Henning v. Fisher

6 W. Va. 238, 1873 W. Va. LEXIS 30

Opinion

Moore, Judge.

On the 17th day of May, 1871, Thomas A. Henning filed his bill with injunction, before the Circuit Court of Greenbrier County, against William Fisher, Samuel Kincaid and Henry W. Moss, with exhibits, alleging that at the April term of said Court, on the law side, a. judgment was rendered against him upon two bonds in favor of Henry W. Moss, for §660.35, with interest thereon, from the 18th day of April, 1871, until paid, and costs of suit,'amounting to $17.13; that the bonds were given in part for a house and lot in the town of Lewisburg purchased by him from William Fisher, who purchased of Samnel Kincaid; that Kincaid executed a deed, therefor, to said Fisher, dated March 16th, 1863, whiclfiwas Rot recorded, according to law, until the 16th November, 1871, when it was acknowledged and recorded; that it was “true the deed was spread upon record hy an officer professing to he the Qlerlc of the County Court, of Greenbrier, on the day of its date; but he was not such officer. lie had ceased io be such when the State seceded, or attempted to secede from the Union in the year 1861. So the deed toas void, * * * * against creditors and purchasers without notice.” That in the meantime, judgments were rendered against said Kin-caid, “and were registered with the Clerk of the County Court, and with the Recorder of said County,” (a list of which judgments was filed with said bill.) He further alleged, that at the time he executed said bonds, he was ignorant of the existence of said judgments, and liens against the property; and that before he could “be safe in paying off the judgment aforesaid,” those “anterior liens resting upon theprop'erty mustbepaid off.” He filed, as an exhibit,a copy of the agreement between him and said Fisher, whereby, he alleged, “it will appear, that upon the payment of the purchase money, said Fisher is to make your orator adeed for the property, with covenants of general warranty,” that as yet he had made no deed, “and if he were, to make one of general warranty he is not, as your orator is advised and charges, responsible, and is the resident of another State; ” that the clause, at the end of the agreement, showed, that $1,000 of the purchase money was to be paid to said Moss, for which, he, the Plaintiff, at the request of said Fisher, had executed his bonds to said Moss; but if he should pay said sum, without the payment of said judgments against Kincaid, he would be in great danger of losing it altogether; that for some of said judgments, Kin-caid had given security; but if the security should have to pay the debt, he might be entitled to the rights of the judgment creditor.” The Plaintiff then charged that Moss stood in the shoes of Fisher; that the bonds, on w'hich the judgment was rendered, were given for so much of the purchase money of the property, and were subject to all equities growing out of the contract.

He, therefore, prayed that the judgment be enjoined, and the collection thereof be inhibited; that the purchase money be applied to the extinguishment of said liens, or the contract, between him and Fisher, be set aside and annulled; and for general relief.

The Defendants separately demurred and answered > and the Plaintiff replied generally, the depositions of Henning and Kincaid were also taken.

On the 19th day of December, 1871, the Court hearing the cause upon the bill, exhibits, answers, and general replications thereto, depositions and arguments of Counsel, refused to dissolve the injunction, being of opinion that further indemnity should be given to the Plaintiff before the injunction could be dissolved.

From this decree the Defendants have appealed.

The first question with which we are met, is: Was the deed, from Kincaid to Fisher, duly recorded on the 16th day of March 1863?

It is argued by the Appellee, and alleged in the bill, that the deed was not recorded according to law, until the 16th day of November, 1870, when it was so acknowledged and recorded; that it was true the deed was spread upon the record by an officer professing to be the Clerk of the County Court, of Greenbrier, on the day of its date; but he was not such officer; that he had ceased to be such when the State of Virginia seceded or attempted to secede from the Union in the year 1861, and that the deed was consequently, void as to creditors and purchsers without notice. The answers of Kincaid and Fisher affirm that it was, at that-time, 16th day of March, 1863 admitted to record in the County Clerk's office, of Greenbrier County.

Whatever may have been the ruling heretofore, in this Stale, it must now be decided, upon the authority of the Supreme Court of the United States, in Texas vs. White, 7 Wallace, 733. Thorington vs. Smith, 8 Wallace, 1: and the Supreme Court of Virginia, in Griffin vs. Cunningham, 20 Gratt. 31: and of the Supreme Court of Tennessee, in Sherfy vs. Argenbright, 1 Hieskill, 128, followed by this Court, in the case of Matthew Harrison, Ex'r., vs. Farmer's Bank of Virginia, decided this term, that whether the Government, under which the Clerk acted, at the time he recorded the deed'“was a Government defacto oí paramount force, or an actual though unlawful Government;, the acts of its officers, when not directly in aid of the war power, must be regarded as valid.” For, as stated by Chief Justice Chase, in Texas vs. White, “Acts necessary to peace and good order among citizens, such for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance and transfer of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emi-nating from a lawful government; must be regarded in general as valid when proceeding from an actual; though unlawful government.” It is an historical fact, that the recognized lawful State Government, at the time, had its Capital at the City of Wheeling. It had its troops in the field, aiding the Federal forces, to maintain, not only the Federal, but its own authority over its territory; but, nevertheless, the Confederate troops held the County of Greenbrieifby paramount force, and thus maintained over it the State organization and authority which adheared to the Confederate cause and held its Capital at Eichmond. However much the citizens of Greenbrier might have desired to organize under the “Eestored State Government,” they could not then do so, because of the paramount force of the State Government at Eichmond; and although that Government was declared to be an unlawful Government, it was, nevertheless, an actual Government, of paramount force at that time, and the acts of its officers, whether State or County, not directly in aid, or furtherence of the war —power must be declared, under the .authorities cited, valid. Therefore the recordation of the deed, made in 1863, •was valid, and must be so recognized in all judicial proceedings. Consequently judgments rendered against Kincaid, or docketed subsequent to the recordation oí the deed of March 16th, 1863, cannot be a lien upon the land. The judgments of Joseph Feamster, having been docketed prior to that time, were liens upon said land. And if they continued as liens, at the time Plaintiff purchased the property, he cannot complain now, so far as Moss is concerned; because the judgments' being docketed were notice of the existing liens. Therefore, having, at least, constructive notice of the Feam-ster liens, at the time he executed and delivered the bonds to Moss; as his, without condition, and thus induced Moss to change his position by surrendering to Fisher, and cancelling, certain bonds secured, which Fisher had made and delivered to Moss for money loaned to him by Moss, and to release the lien which he held to indemnify him, surely the Plaintiff does not now come into equity with clean hands. It was none of Moss's concern what was the arrangement made between the Plaintiff and his vendor, Fisher. If Henning delivered to Moss the bonds without coudition, and thereby induced Moss to cancel and surrender to Fisher the bonds, which he held against Fisher, and release the security, Henning is bound by it, because the surrender of the Fisher bond, and release of the security thereof, by Moss, at the instance of Henning, was a sufficient consideration for the Henning bonds; if viewed otherwise, it would be sanctioning injustice, and a possibility of loss to Moss by the deliberate act of Henning, and that, too, when Moss was not in fault, which equity will not sanction.

Whatever rights the Plaintiff may have against Fisher and Kincaid as to compelling the judgment creditors Feamster, to first exhaust his liens on the other real estate of Kincaid, or seeking other means of paying off the liens, he has none against Moss.

I am therefore of opinion that the decree appealed from is erroneous, and must be reversed, the injuncti on dissolved, and the bill dismissed, as to Moss, with costs to the Appellants, in this Court, and that Moss recover his costs in the Court below, against the Appellee Hen-ning ; and the cause must be remanded to the Circuit Court of Greenbrier County, for further proceedings to be had therein as to all the parties except Moss.

JIaymond, President, and Paull and Hoffman, Judges, concur in the foregoing opinion.