would have approved and confirmed the unauthorized payment of it by the sheriff, and this would have made the case precisely the same, as if it had been paid by the sheriff at the request of Hall. This was so expressly determined by this Court in Neeley et al v. Jones et al., 16 W. Va. 625. It was there decided, syllabus 3 : “The debtor may by pleading or relying on the payment of a stranger ratify it; and such ratification, being the equivalent of a previous request, the debtor will be thereby discharged.” And by syllabus 6 it appears, as it does still more fully in the opinion of the Court, that a payment of an execution or judgment by a sheriff, who has had an execution in his hand, without any request of the defendant in the execution will have precisely the same effect, as if paid by a stranger without request, where the rights of third persons do not intervene.
No motion in this case was made to dissolve the injunction, which had been improvidently awarded; and no demurrer was filed to the bill; but there being no equity in the bill, the court of its own accord on the. final hearing of the cause ought to have dissolved the injunction and dismissed the bill at the cost of the complainants. But it may be said that an opportunity should have been afforded the complainants to amend their bill, before it was finally dismissed because of defects on the face of the bill, which would have rendered it liable to'be dismissed on general demurrer. This would certainly have been the case, had the proceedings and evidence in the cause shown, that the plaintiffs really had a good case for the interposition of a court of equity, had they but stated it properly in their bill; but so^far from this appearing in the cause, the evidence established beyond controversy, that when Taylor, the sheriff, paid off to the plintiff, Lambert, his judgment, there was an express understanding and agreement, that he should have the benefit of this judgment. The defendants in their first, exception to the commissioner’s report copied in the statement of this cause admit, that this was proven in the cause. It was expressly decided by this Court in Neely et al. v. Jones et al., 16 W. Va. 625, that if a sheriff or stranger pays a debt or judgment to a creditor, and when he pays it, [555]*555there is an agreement between the creditor and him, that he will assign the debt or give him the benefit of the judgment, though no actual assignment is made to the sheriff or stranger, he will be regarded as the equitable assignee of the debt, and the transaction will be considered the equivalent to the purchase of the judgment or debt, with perhaps an exception in some cases, where the sheriff is the purchaser, and the rights of third parties intervene. See 16 W. Va., p. 625, syllabus 5 and 6, arid opinion, pp. 641 and 642.
No rights of third persons in this cause intervene, and on the evidence in this cause there can on this authority be no question, that Taylor, when he paid oft this judgment to Lambert, became the equitable owner of the judgment and had a right to enforce it by execution or otherwise. So that the only difference between the case stated in the bill and the one proven is, that the case stated in the bill showed, that the enforcement of this execution could only be stopped in a court of law by motions to quash, and could not be enjoined in equity; while the case proven showed, that the enforcement of the execution could not be stopped in law on a motion to quash, because the judgment was paid, nor be enjoined in equity. The court therefore ought to have dissolved the injunction and dismissed the bill without giving the plaintiffs leave to amend, as the evidence showed, that by no amendment of the bill could they make a case, in which a court of equity would grant relief.
The case of Crawford v. Thurmond et al., 3 Leigh 85, is re ferred to as showing, that a court of equity may grant relief in some cases by injunction, though a court of law might on motion quash the execution. This is true, for instance, in the case in 3 Leigh, where s^he motion at law would not furnish as safe and convenient a tribunal for the trial of the particular disputed questions involved in the cash, as a court of equity would on regular pleadings and proofs. See Judge Carr’s opinion in said case, 3 Leigh 88. In such a case the fact, that the real plaintiff in the execution is but an equitable owner of it, may be entitled to some consideration in the determination of the question, whether a court of equity can entertain jurisdiction of the case; but it seems to me obvious, that if this be the only ground, on which the interposition of [556]*556a court of equity is asked, it will be insufficient ; for it is every day practice, that judgments are rendered in the name of one person for the use of another, and the courts of common law take notice of the person, for whose use the judgment is, in enforcing the same.
It seems obvious, from what has been said, that the circuit court erred in having the voluminous and complicated accounts between the sheriff, Taylor, the real owner by purchase of the execution, the collection of which is sought to be enjoined in this cause, and the defendants in the execution, Hall and Patton,, severally, as well as the accounts between these defendants jointly and Taylor, settled and determined, and in rendering a decree in favor of Taylor based on these settlements. The object of the suit was in no degree to settle any such accounts. There was not in the bill any allegation, that any such accounts existed. On the contrary all that is said in the bill is, that the defendant, Taylor, had received certain orders on the funds of the county made in favor of one of the defendants, Hall. There is no allegation about any mutual and unsettled accounts between them ; nor is there one word said about any mutual accounts between the plaintiff, Patton, and the defendant, Taylor, or between the plaintiffs jointly and the defendant, Taylor. This allegation, that Taylor as sheriff had received certain orders of the county court in favor of the plaintiff Hall, gave the court no jurisdiction to offset them against the execution against the two plaintiffs owned by Taylor; for there was no allegation of Taylor’s insolvency, or that there was any difficulty in collecting at law any amount in Taylor’s hands as sheriff collected on these orders. Indeed it is obvious, that no such allegations could have been made ; for the sheriff and his sureties were bound for all moneys received on such county-orders, and it could have been without difficulty enforced out of them by a simple motion.
It is insisted however, that the parties went into a full and mutual settlement of all their accounts, both their several and joint accounts, furnished their vouchers and accounts, took depositions, and were heard on every branch of them, and that the orders of reference and the confirmation of the last report established beyond possibility of dispute, that the settlement of these accounts was the subject of acquiescence and consent. [557]*557I am by no means prepared to admit, that if the record had shown the consent of all the parties to the settlement of these accounts, such consent could have rendered it proper in such a case as this for the court to order such settlement and to render a decree on the result of such settlement, as the case, we have seen, was one in which a court of equity had no jurisdiction, and the settlement of these accounts was entirely foreign to the objects of the suit, as shown by the pleadings. But it is unnecessary to consider, what effect such consent would have had; for it is obvious, that no such consent was ever given by the parties. There is no pretence, that the complainants gave such consent in their bill. It is true, we may infer from the answer of the defendant, Taylor, that he was willing to enter into such settlements, but we would also infer from it, that the complainants were not willing to do so; and there is certainly nothing in the orders of the court referring the cause to the commissioner to make these settlements, from which we could infer, that the complainants consented to their being made. The first order made October 23, 1873, was:
“ The court being of opinion, that before a final decree can be properly made in this cause a settlement of the accounts and business-transactions of the plaintiffs and defendant, James Taylor, should be had, it is therefore adjudged, ordered and decreed, that this cause be and the same is hereby referred to Thomas E. Davis one of the master-commissioners of this court to ascertain, state and settle the accounts and dealings between the said plaintiffs and the said defendant, Taylor, and report the said settlement to a future term of this court.”
On this order a report was made, which on November, 24, 1874, was set aside by the court; ■“ and this cause was recommitted to said commissioner, Thomas E. Davis, with directions to execute the former order of reference in this cause and state any account the parties may desire between them.” Now these orders show clearly on their face, that they were not consented to by the parties, but were expressly based on the opinion of the court, “ that before a final decree could properly be made in this cause, a settlement of these accounts should be had.” An opinion of the court which, we have [558]*558seen, was most obviously erroneous. It is true, that under these orders the plaintiffs look steps to prove their side of these accounts, and had special statements made by the commissioner, and took numerous depositions. This of course they were compelled to do; for the court by its opinion had indicated, that if they failed to do this, a decree would be rendered against them for whatever amount the defendant, Taylor, could show he was entitled to on his statement of the account and the evidence offered by him. Surely no inference could be drawn from this conduct of the plaintiffs before the commissioner, that they acquiesced in the propriety of the settlement of these accounts. It is obvious, that the circuit court did not regard these settlements as made by the consent of parties, for in its final decree made October 26, 1877, it says: “It appearing to the court, that the parties plaintiff and the defendant, James Taylor, have mutually entered into a general settlement of their accounts, as appears by thepapers in this cause, and have submitted their said accounts to the said commissioner, who has fully and minutely investigated and reported upon the same in pursuance of the directions of this court, the court is of opinion/’ &c. This shows, that the court well understood, that these settlements were made by its commissioner pursuant to the directions of the court and not in pui’suance of any consent of the parties. It regarded these settlements as full and complete, and that all parties had entered into them and been fully heard, and doubtless it w^s correct in this conclusion ; but though this were true, yet the fact, that the parties obeyed fully the order of the court and entered fully into these settlements so ordered by the court and produced all their vouchers and took many depositions, does not in any degree tend to show, that they acquiesced in the propriety of the court’s requiring such settlements to be made and in no manner justified the court in entering up a decree based on these settlements, the making of which it ought never to have ordered.
The whole of the decree therefore of October 26, 1877, must be reversed, set aside and annulled, excepting only that portion of it, whereby it was further “adjudged, ordered and decreed, that the injunction heretofore awarded in this cause be, and the same is hereby, dissolved,” and that portion of [559]*559said decree, whereby it was decreed, “that the defendant, James Taylor, recover against the plaintiffs bis costs by him about his suit in this behalf expended.” It may be onerous on the plaintiffs to have to pay the large amount oí costs incurred in taking depositions and in settling these accounts before the commissioner, but inasmuch as they arose from no fault of the defendant, Taylor, and can be ultimately traced to their institution of this suit, when they had no grounds for so doing, they must pay these costs. The amount, to which these costs have been swollen by the improper taking of these accounts, may be judged by the fact, that the record consists of nearly three hundred manuscript pages, when it ought not to have exceeded fifteen pages. The appellants must however recover of the appellee, James Taylor, their costs expended in this Court, and the bill should be dismissed.
Judges Johnson and Haymond Conouered.
Degree Annulled in Part.
Bill Dismissed.