Johnson v. Young, Carson & Bryant 20 W. Va. 614

WHEELING.

Johnson v. Young, Carson & Bryant et al.

Submitted June 11, 1880

Decided November 18, 1882.

(*Snydkr, Judge, Absent.)

1. When it does not appear by the record that the appellant made objection in the court below to the filing of exceptions by an appellee or appellees to the report of a commissioner or to the consideration of such exceptions by said court upon the ground that such exceptions were not filed within proper time, objection to the filing of such exceptions or the consideration thereof by the Appellate Court will not be entertained, (p. 656.)

2. A surety is defined as a person who being liable to pay a debt or perform an obligation, is entitled, if it is enforced against him, to be indemnified by some other person who ought himself to have made payment or performance before the surety was compelled to do so; and the relation is fixed entirely by the arrangements and equities between the debtors or obligers and may or may not be known to the creditors, (p. 657.)

3. Where one of two co-partners purchases the interest of the other in the partnership property, &c., and assumes and agrees to pay the partnership debts as to such debts the former becomes in equity the principal debtor and the latter a surety, (p. 657.)

4. The purchaser of a tract of land on which there is the lien of a judgment against two persons one of whom is surety, where the lion of the judgment continues on the land in the hands of the purchaser, by purchasing and taking an assignment of the judgment discharges the surety pro tanto, (p. 665.)

5. In such case the purchaser is hold to be put upon enquiry as to the equity of the surety and will be held to have had constructive notice of such equity, (p. 066.)

6. The equitable right of the surety to substitution to the lien of the creditor’s judgment on the property, cannot be impaired by a subsequent transaction of the principal debtor with third persons. (p. 666.)

Appeal from and supersedeas to certain decrees of the circuit court of the county of "Wood rendered respectively, on the 22d day of January, 1879, and on the 16th day of April, 1879, in a cause in said court then pending, wherein John B. *615Johnson was plaintiff, and Young, Carson & Bryant and others were defendants, allowed upon the petition of said Johnson.

lion. James M. Jackson, judge of the fifth judicial circuit, rendered the decrees appealed from.

Haymonij, Judge, furnishes the following statement of the case:

On the first Monday in March, 1868,.the plaintiff filed his bill of injunction against the defendants in the clerk’s office of the circuit coiirt of Wood county, in which he alleges substantially as follows, viz.: that in the year of 18 — , he and John W. Horner entered into articles of co-partnership in the business of merchandising in the town of Parkersburg, in said county of Wood; and that as.capital hi said business he (plaintiff) was to pay into said partnership the sum of two thousand dollars, which was duly paid into the said capital stock; and that he should share equally with said Horner the profits of said business ; that said business was conducted mainly by the said J. W. Horner, who made the greater part if not all, of the purchases of goods in replenishing their stock from time to time, and said Horner contracted the most part, if not all, the liabilities of said co-partnership, and bad general control of the financial matters of the firm; that said co-partnership was mutually dissolved on the 3d day of September, 1857, by agreement, sealed with the seals ot plaintiff and said Horner, whereby said Horner took the stock of goods, &c., of the said firm of Homer & Johnson and agreed to pay the plaintiff the sum of one thousand dollars in the manner stated in said agreement, a copy of which is alleged to be filed marked Ho. 1; that some time after the dissolution aforesaid E. B. Long and J. C. Long partners under the firm name of E. B. Long & Go., sued plaintiff and said Horner in the county court of Wood county and obtained judgment against them at the August term thereof, 1858, for the sum of two hundred and seventy-eight dollars and fifty-three cents, a copy of which is alleged to he filed as an exhibit marked Ho. 2. By this copy it appears-that said judgment is for the sum of two hundred and seventy-eight *616dollar's and fifty-three cents, with interest on one hundred and thirty-nine dollars and twenty-six and one-half cents, part thereof from the 12th day of May, 1858, and one hundred and thirty-nine dollars tin d twenty-six and one-half cents residue from the 12th day ot June, 1858, and the costs; but this judgment is subject to a credit of one hundred and twenty-five dollars paid by Horner to Amiss, attorney, 11th September, 1865, and that a ji. fa. issued on this judgment the 18th day of January, 1867, returnable to March rules, 1867, and was returned by the sheriff: “ Levied on thirty head of cattle the property of John B. Johnson, and collection of the execution stayed by injunction.”

He also 'alleges, that Charles T. Taylor, "William L. Foster, and John Beaty, partners under the firm name of Taylor, Foster & Co., sued plaintiff and said Horner upon a claim and obtained a judgment thereon, a copy of which judgment.is also alleged to be filed as exhibit Ho. 3; that Samuel Straus, Sleon Hartman, Hatlian Hofflin and T. W. Gfoodloe by their firm name of Hartman, Hofflin & Co. also .sued plaintiff, and said Horner for a claim and at the October term of the county court, 1858, of said county, obtained a judgment against them as partners, &e., for the sum of three hundred and thirty-six dollars and sixty-three cents with interest thereon from the 15th day of April, 1858, until paid, and costs, eight hundred and nine dollars; that Jeremiah Fisher (since deceased), John J. Boyd and Asbury McK. Boyd partners under the firm name of Fisher, .Boyd & Bro. also sued plaintiff and said Horner and obtained a judgment in the circuit court of said county for six hundred and four dollars and fifty cents, with interest on three 'hundred and one dollars and fifty cents' from January 3, 1858, and on three hundred and three dollars from February 2,.1858, and costs, eight dollars and sixty-five cents; that William T. Young, Washington K. Carson and William Bryant, also sued plaintiff and said Horner for a claim at theHovember term, 1858, of said county -court and recovered a judgment against them for sixty-five dollars, with interest from the 12th day of Hovember, 1858, until paid and costs amounting to twelve dollars and thirty-four cents.

The plaintiff charges, that at the several terms, when said *617judgments were obtained as aforesaid, the said J. "W. Horner 'bad sufficient, assets of tlie late firm of Horner' & Johnson in liis hands to pay off and discharge said judgments; and that as he had assumed to pay all the liabilities of said firm, he had personal individual estate to pay the whole of said liabilities, and largely in excess thereof. The plaintiff alleges, that he has been informed and believes; and therefore charges, that the store house containing a large stock of goods, wares and merchandise, marketable and valuable, in and with which the said Horner there was doing business as aforesaid in said town of Parkersburg, invoiced at upwards of four thousand dollars, were levied on by Amiss & Loomis, attorneys for some of said judgment creditors, the store house closed, and the goods, &c., seized and sold upon a pretense of satisfying said judgments; that so far as he (plaintiff) has ascertained or can learn from any source whatever, no part of said goods, wares, &c., were ever applied to the discharge of said'judgments, but said goods and the proceeds thereof were and have been misapplied, squandered and wasted, and he (plaintiff) and said Horner have derived no benefit therefrom, and that by reason thereof he (plaintiff) has been defrauded and injured; that no return of any kind, can be found in the proper offices, and no credit appears to have ever been given plaintiff and said Horner on said judgments, or any execution issued thereon, for any part of the proceeds of the sale of said store-goods, &c. The plaintiff also charges that the said Horner, long before either of the said suits were brought, placed in the hands of said Amiss & Loomis (then the attorneys having the said claims for collection) a large amount of claims, notes and accounts, as collat-erals, which when collected, were to be applied to the payment of said debts, upon which judgments were afterwards obtained; that since said Horner paid said Amiss & Loomis at various times, by himself and others, and in various ways, large sums of money more than sufficient to discharge every cent of said partnership indebtedness which will more fully appear by reference to copies of said receipts of said Amiss & Loomis filed with the bill as part thereof. The said receipts are copied into the bill, the first of which states that Amiss & Loomis received of John ~W. Horner March 2, sundry notes *618for collection as collateral tlie proceeds arising tliereon to be applied to' the payment of certain claims in iavor of Fisher, Boyd & Bro. against said Horner which Amiss & Loomis have for collection after deducting fee and five per cent, commission. The notes received are specified in the receipt, and exclusive of interest amount to one hundred and thirty-nine dollars and ninety-throe cents. The second receipt states that Amiss & Loomis have in their hands for collection claiins against J. W. Horner and Horner & Johnson in favor of Fisher, Boyd & Bro. specifying them which in the aggregate exclusive of interest amount to one thousand and eighty-eight dollars and eighty-one cents and the said receipt proceeds to state that said Horner has placed in the hands of Amiss & Loomis as collaterals, claims tlie proceeds of which after deducting docket fees and five per cent, commission to Tbe applied to the payment of tlie above claims of one thousand and eighty-eiglit dollars and eighty-one cents. This receipt then proceeds to specify said claims and their several amounts which in the aggregate amount to about one thousand and six dollars and eighty-five cents.

The plaintiff further charges that the law firm of Amiss ’& Loomis has been dissolved, and that M. P. Amiss of that firm has the control of said business respecting said collections and that said Amiss has admitted recently that he had collected most of the collaterals given him by the said Horner as aforesaid; that after the dissolution of said firm of Horner & Johnson, the said Horner contracted debts of his own, and that a part of the assets of said firm wore applied by him to the payment of his said liabilities contrary to his duty in that behalf and to the injury of plaintiff; that he is advised and believes that one J. L. Morehead, a resident of "Wood county, pretends that the benefit to bo had from any of the said' judgments and executions has been assigned to him, and he has directed executions to be renewed on three of said judgments, to wit, on that of Young, Carson & Bryant, E. B. Long & Co. and Straus, Hartman, Hofflin & Co., and said renewed fi fas. have been levied on the following property of plaintiff, viz., thirty head of stock cattle, and said sheriff has threatened to sell the same upon said executions. Said executions are copied into said bill and the *619first of which is in favor of said firm of Straus, Hartman, Ilofilin & Co. against said firm of Horner & Johnson for three hundred and thirty-six dollars and sixty-three cents, with interest thereon from the 15th day of April, 1858, until paid, and eight dollars and nine cents costs. This execution is dated the 24th day of August, 1865, and is returnable before the couuty court of. said county on the first Monday of October thereafter. The second execution is in favor of said firm of E. B. Long & Co. against said firm of Horner & Johnson for the sum of two hundred and seventy-eight dollars and fifty-three cents debt with interest on one hundred and thirty-nine dollars and twenty-six and one-half cents, part thereof from the 12th day of May, 1858, and on one hundred and thirty-nine dollars and twenty-six and one-half' cents residue from the 12th of June, 1858, and eight dollars and sixty-seven cents costs. This execution is dated 22d day of Eebruary, 1860, and is returnable before said county court on the first Monday of April thereafter. The third execution copied into the bill is in favor of said firm of Horner & Johnson, and is for sixty-five dollars with interest from the 12th day of November, 1858, and eleven dollars and eighteen cents costs. This execution is elated the 22d day of Eebruary, 1860, and is returnable before the judge of the circuit court of said county on the first Monday of May thereafter. From endorsements on each of said executions copied in the bill it. appears that each of them wore returned by the sheriff of said county, “No property found;” and that other executions had issued on each of said judgments prior thereto, and were also returned, “No property found.” The plaintiff further charges that if the said Morehead has bona fide purchased said judgments, he did so with a full knowledge of their being satisfied; that said Horner, before the time said Morehead pretends to have purchased the same repeatedly informed Morehead that said judgments were paid off in law and equity, and that M. P. Amiss well knew the same, and that said Morehead purchased said judgments having notice that the same were satisfied; that said J. L. Morehead, M. P. Amiss and J. 'W. Horner have confederated for the purpose of injuring and oppressing plaintiff, and to vex and harass him with said claims which in good con*620science and equity have been paid; that the matters of said firm have become complicated with the arrangements and dealings of said Horner'and Amiss; that plaintiff has no relief save in a court of equity. But so it is the said Young, Carson & Bryant, Straus, Hartman, Iiofflin & Co., and E. B. Long & Co., M. P. Amiss and J. L. Morehead pretend' that said judgments 'are still due and unpaid, whereas plaintiff charges the contrary thereof to be the truth. The plaintiff makes the following defendants to his bill, viz.': M. P. Amiss, J. L. Morehead, J. W. Horner and firms of E. B. Long & Co., Straus, Hartman, Hofflin & Co., Young, Carson & Bryant and said G-eore Loomis of the said firm of Amiss & Loomis. The plaintiff prays that each of said defendants answer upon their several oaths; that especially the said M. P. Amiss answer and state how much molleja he received from the sale of the said store goods, &c., from the collaterals of said Horner, and from other sources to be applied to said judgments, and that said Morehead state whether he was not distinctly informed, before he made his pretended purchase of said iudgments that said judgments were paid off and discharged; that an account may be taken before one of the masters of the court of the partnership affairs of said Horner and plaintiff; that in the meantime the sheriff of Wood county and said before named defendants and all others interested, their agents and attorneys, be enjoined and restrained from all further proceedings on the last-named judgments; that the injunction maybe perpetual; that said, judgments piay be ordered to be satisfied, and the bill prays for such other and further general relief in the premises as to justice and equity appertains. On the 24th day of April, 1868, the cause was by order of said circuit court in the usual form removed to the circuit court of Ritchie county for hearing and determination and the cause was subsequently docketed in the circuit court of Ritchie county. At the September term 1868 of the circuit court of Ritchie county the defendants Young, Carson & Bryant, E. B. Long & Co., Straus, Hartman Hofflin & Co., James L. Morehead, M. P. Amiss and George Loomis tendered their answer to plaintiff’s bill, and the plaintiff took time to except or reply to the same, whereupon the *621defendants filed a demurrer to plaintiff’s Mil, for want of equity, and upon tlie ground that plaintiff has ample and complete remedy at law.

At December term 1869 of said Ritchie county circuit court that court overruled the said demurrer. The joint answer of said firms of Young, Carson & Bryant, E. B. Long & Co., and Straus, Hartman, Hofflln & Co., reserving all right of exception to said bill for answer state and are substantially as follows: “That they respectively and regularly obtained judgment against the late firm of Horner & Johnson; that they caused executions to be issued on said judgments which were returned “No property found;” that they were informed by their attorney M. P. Amiss one of the firm of. Amiss & Loomis that the said judgments were regularly obtained; that said Horner & Johnson especially said’ Horner frequently addressed them through their .attorney M. P. Amiss proposing and asking a compromise, and these defendants were disposed to compromise and settle and close up their old judgments, and so advised their attorney M. P. Amiss, who informed these defendants that Hor-ner promised to cash the amount proposed, but failed so to do; and from that time up to sometime in the fall of 1866 nothing was done, until James L. Morehead, of Parkers-burg, called on these defendants and informed them that he had a statement of the judgments against said Horner & Johnson of Wood county, and that he would like to purchase them, stating'that- some land he had purchased of one of the Homers was in some way subject to the lien of the defendants’ judgments, and after consultation these defendants each by their firm names respectively, sold and assigned their judgments against said Horner & Johnson; that said Morehead paid them in cash; that they executed to. him a full and complete assignment of said judgments, and authorized him to prosecute them in their names, but at his costs for his own use and benefit, and these defendants immediately notified their said attorney M. P. Amiss of their action; that these defendants have no further interest in said judgments and have given credit upon said judgments for all payments made to them thereon prior to their said assignment to said Morehead; they deny all combination or confederation charged in the bill, &c.

*622The defendants Amiss & Loomis in their answer which is joint saving and reserving all right of exceptions to the plaintiff’s hill substantially state and allege as follows: That the allegations and charges in said hill are erroneous and inaccurate respecting the acts and doings of these respondents iii the premises; that they know not whether plaintiff’s statements of his partnership transactions with his said partner Horner are true or false, and so far as they are concerned it is immaterial; that they were retained as attorneys-at-law by E. B. Long & Co., to collect their claims against said Horner & Johnson, and obtained judgment at the August term 1858, of the county court of Wood county and state that a certified copy of said judgment and the proceedings under it up to the time of plaintiff’s injunction is filed with the bill and their answer marked “A” as part thereof; that they also obtained judgment in favor of Young, Carson & Bryant at the November term, 1859, of the circuit court for sixty-five dollars and costs, and allege the filing as exhibit a like copy of the judgment and proceedings; that as to the case of Straus, Hartman, HoiHin & Co., A. I. & J. S. Boreman attorneys had control of it up to June, 1865, when the same was put into those respondents’ hands' and allege the filing as exhibits like copies of the judgment and proceedings ; they aver that the certified copies of the said judgments and statement of the different executions which issued under them, show a true statement of all credits and payments ever made upon them; that on the contrary, plaintiff has filed with his bill incomplete copies, and omitted to set forth the true executions which last issued on said judgments; they deny the allegations and charges that they seized and levied on Horner & Johnson’s goods or either Horner or Johnson’s at any time, or that they or either of them directed tlie sheriff or officers to lock up their storehouse in Parkersburg; but on the contrary the sheriff could heretofore find nothing on which to levy, as appears by their returns on said executions, until levied on some of Johnson’s cattle, the sale ofwhich heprevented by his bill ofinjuction; thatplaintiffis wholly mistaken in his charges and statements, in saying that said Horner placed in the hands of Amiss or Amiss & Loomis, a large number of claims, notes, and accounts as collaterals, *623which when collected were to be applied to tbe payment of said debts meaning tlie judgments aforesaid; tliat plaintiff is mistaken in respect to these receipts, and if he will produce them or a true copy of them, they will show he stated falsely; and further the receipts of Amiss & Loomis show on their face on what debts the collaterals were to be applied to-wit on claims of Fisher, Boyd & Bro., upon which there is now depending a chancery suit against Horner & Johnson, and they filed said receipts in said cause, which is the proper plan; they file certified copies of said receipts with their answer which are the three receipts set out in plaintiff’s bill and of same purport so far as I see; they also file with their answer the an extract from report of Commissioner Sands made in the Fisher, Boyd & Bro. suit showing how the said collaterals have been accounted for; they and especially M. P. Amiss deny the charges of combination and confederation with Horner, Morehead, or any other person to injure or harass plaintiff; that M. P. Amiss did inform James L. Morehead that he was attorney for some creditors, who .had judgments against Horner & Johnson that were not satisfied but remained unpaid, and that said judgments were liens upon the and he purchased of one J. Y. Horner father of J. W. Horner, and if they were not paid suit would be brought to enforce said liens; that defendant Amiss told said Morehead if he would examine the records of Wood county or request the clerk he would furnish him with copies of said judgments, and he did obtain copies of them and he said Amiss also from time to time urged said Horner and Johnson to .pay off these judgments, and furnished both of them with statements of how each one stood and the balance due, so that they knew they were not paid; that Morehead -purchased these judgments and had the same assigned to him for Ms use and benefit in the fall of 1866, and the plaintiff so informed respondent Amiss and respondent knew that Morehead after he had purchased these judgments, informed Horner and Johnson that he had so purchased them to prévent suit against his own land, and Morehead informed them that he did not wish to press them; that if they would secure them he would also make some deduction if settled at once, but they refused to do anything towards paying off these claims, consequent*624ly at the instance of Morehead, respondent Amiss as attorney ordered new executions to issue on the judgments and was particular to see that said judgments were credited with all payments made to the plaintiffs or respondent; that these respondents are sure and certain that the balance claimed by plaintiffs on said judgments is justly due and unpaid, and further that respondent is satisfied that the plaintiff and John W. Horner knew that they have no real defense or further set-off against said judgments; that respondents have no interest in said judgments, that respondent Amiss is still attorney in the cases for the use of Morehead, and he expects to be paid as attorney only, &c. This answer is sworn to by M. P. Amiss.

The defendant J. L. Morehead in his answer after reserving and saving the benefit of all exceptions to the bill for insufficiency, &c., states and alleges substantially as follows: that it is true that he not only pretended but in fact did purchase the judgments referred to in plaintiff’s bill and paid the plaintiffs therein, and had the same assigned to him and for his use and benefit; he denies knowing that said judgments were satisfied, but in fact he knows they were unsatisfied. He states as a reason for th e purchase that he some time prior to the assignment of said judgments to him, purchased a tract of land of J. Y. Horner, father of the said John W. Horner, which tract of laird said J. Y. Horner had purchased of his son John, and the lien of said judgments and others attached upon said land while the said John W. Horner was the owner thereof, and in obtaining the deed for said land, and at the time the said John promised to have said liens removed off of said land, but he neglected so to do, and soon after this Amiss attorney for plaintiffs, in a portion of said judgments, threatened to enforce the liens aforesaid against this defendant’s land, if said judgments were not paid. And that this defendant finding that he was likely to be harassed in a chancery suit against his land, he determined if possible to protect himself and in order to do so he went to the city of Baltimore and did purchase of the plaintiffs in said judgments the judgments aforesaid and they for value received, assigned the same to him, and this defendant immediately after he had so purchased the claims *625informed said J. W. Horner what' lie had done and proposed to compromise tlie same with them, or either one of them, informing them at the same time that unless they settled said judgments he would he compelled to collect them by execution; that before he caused new executions to be issued on said judgments he requested said Horner & Johnson to produce any evidence of payments they or either o± them had made upon said judgments, and that if they were not credited already, they should be,' and if they had any set-off that should be allowed upon these judgments, the same if proper and just should at once be allowed. But, they produced no evidence of payments, other than those already allowed and endorsed on executions upon said judgments; that about this time the said John W. Horner pretended that he had paid off these judgments but, when called on by this defendant and M. P. Amiss, attorney for plaintiffs in the judgments, to produce evidence of any further payments or credits that he should be allowed on said judgments, he did not show any further payments or credits to be allowed. And this defendant being satisfied that said Horner & Johnson could produce no further credits or sets-off to said judgments, he caused executions to issue with the consent of Amiss & Loomis co-defendants. He denies all charges of fraud and confederation with any one, to injure or embarrass either the plaintiff or said John W. Horner, but on the contrary his object was to relieve himself and his property from the liens aforesaid. And being a bona fide purchaser of said judgments,'and having the same assigned to him for a valuable consideration he is advised that he has the right to enforce the collection of said judgments, that said Amiss & Loomis have no interest in said judgments, that said M. P. Amiss, late of the law firm of Amiss & Loomis, was the attorney for the judgment creditors aforesaid and this defendant retained him and he is still the attorney for this defendant and as such attorney is all the interest he has in said judgments. And further denying all confederation and combination charged in the bill, he prays that the injunction be dissolved, &c. This answer is also sworn to.

At December term 1869 of the circuit court of Bitchie *626county the cause was heard upon the bill, answers of the defendants, depositions taken and exhibits filed; and the court by its decree referred the cause to K. B. Stephenson a special commissioner appointed for the purpose. First to ascertain the amount of goods and other personal property of J. ~W. Horner levied on and sold to satisfy the judgments named in the cause, and what was done with the assets arising from the sale of said property. Second, to ascertain the amount paid to the defendants, before suit was brought on their respective claims and also amount paid said defendants, on their respective judgments or to their attorney, or to the sheriff, on the executions from any source and how the. same was applied, and also to report any and all collaterals placed by said Horner in the hands of defendants’ attorneys and how the same was applied. Third, to ascertain the amount if any due from Horner & Johnson -to the defendants in this cause the suit was instituted against plaintiff and said Horner together with all other matters deemed pertinent, &c., &c.

At August term 1870 of said Ritchie county circuit court the last named order -was set aside, and -at the December term 1870 of same court the cause was heard as before and the court referred the cause to Barna Powell special commissioner appointed for the purpose with directions to ascertain and report, first, how much if any is due the defendants in the cause, upon their judgments, from Horner & Johnson. Second, to report any matter deemed pertinent that may be required by either party touching the matters in the cause, and to hear any further evidence that may be offered by either party &c.

At the said December term 1870 of the last named court the defendant John W. Horner with leave of the court filed his answer to the plaintiffs bill, in which the said John W. Horner states and alleges substantially as follows : He admits that plaintiff and he were partners in the mercantile business and that he made all the purchases and attended to the financial part of the business, that a part of the assets of Horner & Johnson was applied to the payment of his individual debts, but without his knowledge or instructions; that he purchased the entire interest of plaintiff, in the goods and effects of the firm of Horner & Johnson, and was to pay *627the liabilities of the firm. He denies that there was any collusion between him and Amiss or any other person to injure or annoy plaintiff. He alleges that he went on in good faith to carry out his agreement with plaintiff, and that he paid large sums of money to Amiss & Loomis and to the sheriff, and that he also placed in their hands a large amount of collaterals which they collected and were directed to pay on the firm debts of Horner & Johnson but did not; that the sheriff levied on and sold a large amount of goods belonging to respondent, to satisfy the executions named in plaintiff's bill, and that all his personal property was levied on and sold by the sheriff to satisfy said executions; that no invoice of the goods or property sold by the sheriff was ever returned to the office, and no credit was entered on any of the executions until after plaintiff filed his bill of injunction; that he was for some five or six years suffering from scrofula and about three years of the time he was confined to the house, and was totally unfit to attend to business, and really knew nothing about his business during that period, only as ho learned from his papers and information derived from others; that during his sickness great advantages were taken of him ; his property was sacrificed and suffered to be squandered by the attorneys; that after he recovered sufficiently to look after his business, he went to Amiss & Loomis who held the greater part of the claims against the firm of Horner & Johnson and asked them to give him a statement of how ho stood, they promised to make out a statement and give it to him; that he called on them again a few days afterwards and they informed him there was about five hundred dollars back ón all the claims they held on Horner & Johnson, that they would take five hundred -dollars in full for all the claims, and give him twelve months to pay it in, if lie would give good security; that he agreed to give them the five hundred dollars payable in twelve months, with security as a final and full settlement of all the claims in their hands against ITorner & Johnson ; that he sold a piece of land a few weeks thereafter, and paid the five hundred dollars to said M. P. Amiss, and that Amiss was to return the executions satisfied; that he never heard anything more about said claims until J. L. Morehead pretended he had purchased *628them; that said Morehead came to him, and wanted him to join him to buy up the claims, and that a nice thing couldbe made out of Amiss & Loomis; that he refused to join him, and informed him that the claims were all paid off; that every word of Morehead’s answer is a base misrepresentation of the tacts, and that Morehead’s object was to cheat and defraud him; that before and at the time he was taken sick he had a large amount of personal property, all of which was levied on and sold by the sheriff to satisfy the executions in this cause, and that had respondent been fairly dealt with he would have had a large surplus coming to him after paying off' every cent the firm owed &c. This answer does not appear to have been sworn to.

Commissioner Barna Powell made and filed his report and at the April term, 1872, of the circuit court of Ritchie county a decree was entered in the cause dissolving the injunction and dismissing the bill at plaintiff’s costs, and it was ordered that the papers of the cause he transmitted to the clerk of the circuit court of Wood county, and the said decree he entered upon the chancery order book of said court at the next term thereof. At the April term, 1872, of the circuit court of Wood county the court ordered the cause to he docketed in that court and in the same ordered that the last named decree be entered of record, which was done as part of the same order. Prom the last named order an appeal was taken to this Court by the plaintiff, John B. Johnson; and this Court on the 17th day of November, 1877, without passing on the merits of the cause reversed the said decree of the circuit court of Ritchie county rendered at the April term thereof, 1872, except the portion thereof which ordered the papers of the cause to be transmitted to the clerk of the circuit court of Wood county, and reversed the last named decree of the crcuit court of Wood county, except that portion of it which ordered this cause to be docketed in the circuit court of Wood county and remanded the cause to the circuit court of Wood county, there to be proceeded with and determined according to the rules and usages governing courts of equity, &c. See Johnson v. Young, Carson $ Bryant, 11 West Va. R. 673. Depositions were taken by plaintiff and defendants as *629though general replications were filed to each, of the answers.

After the cause had been remanded by this Court to the circuit court of Wood county for fui’ther proceedings the cause was docketed in the circuit court of Wood county and afterwards on the 18th day of April, 1868, the death of said John W. Horner was suggested and the cause revived as to him in the name of li. E. Horner, his administrator, by his consent and the Court transferred the cause to the circuit court of Harrison county to be proceeded in, heard and determined. And afterwards in 1878 the cause was docketed in the said circuit court of Harrison county.

At September rules, 1878, the plaintiff filed an amended bill in the cause which is as follows:

“ To the Honorable the Circuit Court of Harrison County, West Va.:

“The amended bill of complainant of John B. Johnson to the bill of complaint filed by him against Young, Carson son .& Bryant and others, now pending in said court. Humbly complaining, your orator, John B. Johnson, respectfully shows that in March, 1868, he filed his certain bill of complaint in the circuit court of Wood county, West Ya., against Young, Carson & Bryant and others, amongst other things alleging the existence of a partnership which had before that been formed between, your orator and John W. Horner, deceased, which had been dissolved by mutual consent; that the firm was somewhat indebted; that Young, Carson & Bryant and others, creditors of said firm, had obtained judgments against said firm and had been almost if not entirely paid by the said firm and the said John W. Horner; that certain claims were placed in the hands of M. P. Amiss and George Loomis as attorneys of certain of the said creditors, as collatei’als, by the said John W. Homer to be applied on certain of the said debts against said firm of Hor-ner & Johnson, and that the same had not as claimed by the said Horner been paid on said debts against said firm of Horner & Johnson; that one James L. Morehead, claiming to own the said judgments against the said Horner & Johnson, had caused new executions to be issued thereon, which wore levied on the property of your orator, and praying an *630account of the partnership, and of the payments made on said debts, of the sums collected on said collaterals, any general relief; and also praying for an injunction which was granted by the said circuit court of Wood county, all which will fully appear by said original bill of complaint filed as aforesaid. And your orator further shows that such proceedings were had in said cause, that afterwards an order of reference was made therein and a report filed by Barna Powell, commissioner, showing fully the satisfaction of all .the said executions, and that your orator was entitled to have the same perpetually enjoined, which report is now on file in this honorable court, and reference is hero made to the same.

“And your orator further shows that in addition to the judgments of Young, Carson & Bryant and others, mentioned in the original bill of complaint there is a certain other judgment in favor of Fisher, Boyd & Bro. against the late firm of Horner & Johnson for the sum of six hundred and four dollars and fifty cents, with interests and costs; that in 1859 the said Fisher, Boyd & Bro. instituted a certain suit in equity in Wood county circuit court against the firm of Horner & Johnson ror the purpose of enforcing the lien of said judgment against the real estate of said Horner & Johnson and your orator, and that answers being filed by the defendants, and proofs taken, the said last named cause was referred to a certain commissioner of the circuit court of Wood county, and that Commissioner Sands made his report therein which was excepted to, and the exception being sus-stained, the cause was recommitted to one of the commissioners of said' court, but this order has never been executed; and that at spring term, 1878, that cause and the one of your orator against said Young, Carson & Bryant and others were transferred to this honorable court fqr further proceedings. And your orator further shows that each of the said judgments are claimed to be wholly unsatisfied, but the contrary is the truth as your orator is hereby convinced, and as the papers and proofs in the case will show.

“And that the said James L. Morehead claims to be assignee of all the said judgments and executions, as will appear by reference to the report- of Barna Powell in the original cause.

*631“And your orator further shows that the said Fisher, Boyd & Bro. are non-residents of this State as well as all the other pretended judgment-creditors of Horner & Johnson, and their debts having been almost, if not entirely satisfied, are claimed nevertheless to be liens on the real estate of your orator and do thereby create clouds upon his title; and ought to be removed.

“Your orator further shows and charges, that the said James L. Morehead in the year 1865 purchased a tract of land, containing one hundred and thirty-eight acres, lying-in Wood county, W. Ya., from one James Y. Horner, who had purchased the same from the said John W. Horner, after the said judgments had become liens on the land of. said John W. Horner; and your orator is infonned and believes, and so charges, that by an agreement in writing made between the said James Y. Horner and the said James L. Morehead, it was agreed and provided, that in view of the existence of the said judgment-liens and certain other' incumbrances on the said tract of one hundred and thirty-eight acres, that the said James L. Morehead should retain the sum of two thousand four hundred dollars, to secure himself against the said liens, the said agreement bearing date 7th day of September, 1865, and is filed with papers annexed to the report of Barna Powell aforesaid, to which reference is hereby made. And 'it is further provided in said agreement, that the said Morehead should convey to said J. Y. Horner a lot in the city of Parkersbui-g, W. Va., on Market street, being lot forty-three, in Stephenson’s addition, where the said John "W. Horner then resided, to be taken by said James Y. Horner as payment for the said tract of land, and the liens of said judgments also existing or which would attach upon -the said lot, in case the title to the same was or should be, in the said John W. Horner; it was further provided in said agreement, that the deed which Morehead was to make to J. Y. Horner should retain a lien to indemnify said Morehead against said judgment liens on said lot, and that by wayof further indemnity the said Jamos Y. Horner in the deed which he had made or was about to make to John W. Horner in trust for a tract of forty acres of land in Wood county, W. Va., for *632his wife and children a lien against the lands sold to More-head should be retained to indemnify the said Morehead against the incumbrances of said judgments. And your orator further charges, that afterwards on the 6th day of September, 1866, the said J. L. Morehead released said J. Y. Ilornor from all liability that may rest upon him, (Horner) by reason of judgments docketed against John W. Horner in said "Wood county, except alien retained on the said house and lot on Market street in the city of Parkersburg, conveyed by James Y. Horner, to John W. Horner, trustee for the benefit and protection of the said Morehead; all which will be seen by reference to exhibit filed with the report of Powell aforesaid.

“And your orator further charges, that the said lien, was so retained in a deed by said James Y. Horner to John W. Horner, trustee for said house and lot, bearing date the 18th day of October, 1865, a copy of which will be filed herewith as a part of this amended bill.

“And your orator further charges, that the said James L. Morehead, as your orator is informed and believes, became the assignee of the said judgments against Horner & Johnson, for little or no consideration, with full notice that they had been paid oft and discharged, and that he has fraudulently endeavored thereby to enforce the same against your orator and the said John W. Horner’s estate; that the said Horner, (now deceased), declared and showed that the said judgments had been fully paid by your orator and the said Horner, and that if anything really did remain the indemnity which was made by the lieu on the said house and lot and the said land, was amply sufficient for whatever such balance, (if any) might be.

“And your orator further shows, that the said More-head having become as he insists the assignee of said judgments, can stand in no better right or position, than the said judgment-creditors, and having had payment or satisfaction once he is not entitled to more; and that the security retained by him in the purchase of said one hundred and thirty-eight acres of land was sufficient to satisfy said liens.

“And your orator further charges, that the said John W. Horner, by the article of dissolution filed with the papers in *633tlais cause, took the stock of goods belonging to the firm of Horner & Johnson, and expressly agreed therefor, to pay off the debts of the said firm, of all which the said Morehead had notice before and at the time of the pretended purchase by him of the said judgments; and the said Morehead having secured himself against whatever might be due from said Horner on said judgment, by the provisions made in the said agreements of September 7th, 1865, and September 6th, 1870, he is not entitled to claim more than he paid, (if anything,) for said judgments; and is bound in equity to resort to. the liens ho expressly contracted for thereby; and that the said Morehead having expressly provided with the Horners for reimbursement or indemnity against the said supposed liens, he is bound to proceed first against the security he has so provided; and particularly so since the said Horner refused to pay the debts of said firm; and the said arrangement between the said Morehead and Horner was subsequent thereto, and your orator charges that upon a fair settlement of accounts after allowing all the proper credits on the said judgment there is nothing due the said Morehead thereon; and that the executions aforesaid should be perpetually enjoined.

“Your orator further represents that since the institution of the said suit by your orator, the said John ~W. Horner died, and that R. E. Horner has been duly appointed administrator of the estate of John W. Horner.

“And your orator is advised that the said John W. Hor-ner’s estate being equally liable for whatever may be justly due, (if anything) on said judgments, after the said Amiss & Loomis account for the said collections, and the said More-head being as he claims assignee of said judgments; and he having purchased the said tract of one hundred and thirty-eight acres of land, with full knowledge of the liens of said judgments, he the said Morehead, is bound to account with your orator for whatever may be due your orator in settlement of the said liens, growing out of the firm business of Horner & Johnson. And your orator being without relief in the premises, and in order to avoid a multiplicity of suits or proceedings against said Morehead and the said creditors, prays that B,. E. Horner, administrator of the estate of John *634W. Horner, deceased; M. P. Amiss; George Loomis; James L. Moretead; E. B. Long and J. 0. Long, partners as E. B. Long & Oo.; Samuel Straus, Sleon Hartman, Hatlian Hofflin, and T. W. Goodloe, partners as Straus, Hartman, Hofflin & Oo.; "William T. Young, "W. K. Carson, and "WilliamBryant, partners as Young, Carson & Bryant; Jeremiah Eisher, J. J. Boyd, and Asbury Me. Boyd, partners as Eisher, Boyd & Bro.; and Austin Doll, assignee of Eisher, Boyd & Bro.; Charles E. Taylor, William J. Eoster, and John Beatty, partners as Eisher, Eoster & Co., be made parties defendants to this bill, that they may answer the Same upon oath. That the said J. L. Morehead may especially state and discover on oath, each particular sum of money or other thing he may have paid or delivered in consideration of the alleged assignment to him of the said liens and claims heretofore set forth, and represented to be held by him.

“That an account may he taken of the moneys collected by the said Amiss & Loomis,or either of them, applicable to the said judgments, or either of them. That an account may be taken of the credits of the firm of Horner & Johnson, that the [said] J. Jj. Morehead maybe enjoined from all further enforcement of the executions in the said judgments against your orator’s estate. That he may be compelled to resort to the indemnity secured by him, and that he may be compelled to stand in the place of the said judgment-creditors only for the actual sums paid by him for said liens, and that an account may be taken thereof. And that the said suit of Eisher, Boyd & Co., now pending in this court for the enforcement of the lien of their supposed judgment against the estate of Horner & Johnson may be consolidated with this; and that the premises being considered that your orator may have such other andfurther and general relief in the premises, as to equity may seem just, and as in dirty bound he will ever pray, &c.

“John B. Johnson,

“By Counsel

At October rules, 1878 of the circuit court of Harrison county the amended bill was taken for confessed and set’ for hearing as to the defendants served. On the 2d day of December 1878 the circuit court of Harrison county by an order removed the cause to the county of Woodto be therein *635further proceeded iu, heard and determined. On the 22d day of January 1879 the parties by their attorneys appeared in the circuit court of Wood county and on motion of the plaintiff, the cause was docketed in that court and thereupon the defendant, Moreliead by his counsel moved the court to dismiss the said amended bill of the plaintiff, which motion the court took time to consider. Thereupon the defendants Moreliead and M. P. Amiss filed their separate demurrers to said bill and amended bill, and their separate answers to said amended bill, in which demurrer the plaintiff joined, and the plaintiff replied generally to said answers. The ground of the demurrer of said Moreliead is that the bill and amended bill are not sufficient in law to entitle the plaintiff to the relief prayed for or to any relief. The ground of the demurrer of said Amiss does not appear. The last named answer of the defendant Moreliead is as follows:

“ To the Honorable the Judge of the Circuit Court of Wood County:

“The separate answer of'Jamos L. Moreliead to the amended bill of complaint filed in the cause against Young, Carson & Bryant and others, and now pending in said court:

“ This respondent says that he is advised that . said amended bill was improperly filed, and that the complainant is and was not entitled to file and maintain the same for many reasons appearing upon the face thereof and the record of said cause, and he moves this honorable court to dismiss the same for said reasons, and because also that there is no equity in said bill.

“And not waiving any benefit of the above objection to said bill or any other that might properly be taken thereto, this respondent for answer thereto refers to his answer to the original now on file, and adopts the same and asks that it may be read with and considered part of this- answer. Respondent does not admit that the proceedings in said cause are correctly set out in said amended bill, but refers to the proceedings therein as the same appears of record for a correct statement thereof.

“ Nor does he admit as true what is said in said amended bill about the judgment of Fisher, Boyd & Bro. against Hor-ner & Johnson, but refers to the same and the record of the *636chancery cause now pending in this court for the enforcement thereof, for the condition and standing thereof. He denies that said judgments or any of them are fully satisfied as stated in said amended bill, hut on the contrary large sums are due this respondent thereon as claimed by him in each of said suits.

“ 'Respondent admits that he claims to be the assignee of the judgments mentioned in this suit, and ho now here says that he is such assignee and entitled to the benefit of said judgments and to enforce them. lie admits that the plaintiffs in said judgments are non-residents of this State, but he denies that said judgments constitute a claim upon the title of the real estate of complainant. Respondent denies that he purchased land from J. Y. Horner on the 7th September, 1865, as stated in said amended bill, but did purchase said land in 1860, as will appear by reference to the said agreement of 7th September, 1865. Respondent denies that he retained the sum of two thousand four hundred dollars or any part thereof, in his hands óf the purchase money of said laud as an indemnity against the judgments mentioned in this suit, which will also appear by reference to agreement of September 7, 1865. But it is provided in said agreement that respondent should retain a lien on lot 43 in Parkersburg which was to be conveyed by him to J. Y. Horner; and respondent afterwards did convey the same and retained the lien as provided, and J. Y. Horner subsequently conveyed said lot to said J. W. Horner as trustee for his wife, and retained a similar lien in that deed, copies of each of said deeds are filed herewith as exhibits, marked respectively 1 and 2, as part of this answer. Respondent also files herewith the deed from J. Y. Homer to him, for the one hundred and thirty-eight acres, marked exhibit Ho. 3, and therewith the agreements between him and said Horner filed in said original cause constitute the entire transaction between him and’ said Horner in relation to said land. Respondent is advised and believes, and so represents that the said J. W. Horner in his lifetime, as trustee for his wife, sold and conveyed the said lot 43, in Parkersburg, to W. H. Chancellor, and respondent is not advised whether said Chancellor still owns the same or not. It is true as stated in said bill that *637respondent released said J. Y. Horner from all liability on account of liens of judgments against J. W. Horner and Horner & Johnson, and said one hundred and thirty-eight acres, except as to the lien retained on lot 43 in Parkersburg. Respondent denies that he became the assignee of said judgments for little or no consideration and- after he had notice that they had been paid or nearly so, on the contrary, he gave a full consideration therefor, and was informed at the time he purchased them that they were unpaid to the extent that he now claims and he believes and answers that they were so. He admits that he has tried to enforce the payments of said judgments, but denies all fraud and says that the sums claimed by him on said judgments are justly due him.

“ Respondent is advised and so answers, that he is not bound to rely wholly upon said lot for his indemnity against said judgments, nor exhaust that first, but has the right to proceed to enforce said judgments in any manner that the plaintiffs therein might have done had they not assigned to him. Respondent says that the judgment of Taylor, Poster & Co. mentioned in the complainant’s original bill in this cause is a judgment against said J. ~W. Horner alone, and constituted a lien upon said one hundred and thirty-eight acres of land, and the only indemnity respondent has against it is the lien retained by him hi his deed to J. Y. Horner for the said lot 43- Said judgment is for two hundred and seventy-two dollars and sixty-six cents, with interest from April 2,1858, a copy of said judgment is filed herewith marked ‘ A.’

“ He denies that he had any notice of the agreement of dissolution between Horner & Johnson at the time he purchased said judgments, and is informed and so answers that if he had had such notice it could in no way affect him or compel him to resort alone to the said Horner for the payment thereof.

“Respondent denies that he is liable to complainant in any way for anything in the settlement of the partnership accounts of Horner & Johnson.

“Respondent denies that said judgments should be credited with any sums collected by Amiss & Loomis, or either of them on collaterals placed 'in their hands as such, except *638only so much as they may have actually paid over to the plaintiffs in said executions, and all such lias already been credited.

“ Respondent is unable to state at this late day the exact sums that lie paid for said judgments, but paid nearly or quite the face of them. He may have obtained some small discount on some of them by paying ready cash, but he cannot now say how much; said judgments were liens on the one hundred and thirty-eight acres which was very valuable, and amply sufficient for the payment of all of them, and the holders were not willing to discount them much; and he denies that he is not entitled to enforce the said judgments for more than he actually paid, but says he is entitled to enforce them for the full amount remaining unpaid when he purchased them. Ho was compelled to purchase them to prevent legal proceedings from being commenced to enforce them against his land; and respondent would never have purchased the said judgments, or any of them, had he not been informed and believed that the same constituted liens upon the one hundred and thirty-eight acres of land so purchased by him as aforesaid; and he did not purchase them or know of their existence until he was notified by the attorneys for some of said creditors that they proposed to resort to their lien upon respondent’s said land for the satisfaction of said judgments.

“Respondent having fully answered prays that the injunction granted in this cause be dismissed; that the original bill and amended bill may be dismissed, and that he may recover his costs about his defense in this behalf expended.

“James L. Morehead,

“By O. C. Cole# W. L. Cole, his Counsel.”

This answer is sworn to. '

The deed from James Y. Horner and wife to John W. Horner, trustee for Mary Ilorner his wife, mentioned in and filed with the answer of said Morehead as an exhibit is dated the 25th day of April, 1865, the consideration is love and affection and one dollar, and it conveys to John W. Horner trustee as aforesaid, “ all of a certain house and lot in the town of Parkersburg in Stephenson’s addition, and being the same conveyed by S. Smith to James L. Morehead, and sold *639by him- to J. Y. Horner to have and to hold the same to the party of the second part, in trust for the sole and separate use and benefit of the said Mary Horner, the wife of the said trustee during her natural life free from the debts and liabilities of said trustee husband of said Mary, subject only to the condition, that if there is any judgments against said trustee that will be a lien on the land that the parties of the first part sold to James L. Morehead, that then there'is a special lien retained to said Morehead on this house and lot to indemnify him against said judgment liens or any liability that may be against said land. And it is further-that if at any time the said Mary Horner, wife of said trustee, should desire to sell said house and lot and invest the proceeds in other real estate, the said trustee shall upon the written request of said Mary, sell and convey said property, in which conveyance said Mary shall join; and the proceeds arising from said sale shall be at once invested in other real estate to be held by said trustee for the separate use and benefit of said Mary free from all liabilities, right or title of said trustee, and upon further trust and confidence that at the death of said Mary Horner, the property herein conveyed or such as may bo purchased with the proceeds arising from such sale as herein provided for shall vest in fee simple in the children of said Mary by her said husband trustee as aforesaid, now born or to be hereafter born. This deed was acknowledged on the 1st day of May, 1866, admitted to record in the recorder’s office of ~Wood county on the 18th day of October, 1865. The deed from James L. Morehead and wife to James Y. Horner filed with the answer of said More-head as an exhibit is dated the 8th day of September, 1865. The consideration o'f this deed on its face is two thousand dollars in hand paid and it conveys to the said James Y. Horner ‘ all that certain lot or parcel of land situated and being in the city of Parkersburg, in what is known as Stephenson’s addition in said town on Market street being one-half of the lot known as lot number 43,’ and bounded .by metes and bounds stated in the deed. ‘Being the same lot conveyed to the said Morehead, by Samuel Smith and Mary his wife and on which J. W. Horner now resides. This deed contains this further covenant and provisions to-wit: *640‘And the said pai’ties of the first part covenant to, and with the said parties of the second part, that they will warrant generally the property hereby conveyed. Provided howeyer, whereas the property hereby conveyed, was sold to the said Iiorner to the said Morehead aud was accepted by him the said J. Y. Horner as and in part payment to-wit: Of the sum of two thousand dollars of the purchase-money of a tract of land containing one hundred and thirty-eight acres, situated in Wood county, on the Parkersburg and Williamstown road sold by him the said J. Y. Horner to the said More-head, and which tract of land was conveyed to the said J. Y. Horner by the said J. W. Plorner; and whereas, it appearing that there are judgments standing on the records of the court of Wood county, against the said J. W. Horner and the firm of Horner & Johnson of which the said J. W. Horner was a member which so far as the said records disclose are still unsatisfied. How therefore, it is especially provided that a lien be and is hereby saved and reserved upon said property hereby conveyed, to indemnify him the said Morehead, against the said judgments and against any loss or damage that may be occasioned to him the said Morehead, his heirs or assigns, by reason of any prior liens upon said land, so purchased by him from the said J. Y. Horner, founded upon the said judgments or any of them against the said J. W. Horner or the said Horner & Johnson and to compensate him, the said Morehead, so far as may be necessary, and so far as the property hereby conveyed shall avail for the purpose; for any loss to which he may at any time be subjected, by reason of such judgments and the liens thereof, or any of them, said liens hereby reserved to the said Morehead to subsist and continue upon the said property hereby convejmd, until all liability of the said one hundred and thirty acres of land purchased by the said Morehead or the said J. Y. Horner, as aforesaid, to the liens of said judgments or any of them, shall have wholly ceased and been determined.”

This deed was acknowledged on the 5th day of October, 1865, and admitted to record in the recorder’s office of Wood county on the 18th day of October, 1865.

The deed from James Y. Horner and wite to James L. *641Morehead filed with said Morehead’s answer as exhibit No. 8 is dated the 7th day of September, 1865. The consideration of this deed upon its face is nine thousand six hundred and sixty dollars and the deed grants to the said Morehead one hundred and thirty-eight acres of land in Wood county in the State of "West Virginia, on the east side of the Ohio river and bounded as stated in said deed. This deed specifies that “of the consideration aforesaid, there remains yet to be paid the sum of twenty-fourlnmdrcd dollars, for which said James L. Morehead has this day executed to the said James Y. Horner his eight several single bills bearing interest from the 1st day of March, 1860, until paid; said single bills being payable simi-annually on the 1st day of March, and September, 1866, 1867, 1868 and 1869. Also in satisfaction of two thousand dollars more of said nine thousand six hundred and sixty dollars of the purchase-money as aforesaid, there remains to be performed the covenants of the said James L. Morehead to convey with covenants of general warrant}', one house and lot in the town oí Parkersburg aforesaid in the county and State aforesaid, situated on Market street, it being the house and lot purchased by said Morehead of the Ilev. Samuel Smith, to the said James Y. Horner. For the payment due; and the performance of the covenants of the said Morehead to convey as aforesaid, a lien is hereby retained upon the property herein conveyed. The said James Y. Horner and Mary A. his wife covenant that they will warrant generally the property hereby conveyed,”

The agreements between James Y. Horner and James L. Morehead referred to in his said answer are as follows:

“Agreement made this 7th clay of September, 1865, between James Y. Horner, of the county of Harrison and State of West Virginia, of the one part, and James L. Morehead, of the county of Wood and State aforesaid of the other part:

“Whereas, by written contract bearing date on the 3d day of January, 1860, the said Horner did sell to the said More-head a certain tract or parcel of land situated in the county of Wood and State aforesaid, on the Ohio river, containing one hundred and thirty-eight acres, at the price of seventy dollars per acre, of which part has been heretofore paid, and the residue remains unpaid; and whereas since said contract *642was made it lias been ascertained that there is a defect in the title to sixty acres, parcel of said land, in this, that said sixty acres was the property of Mrs. Emma G. Jackson, the wife of John J. Jackson, and upon her death descended (subject to the estate by the courtesy of her said'husband) upon her heirs-at-law, seven in number, and three of said heirs never .having assigned or released their respective shares, the title to three-sevenths of said sixty acres remains outstanding in them, and not having been vested in the said James Y’. Hor-ner by deed under which he claims title to the same cannot be transferred and vested in the said Morehead by any deed that the said Horner can now make; and whereas it is agreed that a portion of purchase-money of said land remaining unpaid, shall be now paid by the said Morehead to the said Horner, and that the residue the sum of two thousand dollars shall be retained in the hands of the said Morehead by way of indemnity against the claims of the three heirs or the saidMrs. Jackson, whose shares have never been released; and whereas it has been, since said sale, ascertained that there are judgments upon the records of the court of Wood comity figainst John V. Horner, of whom the said James Y. Horner purchased said land,' and against the firm of Horner & Johnson, of which the said John ~W. Horner was a member, which, as far as the records disclose, remain unsatisfied, and the said Morehead desires some indemnity to be given against the same. How, therefore, this agreement witnesseth :

“That the said Morehead pays in hand to the said Horner the sum of seven hundred and sixty-five dollars and thirty-three cents, the receipt whereof is hereby acknowledged, and executes to the 'said Horner his single bills, eight in number, each for the sum of three hundred dollars, bearing interest from the 1st of March, 1860 till paid, payable on the 1st days of March and September, in the years 1866, 1867, 1868 and 1869, and are dated on the 7th day of September, 1865, the receipt of which said eight single bills is hereby acknowledged by the said Horner. It is further agreed that of the principal of the said eight single bills, the said More-head shall retain and hold in his hands the sum of two thousand dollars by way of indemnity against the claims of the said three heirs of the said Mrs. E. G. Jackson, in whom the *643title to the said tliree-sevenths of said sixty acres of land remains outstanding, until it can be determined whether the said Morehead shall be subjected to the loss of any portion of said land, and in case of such loss, to make compensation to said Morehead for such loss according to law, and the right of the parties, but in the meantime the said Morehead agrees to pay the interest on said single bills as follows, to-wit: the interest on each of said single bills as the same would fall due up to the time of its maturity, from the said 1st of March, 1860, at the time when the same so falls due respectively. And it is agreed that the said Ilorner may, in the deeds of conveyance to be executed by him to the said Morehead for the said land, retain a vendor’s lien for the security of the said sums of two thousand four hundred dollars, with interest as aforesaid, which said deed-is to be executed and delivered to the said Morehead within twenty days from the date hereof ; and whereas the said Morehead is bound by said contract to convey to said Ilorner a certain lot of ground in Parkers-burg, known as lot Ho. 43 in Stephenson’s addition to the town of Parkersburg, fronting thirty-six feet on Market street, being the same property on which John W. Horner now resides, the said property having been agreed to be taken and accepted by the said Horner in part payment of the price of said land, it is further agreed that in said deed for said lot, which the said Morehead is to execute and deliver for record within ten days from the date hereof, the said Morehead may retain a lien upon the face of said deed to indemnify him against any loss or damage by reason of the judgments aforesaid against the said John W. Iloruer and Horner & Johnson.

“And by way of further indemnity the said J. Y. Ilorner agrees to and binds himself to reseiwe a similar lien in a deed from him to J. W. Horner, in trust for the wife and children of the said J. W. Ilorner, for forty acres of land situated in the county of’Wood, adjoining the land sold to the said Morehead, which said deed reserving said lien the said Hor-ner binds himself to execute and deliver for record within twenty days from date hereof. •

“Witness the hands of the parties the day and year first above written.

“ J. Y. IIoRNER.

“ J. L. MoRehead.”

*644This agreement was duly admitted to record in the recorder’s office of Wood county on the 25th of March, 1871.

“Article of agreement made and entered into this 6th day of September, 1866, by and between James Y. Horner, of Harrison county, West Virginia, of the first part, and James L. Morehead, of the county of Wood and State aforesaid, of the second part, witnesseth:

“That the said Homer, for and in consideration of the sum of fourteen hundred and forty-nine dollars and fifty cents; to him in hand paid by said Morehead, the receipt whereof is hereby acknowledged, hereby releases to said Morehead the lien retained in a certain contract between the parties hereto for the payment of eight single bills for three hundred dollars each, each bearing date on the 7th day of September, 1865, which said contract is recorded in deed book No. 24, pages 689, &c., of Wood county; and the said Morehead hereby releases said Horner from all liability that may rest upon him, ‘Horner,’ by reason or judgments docketed against John W. Horner in said Wood county, except a lien retained on a certain house and lot on Market street conveyed by James Y. Horner to John W. Horner, trustee, which said lien was and is retained for the benefit and protection of said Morehead. The said More-head also releases said Horner from all obligation except the warranty from Jackson to Horner and himself, Morehead hereby taking Jackson in lieu ol Horner as it regards the price paid by said Horner to Jackson forty-eight dollars and sixty-six; cents per acre; and this agreement is understood to be a settlement of the matter between said Horner and More-head in full as to the land in every shape. One of the single bills above mentioned is already paid, and the residue, seven single bills, are hereby canceled and returned to said More-head.

“Witness the following signatures and seals:

“J. Y. Horner, [Seal].

“J. L. Morehead. [Seal].”

This agreement was duly admitted to record in the recorder’s office of Wood county March the 29th, 1871.

The Exhibit “A” filed with the answer of said Morehead is a judgment of the county court of Wood county rendered *645in favor of the firm of Taylor, Foster ¿f* Co. v. J. W. Horner for two liundred and seventy-two dollars and sixty-six cents, debt witli interest from tire 2d day of April, 1858, till paid and costs of suit.

The answer of Amiss & Loomis to said amended bill is joint and separate and in substance the same as their answer to the original bill. It denies all the material allegations of the amended bill, so far as the same in any manner relate to them. They quote from the report of said Commissioner, Barna Powell, these words: “It is my opinion that under all the circumstances the executions against ITorncr & Johnson in favor of the defendant, in this bill, (the original bill) should in equity7 bo returned satisfied.” To this conclusion of the commissioner the said Amiss & Loomis except.

The answer to said bill and amended bill of E. B. Long & Co., Straus, Hartman, Hofflin & Co., Young, Carson & Bryant, Eislier, Boyd & Bro., Austin Boll, assignee of Eisher, Boyd & Bro., Taylor, Eoster & Co., which is joint and separate, admits the recovery of the several judgments against the said Horner & Johnson in the bill and amended bill mentioned in favor of the several parties and for the several amounts respectively in the complainant’s bill mentioned; and they sayr that they assigned the said judgments to their co-defendant, Morehead, for a valuable consideration long before the institution of the suit; and allege that they have no personal knowledge of the various other allegations in the complainant’s bill, but refer to the answer of their co-defendant, Morehead, which they believe contains a correct and true answer to the various allegations of the complainant’s bill; and they adopt the said answer of Morehead as their own.

Commissioner Barna Powell in his report hereinbetore mentioned finds the judgment of E. B. Long & Co. against Horner & Johnson to stand as follows: Judgment confirmed at August term of Wood county court for 1858 for two hundred and seventy-eight dollars and fifly-three cents, with interest on one hundred and thirty-nine dollars and twenty-six cents from May 12, 1858, and on one hundred and thirty-nine dollars and twenty-six cents from June 12,1858; plaintiff’s costs to date, nine dollars and eighty-three cents; *646credit by casli paid by J. W. Ilorner September 11, 1865, one hundred and twenty-five dollars; credit by over-paying another execution September 12, 1865, thirty-two dollars - and seventy-two cents. Also the judgment of Straus, Hartman, Hofflin f Co. v. Ilorner ft Johnson as follows: Judgment October term, 1858, of "Wood county court for throe hundred and thirty-six dollars and sixty-three cents, with interest from April 15, 1858; plaintiff’s costs to date, eight dollars and sixty-seven cents; credit by cash September 12, 1865, by J. "W. Ilorner. Also the judgment of Young, Carson Bryant v. Ilorner Johnson as follows: Judgment at the November term, 1858, of the Wood county court for three hundred and thirty-six dollars and sixty-three cents, with interest from April 15, 1858; plaintiff’s costs, twelve dollars and thirty-four cents. He further says, that Horner paid Amiss five hundred dollars in September, 1865, from which the above credits are probably taken. lie also reports that it does not appear that George Loomis is in any manner liable as attorney or otherwise either to the plaintiff or either of the defendants, he having been simply a law partner of M. P. Amiss, and the management of these causes the receipt of all moneys pertaining to them was by said M. P. Amiss.

But the said commissioner as to said three last named judgments and executions thereon further reports among other things as follows: “In view of the facts disclosed by the evidence, I am clearly of the opinion that a sufficient amount of goods was seized by Sheriff Harwood in 1858 to satisfy the claims and judgments against Horner & Johnson, had they been properly cared for and disposed of in a prudent and business-like manner; and as executions in favor of these defendants were at the time in the sheriff’s hands they, as well as the sheriff were de facto trustees for the proper disposition of the property. It is my opinion, that under all the circumstances the executions against Ilorner & Johnson in favor of the defendants in this bill should in equity be returned satisfied.” To this conclusion of said commissioner it 'seems exceptions were filed by defendants and perhaps in some other respects which does not clearly appear by the record as before us. And said commissioner *647in his said report, further says: “I am specially requested by Horner to report upon another branch of the ease, viz.: J. L. Morehead, one of the defendants, claims, and it is conceded by all parties, that he is the beneficiary party in what may, if anything, be due on these judgments. Morehead purchased land formerly owned by J. W. Horner, upon which there were liens created by law in favor of these defendants. - When Morehead purchased the claims he was indemnified against these liens by a security in shape of a lien resei’ved by J. Y. Horner on a house and lot conveyed by John W. Horner, trusted for his wife and children. These judgments according to Morehead’s evidence were purchased by him for less than their face, but he declined to say what he did pay for them. Whether Morehead has a right in equity to purchase these judgments and compel Horner to pay more for them than it cost Morehead to release the liens on his land, if the defendants are entitled to recover at all, is a legal question which I leave to the court to decide.”

A large quantity of evidence is filed in the cause, but the result of it and the evidence is referred to in the opinion of the Court as far as deemed necessary.

On the 16th day of April 1879 the circuit court of the said county of Wood made and entered a decree in the cause as follows :

“This cause came on to be finally heard this day upon the original and amended bills and the exhibits therewith filed; the answers of the several defendants to the original bill, and exhibits filed therewith; the demurrer to amended bill, and also the answer of all the defendants to the amended hill and exhibits with said answers, except the defendants K.. E. Hor-ner and G-eorge Loomis, who have failed to answer, and the process having been duly served upon them upon the bill taken for confessed, as to them, upon the orders and decrees heretofore made herein, and upon the report of the commissioner, and fhe exceptions of the defendants thereto, and the testimony taken in said cause, and irpon the motion of defendants to dissolve the amended bill, and upon the mandate of the Supreme Court of Appeals, and was argued by counsel, upon consideration whereof the court is of opinion to *648and does hereby overrule the demurrer to the said amended bill, .and the motion of defendants to dismiss the same; the court is further of opinion that, the complainant is not entitled to the relief prayed for in said bill and amended bill, and is of opinion to and does sustain the exceptions of the defendant to the report of said commissioner. Itis therefore ordered that the said bill and amended bill be and the same are hereby dismissed, and that -the defendants, except R. E. Horner, do recover of the complainants their costs by them about their defense in this behalf expended.

“And by consent of the defendants the sum of thirty-two dollars and thirty-seven cents, mentioned in the commissioner's report, as a proper credit upon the execution of E. B. Long & Co. against Horner & Johnson as ot the 12th day of September, 1865, is to be credited thereon as of that date,” &c., &c.

.From and to the last named decree and the decree of the 22d day of January 1879, in the circuit court of Wood county the plaintiff upon this petition and assignment of error therein obtained from this Court an appeal and supersedeas.

John A. Hutchinson for appellant cited the following authorities :

4 Cl. & Fin. 207; 6 Eng. Com. Law, 642; 32 N. Y. 501; 56 Id. 402; 6 Id., 204; 67 Id. 95; 2 Lead. Cas. Eq. 277; 23 Smith (Pa.) 489; 9 Barr. 498 ; 2 M. & S. 195; 2 Wms. (Ver.) 93; 2 Barb. ch. 627; Id. 338; 6 G-ratt. 310; 2 Lead. Cas. Eq. 1345; 1 Lead. Cas. Eq. 147; 10 Clarke 164 ; 6 Bing. 306 ; 35 Mich. 42; 15 Wise. 270; 6 Graft. 526; 25 Graft. 211; 17 N. J. Eq. 198 ; 2 John. 'Cliy. 561; Brandt on Sureties § 378; 1 Pa. St. 361; 7 Watts 20; 11 W. Ya. 673; 10 Graft. 164; 4 Yes. 824.

W. L. Cole for appellee.