Public-domain · open source
OpenJurist

49 W. Va. 323

Kennewig Co. v. Moore

West Virginia Supreme Court

Decided March 23, 1901

West Virginia Supreme Court · decided 1901-03-23

<p>1. Deed — Defective Acknowledgment — Recordation</p> <p>A simple contract creditor cannot attack the recordation of a deed in equity because the acknowledgment thereof is defective, (p. 325).</p> <p>2. Conveyance — Recordation—Limitation.</p> <p>A year having elapsed since the execution and recordation of a preference in favor of a creditor given by the debtor, equity cannot 'interfere with such preference, although the effect thereof is to defeat other creditors from realizing anything on their debts, (p. 325).</p> <p>3. Appeal — Finding of Circuit Court.</p> <p>This Court will not reverse the finding of the circuit court unless it is decidedly against the weight of the evidence, (p. 325).</p> <p>4. Bill Pails — Relief of Go-Defendants.</p> <p>Where the relief sought in a hill fails for want of proof, no relief can be administered between co-defendants on answer filed praying it, but such answer must be dismissed with the bill, without prejudice to the rights of the defendants as between themselves, (p. 326).</p>

Cited by 4 later decisions — most recently November 1912

4 state decisions

Relies on Merchants' National Bank v. Williams

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1901-03-23

View the full empirical analysis of this case →

Brannon, President,

¶1(concurring) :

¶2I concur in the conclusion for the reasons that we cannot find fraud in fact to reverse the decree, and the plaintiff had no lien on the equity of redemption, and as a preference mortgage the suit was too late; but I do not agree to that feature of the opinion which may be construed to mean that one who has a fixed lien' on property, subject to a prior mortgage, cannot cause the salé of the property without first redeeming or showing that in fact the property will not bring enough to reach his debt. He has a right to a public offer of the property for sale. Where a subsequent mortgagee or other lienor wants to redeem and files a bill against the first mortgagee to compel him to allow a redemption, he must offer payment.; but I do not understand that this principle denies him right to sell the property conceding prior liens, or subject to them. When the property has been conveyed to the mortgagee the court in its decree may provide that unless, on offer for sale, the property bring enough to reach the second creditor’s debt, no sale shall be made, or by some proper provision protect his just rights; but to let him Dold his grasp upon the property, and deny relief to a creditor next after him, who is too poor to pay the debt of the prior creditor, does not seem to me to be good law. I made the same point in Johnson v. Riley, 41 W. Va. 40, stating my reasons.

Judges McWhorter and Poffenbarger concur in this note.

¶3Affirmed.

/49/wva/323 · .json · Public domain