McClaskey v. O'Brien

Citations

• 16 W. Va. 791
• 1879 W. Va. LEXIS 66

Syllabus

<p>1. When exceptions to a report of a commissioner are filed in a canse, ordinarily the clerk should endorse thereon the time when filed, or otherwise something should appear by which the Appellate Court may be able to identify the exceptions passed upon by the court below. But for the purpose of identifying the exceptions the Appellate Court may look into the whole record.</p> <p>2. If a judgment is obtained which is a lien on the lands of the judgment-debtor, and the judgment-debtor sells and conveys part of it, generally the judgment-debtor should-be required in the first instance to exhaust the unsold portion.</p> <p>3. Generally where land subject to an encumbrance is sold successively in parcels, each of them will be liable in the inverse order of alienation. To this general rule there are exceptions under circumstances.</p> <p>4. When a conveyance of part of the judgment-debtor’s land covered by an encumbrance contains a covenant of warranty, such covenant is generally taken as prima fade evidence of the contract of the vendor and the vendee that the burden of the encumbrance should be borne exclusively by the residue of the lands. And perhaps where there is not a covenant of general warranty, the same rule snould prevail, unless there is evidence of an opposite design.</p> <p>5. But when there is a covenant of general warranty, if the vendee of a part of the lands covered by an encumbrance agrees in terms or by implication, to be answerable for the encumbrance-debt in consideration of a corresponding deduction from the purchase-money, the equity is reversed.</p> <p>6. If one of two or more tracts of land, which are subject to a judgment-lien, be sold and conveyed by the judgment-debtor, and the deed has been duly recorded and the purchase-money paid, a subsequent judgment-creditor is not entitled to subrogation to the jirior lien, because such a decree -would conflict with the equity of the purchaser. Andjin such ease, where the land sold is subject to an e