Moore v. Pyles

5 S.E.2d 445, 121 W. Va. 537, 1939 W. Va. LEXIS 90

Opinions

Riley, Judge:

This certificate involves the rulings of the Circuit Court of Monongalia County in sustaining a demurrer to plaintiffs’ amended bill of complaint.

Enos Moore, Simon Myers and Elimna Myers, plaintiffs in the amended bill, are three of the four creditors of the estate of Martha A. Tennant, deceased, and the defendants are the administrator of said estate and all the parties who, with the exception of the holders of several minor interests, have, as heirs at law or by assignment, obtained and hold the legal title to the real estate of which decedent died seized and intestate. The purpose of the suit is to have enforced against the defendants as a judgment lien a decree of sale, entered by the Circuit Court of Monongalia County on April 26, 1930, in a creditor’s suit (Spragg v. Tennant, etc., et als.) to subject decedent’s real estate to the payment of her debts.

On October 18, 1929, M. C. Spragg, one of the four creditors of decedent’s estate, instituted a suit in chancery on behalf of himself and all creditors of decedent against decedent’s heirs at law and their attorney in fact for the purpose of subjecting the real estate of decedent to sale for the payment of debts. In this suit reference was had to a commissisoner in chancery who completed and filed his report. By his decree of April 26, 1930, confirming the commissioner’s report, the chancellor made findings as to (1) personal property remaining in hands of the administrator; (2)" debts against the estate and their priorities; and (3) real estate owned by decedent at her death. This decree also appointed a special commissioner, prescribed the terms and manner of sale and provided that decedent’s administrator, “or her heirs at law, or someone for them, do, within 30 days from the rising of this court, pay unto” the estate’s creditors the amount of their claims with interest thereon from April 1, 1930, until paid, and court costs, “and in default of such payments, it is adjudged, ordered and decreed that said real estate be sold or so much thereof as may be necessary to pay off and discharge all of the said debts above ascertained and the costs of this suit, at public auction to the highest bidder.” Before any sale was made under this decree, George D. Tennant, one of the decedent’s heirs at law, on June 20, 1930, purchased Spragg’s rights under it, and about the same time, requested the other creditors not to direct sale, representing that the heirs at law would pay the indebtedness in full. Thereafter, Tennant made a number of partial payments. He then stated to the creditors that he was authorized to collect rents and income derived from decedent’s real estate and thereafter made additional payments in small amounts, insufficient, however, to satisfy the claims. On April 14, 1933, two of the creditors, Simon Myers and Elimna Myers, plaintiffs herein, having learned of the Spragg assignment, had themselves transposed to the role of plaintiff.

In addition to the foregoing, the amended bill of complaint further alleged that on December 16, 1933, and without notice to the plaintiffs herein, the circuit court ordered the discontinuance of the case for non-payment of costs under Code, 56-8-9; and that notice of such discontinuance did not come to plaintiffs until the expiration of the period of three court terms, the time limit for re instatement prescribed by Code, 58-8-12; that the decree of April 26, 1930, is a judgment lien against the lands belonging to decedent’s estate; that the amounts decreed to be paid remain unpaid and continue as liens upon the real estate except that said claimed liens do not attach to the undivided interest in the real estate which was conveyed to one Zola Reynolds and Ellis A. Yost. It is further alleged that abstracts of the claimed liens are recorded in the county clerk’s office of Monongalia County and that the rents, issues and profits of the real estate will not in five years pay off and discharge plaintiffs’ claimed liens.

The instant suit was brought on the theory that plaintiffs are judgment lien creditors. This appears from the amended bill of complaint in which they set themselves up as judgment lien creditors and pray for the enforcement of their claimed judgment liens against the real estate. It further appears that they are not proceeding as in a creditor’s suit for only lien creditors are joined as parties defendant, as required by Code, 38-3-10. 1 Car'lin’s Hogg’s Equity Procedure, sec. 61.

Plaintiffs assert that the decree of April 26, 1930, is a final decree; that it requires the payment of money and therefore is a money judgment; and that the discontinuance of the cause by the circuit court affects the decree only to the extent that a sale cannot be made under it. True, this decree is final in the sense that it adjudicates the principles of the cause and provides for sale of decedent’s real estate. To that extent it has finality but only in the sense that, in proper cases, an appeal may lie from it, or it may be altered in the trial court on a bill of review, or an original suit in the nature of a bill of review. Lehman et al. v. Hinton et al., 44 W. Va. 1, 29 S. E. 984; Barbour, Stedman & Herod v. Tompkins, 58 W. Va. 572, 580, 52 S. E. 707; 3 L. R. A. (N. S.) 715; Weldon v. Callison, 119 W. Va. 306, 193 S. E. 441. But that is not the case here, for plaintiffs are seeking to use the instant decree as a basis for affirmative action. ■ Their case must stand or fall on the question whether or not the decree is one for money or for real estate. Code, 38-3-1, provides “a decree for land or specific personal property and a decree or order requiring the payment of money shall have the effect of a judgment for such land, property or money, and be embraced by the word ‘judgment’ * * Clearly, this decree is not for land. The legal title in decedent’s real estate resides in her heirs at law and their assignees, and the decree does not seek to divest them of their property by the transfer of -their title to plaintiffs. It simply provides that decedent’s heirs at law or someone for them shall have the opportunity to pay the adjudged debts, and in default thereof sale of the real estate to discharge said debts will be made. It seems equally clear that the decree is not a money judgment. A money judgment is nothing more or less than the unconditional obligation to pay money. Here, the provision as to the money payment does not give rise to any obligation. On the contrary, it simply gives heirs at law an opportunity, by the payment of decedent’s debts, to prevent sale of the real estate. In Linn v. Patton, Trustee, et al., 10 W. Va. 187, this court held that in a mortgage foreclosure suit a decree providing that “unless the defendants * * * did * * * pay to the complainant $2,270, with interest * * the property should be sold, was not a decree for the payment of money and did not create a judgment lien on the lands against which foreclosure was sought. Thus it seems that this decree of April 26, 1930, failing as it does to create a lien, did not withstand the effect of the discontinuance of the cause. In Irvin v. Stover, 67 W. Va. 356, 67 S. E. 1119, 1121, it was held that, in a fraudulent conveyance suit, a decree setting aside a deed and directing a sale of the land was without effect where there was no sale under it, and the suit was dismissed on plaintiff’s motion, and “the suit * * * having been dismissed before any sale of the land under the decree, it can have no effect upon the title to the land; it is as if the suit had never been brought.” The decree here is simply a decree of sale, conditional upon the payment of money.

Where a statute provides a remedy, a party litigant is not at liberty to proceed in any other way. The orderly conduct.of litigation will not permit a departure from this rule. Shenandoah Valley Nat'l. Bank v. Hiett, et al., 121 W. Va. 454, 6 S. E. (2d) 769; Foland et ux. v. Brownfield, 73 W. Va. 270, 275, 80 S. E. 359; Handy et al. v. Scott, Baker & Co., et al., 26 W. Va. 710; Stevens, use, etc. v. Brown, 20 W. Va. 450, Pt. 1, Syl. Whatever remedy plaintiffs had was provided by Code, 56-8-12. Having failed to petition for the reinstatement of the case as provided by this section of the Code, they cannot transform this case into such a petition. To do so would be a clear departure from the aims of the instant suit, which cannot be tolerated under our well settled rules of equity practice and procedure. Having let three terms of court lapse without sufficient explanation, the elements of fraud or other sufficient grounds not being present in the record, surely plaintiffs are not entitled to reinstatement here, not even under an amendment of their pleadings. And, in the absence of fraud or wrongdoing, this court, notwithstanding its inherent jurisdictional powers to enforce its own decrees or those of trial courts, is helpless to assist these plaintiffs in their present endeavor.

In passing, it may be said that it is of little moment that the decree is personal as against the administrator. The legal title to the real estate remains in the heirs and a decree or judgment against the administrator does not effect a lien against it. Laidley v. Kline, Admrx., 8 W. Va. 218, 228.

For the foregoing reasons the decree of the Circuit Court of Monongalia County is affirmed.

Affirmed.