This is an appeal from a decree of the circuit court of Wood county, rendered on the fifteenth day of July, 1874. The suit was instituted by the plaintiffs and appellants against the defendants and appellees to reach the equity of redemption remaining in Jones under certain trust deeds executed by him in favor of certain creditors. The plaintiffs having obtained a judgment issued their execution, with a return thereon of ano property.” The party had a clear right to maintain such a suit; because it was the only way in which that equity could be reached.
The bill sets out the plaintiffs’ judgment and other judgments and a mechanic’s lien upon part of the property, and certain trust deeds; and asks a reference to a commissioner to ascertain and report all the property and all the liens thereon, with the respective priorities.
Without waiting for this report to come in, which should have been done, the plaintiffs obtained an order of sale and all the property was sold, sales confirmed, and proceeds thereof ordered to be held by the commissioner until the debts and priorities should be ascertained. The property sold produced $3,663.
Commissioner Sands made a report and returned it, but it not being satisfactory to plaintiffs they had it recommitted to Van Winkle who sent in his report approving and adopting that made by Sands, as. fully covering
The plaintiffs filed exceptions to this report, as follows :
1st. “Because he files no copy of order- of reference, ■or notice of the time of taking the annexed account and report, and the commissioner finished his meagre report on the eighth of July, 1874; and when he filed it in court does not appear.”
2d. “The commissioner has not, in any report, executed the decree or order to him directed. He failed to ascertain and report the amount due the trust creditors, especially the sum due and payable prior to the sixth day of April, 1868; and to enable him to so report, he had authority to require a statement upon oath from the trust. creditors and file the same with his report, all of which he has failed to do, and, other than a mere statement, no evidence of indebtedness, either to the First National Bank of Parkersburg or to J. N. Camden or W. N. Chancellor — all is left vague and uncertain in said report.”
3d. “The commissioner also failed to ascertain what had been done with the balance of the estate, real and personal, of said John Jones, embraced in said trust deeds, other than that sold under a decree of this court in this cause; and in fact the report is so confused and uncertain, that in justice to the plaintiffs the cause should be recommitted, and the facts referred to in a former decree can be and should be ascertained and reported, and the trust creditors be required to answer the bill of complainants and, at least, file a full and complete list and statement of amount due them, and file the evidence of their said claims, showing whether they, the said Camden and Chancellor, claimed as endorsers only, or have they paid the First National Bank the amount for which they endorsed, &c.”
The cause came on to be finally heard on all the papers, including the reports made by Sands and VanWin-.kle, with the above exceptions : And it is recited in the decree that commissioner Van Winkle “had filed with
The first error assigned to said decree is “ that it was error to overrule the exceptions to said report; but the" court should have recommitted the report to ascertain the matters in the order of reference "required, to enable the court to render a just decree. On inspection of said report it will be seen that the said commissioner did not give notice of the. decree under which he acted or should have acted.”
The decree, as I have shown before, states expressly that the commissioner did file with his report the decree under which he was required to act, as well as the order requiring him to amend and correct the report made by Sands, with proof of notice upon the parties,
The second error assigned is that “the court erred in decreeing the payment of the two notes, each for the sum of $1,500 — with interest, &c., — without specifying to whom the money should be paid-; whether the First National Bank as owner and holder thereof or the said endorsers, Camden and Chancellor; and in fact it does not appear to whom the money should be paid, although this fact was required to be reported; nor does, or did, it appear that the Bank was the owner and holder of the notes and said notes were filed in the papers of the cause and shown to belong to the Bank.” The facts do not sustain the assignment of error, but just the reverse. Still, if it were otherwise, as the commissioner is required to pay the two notes specially described, I cannot see that it could be complained of. The duty would devolve on the commissioner to see that he paid the money to the party entitled to the debt.
Nor can there be any donbt about the correctness of the decree directing these two notes to be paid first after the mechanic’s lien, because these, with other notes, were secured by trust deeds executed by Jones, the debtor, on the property sold, and duly recorded prior to the lien of the plaintiffs. It is true there had been some renewals of the original notes, but that was provided for by the trust deeds.
It does not appear that the trust creditors had two funds .to resort to for the payment of their debts. Indeed, the appellants do not, in terms, say what constitutes the second fund, but I suppose they mean that, as there was-some personal property contained in some of the trust deeds, for the security of these and other negotiable notes, that the creditors would be bound to credit their debts with the value thereof. The case shows that no . trustee or person had ever taken possession off the personal property or sold it. The trust creditors are not-chargéablé with property in that condition; nor could they be charged therewith without proper proceedings had for that purpose, which were not had in this case. It does not appear that such existed; and, if not,' that question does not arise.
. ‘ The plaintiffs seem to complain that the parties claiming the protection of the negotiable notes, under the trust deeds, did not show the true amount of those-claims. The commissioner reports these debts as valid and unpaid and returns the deposition of W. H. Chancellor with a detailed statement of not only these notes, but many others. I am at a loss to see how the case could be made clearer or more satisfactory. I might refer to the fact that this causé was conducted by the plaintiffs and appellants, that- they matured the cause in their own way, having had many orders that tended to delay the hearing of the cause ; ¿nd as a recommittal as asked for by them could only have had the effect óf producing further delay it was certainly right not to grant it. If
I am of opinion that there is no error in this cause ■ for which it should be reversed, at the- instance of the appellants; and am therefore of opinion that the decree should be affirmed with costs and damages.
Decree Appirmed.