SHEFFEY V. BANK. OF LEWISBURG.
upon complainants, or their ancestor, the duty of investigating to see whether there was misconduct on defendant's part. The other litigation -that which affects the value of the property, in which, as averred, there l;Jas been large expenditures by defendant-was a litigation whioh llrOse after complainants had left the state, and has been carried on during ·their absence; and of which they were ignorant. Now, while it may be true tliat all this litigation, this enormous expenditure of money, this development of the pl"operty, has made it very valuable, yet that bas happened without the slightest imputation of neglect, omission, or fault on the part of the complainants; and surely that changed situation, brought about by defendant, in no way relieves him from the consequences of his own wrong-doing years before this change has taken place. It seems tome, .upon the facts as stated in the bill, it cannot be held that complainants have been guilty of any laches in bringing this suit, and I shall therefore have to differ with my Brother HALLETT in his conclusions .on the bill; conclusions reached, however, it must be noticed, when he dill not have the full detail of facts, as stl.tted in the amended 'complaint, before him. I; shall therefore overrule the demurrer to the ,bill. Defendants have 30 days to answer. The case of Moker v. Hyman et al. is kindred in its nature, and the ,same order will be entered. The demurrer will be overruled, and leave to answerin 30 days.
'D. l3ANK OF LEWISBURG
(DiBtrict Oourt, D. Weat VWginia. December 1,1887.)
88-FINAL DECREE. Equity rnle88 provides that "no rehearing shall be granted after the term at which the fina decree shall have been entered and recorded." A decree of foreclosure was entered, leaVing nothing to be done but execute its provisions. At the next term of the court a petition for rehearing was filed, and upon hearing the decree was ordered to be vacated. Held that, as it was a final decree. it was not affected by the order.
'2. DEED-REooBI>ING-P!troRITY. One G. a deed of trust to secure certain debts to the complainants, who recorded It. The same day defendants, five hours later, recorded a deed of trust on the same property from G., given them a month before. Held, that in the absence of actual notice of tlie existence of the former trust deed to the complainants, their deed of trust had the priority. 8. SAME. One G. made a trust deed to complainants for the benefit of his creditors, for v,endor's lien judgments and other paraproviding as preferred mount liens. 'Ile had given a trust deed on some of his real estate to defend· ants. who had not recorded it. Held. that it was not a paramount lien at the date of execuiion of the deed to complainants.
In Equity. Bill to restrain sale of land under a trust deed. Sheffey and Bumgardner; filed a bill against the Bank of Lewisburg and others. defendants, to restrain a sale of real estate·under a trust deed, claiming they had a prior lien on the land.
A.Qu.arrier,for plaintiffs. A. F. Mathews, for defendants.
JACKSON, J. On the eleventh day of October, 1875, Robert J. Glendy I'lxecuteda deed of trust to the Bank of Lewisburg on a tract of land in Greenbriar county, in this state, to secure to the bank a loan it had made to him of $15,000. The bank held this deed, and did not place it on record, until after another trust deed was executed by Glendy to the complainants in this cause, on the twentieth day of November, 1876, covering the same land. This deeri. was admitted to record under theJegistry laws of the state, on the twenty-first day of November, 1876, at 11 o'clock A. M ·· of that day, while the deed of the Bank of Lewisburg, the defendant in this cause, was not recorded until some five hours after, on the same day. In April, 1877, the trustee under the deed to the bankarlvertised for sale the lands described in it; but before the sale took place the complainants filed their bill in this case, claiming that they had a prior lien upon the land, and applied to this court for an injunction to restrain the trustee under that deed from making sale until the court could determine the respective rights of the parties under the two trust deeds. The judge of this court1 on the third day of May, 1877, passed an order at chambers to restrain the trustee Mathews from selling the property described in the bill until the further order of the court. On the fifteenth day of November, 1877, the bank filed its answer, alleging...,-First, that Sheffey and Bumgardner, trustees under the second deed of trust, had notice of the bank's deed before the execution of the deed to them; second, that Sheffey and Bumgardner had sllch notice before. the recordation of the deed; third, that by the terms of the deed to Sheffey and Bumgardner the debt due to the bank had priority; and,!ourth, that the deed to Sheffey and Bumgardner was void on its face. .Nothing further was done in this case until the May term, 1878, when it appears that on the fourth day of May the bank tendered an amended ahd supplemental answer, setting up the fact that, at· the time that Glendy executed the two deeds of trust heretofore referred to, he was not vested with the legal title to the lands upon which he had given the two deeds of trust, and that since the filing of the original answer he had received and recorded. his deeds, and had become vested with the legal title, and that since he had become vested with the legal title, the bank had obtained judgment at law against him; and that, under the provisions of the Code of West Virginia, it had obtained priority over the deeq of trust to Sheffey and Bumgardner. The filing of this answer was 9bjected to by the complainants, and the objection was sustained; the court holding that the matters set up in it, if true, did not affect the questions at issue in this cause; and for this reason the court perpetuated the injunction, decreed a sale of the lands, and ordered the proceeds to be distributed under the provisions of the Sheffey and Bumgardner deed. At the next term of the court, on the second day of August, 1878, the bank tendered a petition to rebear so much of this decree as refused to allow the supplemental answer to be filed; and the first question tbat pre.,
SHEFFEY V. BANK OF LEWISBURG.
sents itself for the consideration of the court is, whether this decree was a final or an interlocutory order iu this cause. It appears that the consideration of the questions presented by this petition was postponed until the November term of this court in 1885, when the court passed upon them, and entered a decree which vacated and set aside the decree of the fourth day of May, 1878. It is now insisted that the court could not properly make the order vacating that decree, for the reason that it was a final decree disposing of all the questions presented by the pleadings in this cause. The bill filed was mainly for the purpose of settling conflicting rights under two deeds of trust given by the defendant Glendy upon a valuable farm in Greenbriar county,-one to the plaintiffs in this The deed cause, and the other to the defendant the Bank of to the bank was first executed and delivered, but the deed to the plaintiffs was first duly recorded under the registry laws of the state. The bill made the Bank of Lewisburg, Alexander F.Mathews, and Robert Glendy defendants. The vital question presented by the pleadings was, which of the two deeds secured the first lien upon the property. For this purpose it was 'only necessary to have the bank and the trustee before the court, as the plaintiffs were only contesting the right of the bank to assert a prior lien under its trust. When this question was disposed of, all the court had to do was to direct the sale of the property, and distribute the proceeds among the creditors secured by the trust which was ascertained to.be the first lien upon the land conveyed, and, if there was any balance after satisfying the creditors secured in that trust, a.pply such balance to the satisfaction of the debts secured in the second trust. This question being settled, the merits of the controversy as presented by the pleadings were at an end. The decree of May 4, 1878, directed the sale of the land in controversy, distributed the proceeds arising from the sale, and perpetuated the injunction inhibiting the bank from selling under its trust ,deed. It is obvious that this decree determined the rights of the parties, and was, in effect, a decree of foreclosure of mortgaged premises, leaving nothing to be done except to execute its provisions. Such a decree has always been held by the legal tribunals to be a final decree. That the defendant bank so regarded it is evident from the order it obtained from the court on the second day of August, 1878, tendering "its petition for a rehearing of the order made in the cause of the term before." The petition did not seek to open the decree. only so far as the court had refused the bank permission to file what it termed its amended and supplemental answer, which presented the fact that, at the time that Glendy executed the two trust deeds referred to, he was not vested with the legal title to the lands conveyed, and that the bank had obtained judgment against Glendy, and had the same docketed after he acquired the legal title. The subject-matter of this petition was duly considered at the time, and we see no reason now to change the views we then entertained, and only refer to it to show the conclusive character of the decree as admitted by the petition filed by the bank. If then, this decree as we hold it to be, it is not a subject of review by the court
l!'EDEitA.L REPORTER. : ,'"
: which pasged it after theteI'm 'at whlch it' was enterereCl,the: time bra\!,jng expired within which, turcl.et equityrule',88,atebearing could' be ,had. ,That rule expressly declares that "norehe'aring !;loall be granted. after the tertn at which the fhia;! decree of the cOl1rt'shall have been en, tared andreoorded.» Theapjrlieation ofthis rule ·has'rbEfen frequently the sl1bjectof consideratlonby: the supreme· court,. and in the case of Rof'Jme1' \r'. SirMn, 95 U. S. '214, it held that the court whiCh tendered the decree "ctlnnot grant a rehearing after the term at' 'which the final ' " . decree was rendered. tt It is trtie; this decree has been vacated for the: reason,' given by the court at that time, that the- beneficiaries, or t1'U8t;were not before the court. ,Subsequent reflection has not only inauced'ine to change my views uponthisquestibn, 'but it leads me to the conolusion that if 'therei8 'a want of proper l>al'ties before the court, it is an error which , can he rea'Ched only hy an appeal. It follows therefore. that the decree of May 4, 1878, is unaffected by the order entered in August, 1878,at , the following term of the : I might well rest this easEl upon this ground, but there is another ques. tion which T will briefly Cdnsider, 'for the reason that T regard it as conclusive of the case, and that is,whether the plaintiffs were purchasers with notice. A strong effort has been made to show that the trustee Sheffey had notice' of the existence of a trust deed to the bank. Notice , must be either actual or constructive. It is not contended that he had constructive notice, and therefore, if he had any, it must have been act,'uaI. There is no direct proof of notice, but there is an attempt to show such circumstances as amount to notice. Notice of this ,charactor must 00 clearly proved. That no one pi'oves it does p.ot seem to admit of a doubt. It is p.ot sufficient to say that there is a web of circumstances that surround the plaintiff Sheffey in this transacti-on which tend to fix a strong suspicion of notice upon him. If this were true, then the guilt . of fraud would' attach to him, which would be unjust, founded on such testimony. It is well settled that, "to affect a jJUrchaser for value of land with notice of an unrecorded deed of trust; the evidence must be ,sufficient to prove him guilty of a fraud." There is no evidence in the record that tends to fix a fraud upon Sheffey. He is placed on the witness stand,anddeniesany knowledge of the existence of the bank deed until after the execution and delivery of the deed by Glendy to the plain,tiffs. It is true that the evidence of McKinney and Snyder tend to fix upon Sheffey a suspicion of notice of the prior existence of the deed of the bank, hnt that is not sufficient. Mere suspicion, though strong, proves nothing, and certAinly is not sufficient to overthrow the positive evidence of awitnes9 placed on the stand by the defendants, who present him to the court as worthy of credit. Such was the high character of the witness that, the defendants waivedhis swtlrn testimony in the first instance, and accepted 'his simple statement in writing as true. It is true that afterWlll'ds he was placed on the stand, and his testimony taken , pursuant to law, but the court fails to perceive that there is any material difference' between his testin:ony under oath and his statement made
SHEFFEY V. :BA-N:K OF LEWISBURG.
when not under oath. It follows that there is a want of sufficient notice deed of trust; and, to affect the purchaser who cla.i.m,s under: the inasmuch as the second deed was first recorded, the statute gives it priority in the absence of actual ,notice to the trustees before its execution. The plaintiffs iIi this cause ctaim under the trust that was first recorded, the defendants to establish noticeto affect and the burdep of plOoUe their rights underthat trust. ' This they hlJ,ve failed to do, and for this reasoD; as well as the one first assigned, the'Court is of opinion that the decree heretofore pass,ed on the fourth day of May, 1878, should stand asits judgment. '. ', Itis,<ilairned, however, the debt due the bank was intended by Glendy robe secured by the trust deed of November 20,1876, as a preferred debt,llJ.oug with the, vendor's liens, judgments, and other para-' mount liens mentioned and secured in said deed, and entitled to preference over the general creditors. Clearly this d!'lbt is not embraGed by either of the first two classes referrl3d to: If it is secured under this trust, it must' be under the class named as "Paramount Liens." What, then, is a pll.rll:mount lien? It is a H,en that must exist at the time of the exe- ' cutionofthe·deed. That it did not exist so as to affecteitherpurchasers or creditors without notice cahnot be controverted. The deed to the witQ.out .nptice, was' only good as between it· and bank, Glendy. It was neither prior in point of time, nor superior in point of dignity, to anyaf the debts secured by the trust deed to the plaintiffs.· To make' the'1,>l,lJi,k debt a paramount lien under the deed of trust of November 20, 1876, it must have been a valid lien at the'date of,it!! e,xecution.1'his:deed, did. n'lt create paramount liens; it only recognized existing liens made paramount by law. This was clearly the purpose of the grantor, for he recites in his deed that" he owed many and large which he desired to secure, and at the same time to prevent any ofJ')is creditors from getting priorities over others, and to place his creditors on a footing of entire 6filuality." It is obvious that the grantor, Glendy, did not intend by his deed to create a preference among his creditors. He intended,: so' far as he could; to place them in the position. the law gave them. He could not have fOl:gotten the bank debt, and if he desired to give. it a preference he could have easily done so. He did pot do it, butlefHtto its legaUa.te. It was a secret trust, and clearly void as to creditotsand. purchasers fot value witboutnotice.. That the plain-. tiffs were purchasers for value without ,notice, we cannot doubt. The question of notice we have befQredisposed of,and it is now the settled law that a,trustee is abona'ftde purchaser until the contrary is shown; Such, we hold the plaintiffs ·to .be at the time the deed ·was made.to them. Other questions have been presented and ably discussed,but it isun-. necessary to consider them, as the points ruled dispose of the case. It follows that. the dec),'ee entered on May 4, 1878, stands unaffected, ahd that the exceptions. to the master'sa.mendedor second report are over-' ruled. . .
WOL1!'E 'V. ERIE TELEGRAPH
& TELEPHONE Co.
«(Jitrcuit Court, E. D.
1.. MUNICIPAL CORPORATIONB-STREETS-ERE,CTION OF POLES"':'LIABtLITY. In' an action for damages occasioned by the collision of .plaintiff's buggy against a telephone pole. while a usually gentle hOIlSe, had become I,IJ).manageable by fright. defend.ant claimed that the erection Qf the pole in the street w,as authorized by the city, and not defendant. but the latter was liable. Held that. if the pole was a dangerous obstruction to the use of the by the public, the city could not permit its. erection so as to debll,r recovery by an injured party, apd if it had, each and both were liable.
SAME. . .
.' 8. .
The validity of a permit granted by a city to locate spole in a ,street extensively used by the public as a thoroughfare, although conferred in accordance with the authority given by law, will, ill an actiop.for damages sustained by reasQn of a buggy striking such pole. be made subject to thedetermination by a jory as to whether the pole so'1ocated was in point of fact dangerous to the public. ,
For injuries sustained by plaintiff '\ibile driving a horse that became frightened from some cause, in striking with his buggy a telephone pole unlawfully . erected in the street of a city, he ii entitled to recover damages from defendant telephone company, or from those aiding, or permitting the ob-. struction,so long as he used every effort to manage and subdue the horse, and did not leave the buggy before'the collision occurred.
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securely in the streets of a city, and tlie horse bec;omes frightened. breaks the buggy, and is injured in running against an obstruction unlawfully placed in the street by.8 telephone company, the latter willuot be liable for iuj uries resulting.
. If another person tban the owner unhitches s horse and buggy standing
At Law. Action for damages. Wheeler & Rhodes, for plaintiff. , JamelJ B. Stubb8, for defendant.
SABIN, J.r(charging jury.) This is an action by plaintiff to recover damages occasioned by the collision of his buggy against defendant's telephone pole, while driving a usually gentle,horse, as alleged, which had become suddenly unmanageable by fright; plaintiff claiming that such pole or post was erected by defendant in viulation of the city ordinances, and that the same was a dangerous obstruction to travel in the streets of Galveston as located. It is contended, on the other hand, that defendant had authority from the city to erect said pole or post on Church street, near Tremont, where the same is located, near the corner; that it was the frightened horse that caused the injuries for which defendant is not responsible; that, if anyone is liable, it is the city, and not defendant, and, generally, denies the allegations of plaintiff, and that no liability exists when a horse becomes unmanageable from fright, and a party is injured as a result of a collision with such post or pole or any other thing with which a collision might have been had. The most of these matters are matters of law I but some mixed questions of law and fact.