Vance v. Evans

1. A decree between co-defendants can only be based upon the pleadings and proofs between the complainant and defendant. 2. Where a case is made out between defendants by evidence arising by pleadings and proofs between the complainant and de- ■ fendants, a court of equity should render a decree between the co-defendants. 3. A defendant, who by his answer asks the court to make inquiries through its commissioner, more extended than the statements in the bill might justify, and. upon such inquiry to decree between him and a co-defendant, is thereby precluded in the appellate court from assigning as error such enlarged extent of inquiry, or that a decree between. co-defendants was based thereon. 4. It is proper, to charge interest upon estimated rents and profits, where the land is occupied by the consent of the owner, or ■ ' where one tenant in common holds and enjoys the whole land by the consent of his co-tenant. 5. As a general rule, where it is necessary to adjudicate the rights ■ ■ of an assignee, the assignor must be made a party to the cause; but there is this exception to this general rule, that when the assignment is absolute and unconditional, leaving no (equitable interest whatever in the assignor, and the extent and validity of the assignment is neither doubted nor denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the assignor a party.

An appeal, by William Conway, one of the defendants below, from several decrees of the circuit court of the county of Monongalia, rendered in a cause in chancery, in which Addison S. Vance was complainant, and George D. Evans and others were defendants. Hon. John A. Dille, formerly Judge of said circuit court, rendered the decrees complained of. Green, PRESIDENT, furnishes the following statement of the case: The record in this case consists of more than seven hundred and fifty pages of. manuscript. In stating the case, I shall set forth only so much of this voluminous record, as is necessary to the full understanding of the matters in controversy in this Court, omitting many matters which have been in controversy in the court below, but which have been settled by the decrees of the court, and which settlement has been acquiesced in by the parties, and also other matters which are still in controversy before this Court, but which, in the view taken by us of the case, it is unnecessary to decide. So much only of such matters will be stated, as is necessary to comprehend fully, why we regard such matters as irrelevant and unnecessary to be decided in this case. On April 3, 1862, Brown & Woodley obtained a judgment in the circuit court of Monongalia county against George D. Evans and another; and on July 29, 1862, William G. Brown recovered a judgment in the county court of said county against said Evans and another. At the September term 1862, five diiferent judgments were obtained against said Evans, or against him and ■ others, all of which judgments were promptly docketed. ■The defendants in these several judgments, other than Evans, were insolvent, with the exception of the plaintiff in this cause. After the commencement of the September term 1862, of the circuit court of Monongalia county, two deeds of trust, executed by Evans, were admitted to record in the clerk’s office of the county court of Monon-galia county, and one of them, which conveyed some land in Marion county, in the .clerk’s office of the county court of that county. By one of these deeds of trust Evans conveyed to Warren C. Dorsey, his household and ' kitchen furniture, and all his personal estate, and certain real estate in Monongalia county, in trust to secure certain specified debts. By the other deed of trust, Evans conveyed to Benjamin M. Dorsey certain bank stock and certain real estate in Monongalia and Marion counties, in trust to secure certain debts, and among them a debt of about $3,000.00 to William Conway. Among the judgments, rendered against Evans and others, at the September term 1862, of the circuit court of Monongalia county, was one in favor of the Frost-burg bank against said Evans and five others, including Addison S. "Vance, the plaintiff, for $1,502.03, with interest on $1,500.00, a part thereof, from April 17, 1861, and costs. The foundation of this judgment was a negotiable note given by one Scott, and endorsed by all the other defendants, against whom said judgment was rendered, including said Addison S. Vance, who was the last endorser; execution issued on said judgment, and said Addison S. Vance was forced to pay it on April 27, 1865. John H. Hoffman, who was substituted as trustee in place of Warren C. Dorsey, advertised the property for sale under his deed of trust. On January 9, 1867 Addison 8. Vance filed his bill in this cause, setting forth all the above facts, and stating that all the other defendants, except Evans, in all said judgments, were insolvent, claiming that he had a right to be substituted to the lien of the Frostburg bank on the real and personal property of Evans; and that this lien was superior to that created by the said deeds of trust, "which were not recorded till after the term commenced at which said judgment -was rendered, asking that Hoffman be enjoined from making said .sale; that the amount due on said .judgment debts,'as well as on the debts named in the deed of trust, be ascertained; that Evans’s property be made liable tp his, plaintiff’s, claim, and for general relief. He made parties defendants all the plaintiffs and defendants in said judgments, all the creditors named in these deeds of trust, and the personal representatives of such of them as were dead, Basset) who had bought one" of these tracts of land of Evans since the giving of the deeds of trust, and the trustee, and substituted trustee, in these deeds of trust. The injunction prayed for was awarded. In April 1867 William Conway answered, alleging, that when said deeds of trust were executed, Evans was indebted to him $3,000.00, or more, for money paid out for his use, and further stating, that he and Evans had bought of one Willey, a tract of land on Plum run, Marion county, for which each of them paid $1,000.00 as the cash payment, and gave their bond for the balance of purchase money, $5,000.00; that he had made permanent improvements on this farm which cost him at least $650.00; that this $5,000.00 bond had been assigned to one Chisler; and that he had paid his executor on it at different.times $4,700.00, for which he produced receipts and that he had paid Chisler before his death, on April 6, 1856, $300.00 but had lost his receipt; that he had paid taxes on this land to the amount of $234.22, and that he holds two bonds of Evans to John Dawson of $250.00 each, given for the purchase of the Dawson farm owned by Evans. He produces these bonds, but their is no assignment of them to him. And he asks that the court will adjust and adjudicate the difficulties arising in this cause between him and the plaintiff and other contestants, and if deemed necessary he be permitted to file a cross-bill. Hé afterwards filed a supplemental answer, claiming a further payment of $150.00 on April 6, 1855, on the bond of Evans & Conway to Willey of $5,000.00, which he states he omitted by mistake in his answer. Conway took a number of depositions intended to sustain these allegations in his answers. And on May 8, 1867, replications having been filed to all the answers, and the cause being matured for hearing, the court decreed that the cause be referred to a commissioner to ascertain and report the debts due under the .deed of trust; the judgments against Evans, and their priorities, the real and personal estate of Evans, and the annual value of the real estate, the balance due to Chisler’s ex’or on the obligation of Evans & Conway to Willey for purchase of the Plum run farm, and what portion of the purchase money of said farm had been paid by each of these parties; and to settle the accounts of Evans & Conway, and ascertain what, if anything, is due to Conway, and also what amount of improvements Conway has put on the Plum run farm and what taxes he has paid on it, 'and what is the value of the rents and profits of this farm since it was bought by Evans & Conway, and who has received them. At the March term 1870 Chis-ler’s ex’or, who has been by order of the court made a defendant, filed his answer in which he states, that this bond of Evans & Conway for $5,000.00 to Willey, given for the balance due on the purchase of the Plum run farm, was assigned by Willey to George S. Bacon on September 2, 1855, and on December 25, 1855 George S. Bacon assigned this bond to his testator John S. Chisler, “ reserving all interest that may have accrued prior to the first day of April 1855,” that the balance due him, the executor of Chisler, on this bond was on August 31, 1865 $1,068.00; and that it is secured by a vendor’s lien on the Plum run farm. The commissioner, William P. Willey, under said order, made1 May 3867, made his report October 1, 1869. This report was in many respects imperfect, and did not lie in the office of the commissioner the time required by law. He does not report accurately the amount, of the debts, secured by the deeds of trust, executed by Evans, but states about the amount of the principal of some of these debts, without stating from what time they bear interest ; and other of these debts he excludes, because of want of proof of the amount due on them, though he says they probably unpaid. He reports but two judgments, though the bill and exhibits show their were many other judgments against him; the real estate owned by Evans and the rental value thereof is very imperfectly reported, some tracts owned by Evans, as shown in the cause, being omitted, and others not pwned by him being included ; and reports no personal estate as owned by Evans, which had not been disposed of, though he apparently did own other personal estate. "With reference to the subject matter in controversy now belore this Court, he reports as follows: Evans & Conway Accounts. “ 5th. That the masters also settle the accounts of the said George D. Evans and William Conway, and ascertain what sum, if any, is still due from the former to the latter.” In response to the above clause of the order the commissioner reports, that while there is no adequate proof of a partnership, or the exact terms upon which the said Evans & Conway were doing business together from the year 1854 to the fall of 1862, it is nevertheless well established by the testimony, that during the period aforesaid the said Evans & Conway were engaged jointly in buying and selling stock, which stock was kept and grazed to some extent on the several farms mentioned in these proceedings, and the said parties shared the profits according to some arrangements had between themselves, the terms of which do not appear by any written contract or the testimony in the case. It is also adduced, that during a part of this time other persons were associated with them, or with the said Evans, and sharing the profits of the business. The annual gross profits of the business as between the said Evans & Conway for several years are given in the testimony of defendant Conway, but subject to certain losses and other contingencies, and so affected by other testimony, as to preclude any intelligent settlement of accounts between them. Under the circumstances the commissionercan only say, that in consequence of the insufficient data furnished by the evidence, the absence of of any contract of partnership, or other instrument, or evidence showing the terms of the business, the inaccuracy of the evidence as to the amounts of the profits of said business already shared by each, and of the amount of .capital furnished by each, and how the profits of the several farms, used by them in their business, were shared by each, it is entirely impracticable to attempt to settle the accounts of said Evans & Conway, considered as partners, during the period running from 1854 to 1862 inclusive. The commissioner can only report, that during the period aforesaid the said Evans & Conway were buying and selling stock together under an arrangement, the terms of which are not ascertained; that the evidence seems to sustain the conclusion that the said Evans had furnished most, if not all, the capital for the business, and the said Conway performed most of the labor; that they were using the several farms held by t-bem for their common business in grazing what stock they had on hand, and raising what grain they needed; that the two Furbee, and the Dawson farms were held by Evans exclusively, the Plum run farm by Evans & Conway equally, and the old Rawley Evans farm was held by Conway, with the exception of a share of one-ninth, which was held by Evans; that Conway principally superintended and farmed these several tracts, as far as there was any farming done, made repairs and permanent improvements on all of them, amounting in value to $2,000.00 or $3,000.00. The above is as full a statement of the transactions between the said Evans & Conway during the period from 1854 to 1862, as the commissioner is able to make from the data furnished him. The partnership or business arrangement between the parties, under which they had been doing business from the year 1854, ceased about the time of the execution of the deeds of trust by the said Evans to Benj. M. and Warren C. Dorsey, in August 1862 and from that time only the- commissioner reports the following accounts between the said parties.” Then follows the account in which he makes the charges of Evans against Conway, since August 1862, $3,278.87, a' large portion of which is for rents of lands upon which no interest is allowed; the charges of Conway against Evans since August 1862, including charges for taxes paid, and improvements of land, amounted to $2,033.87, exclusive of interest, the difference in favor of Evans in the principal of these accounts since August 1862, being $1,245.00. And charging Evans with the $3,000.00 named in the deed of trust, and interest thereon to June 1, 1869, making $4,215.00, leaving a a balance in favor of Conway on June 1, 1869, of $2,970.00. This statement did not include payments made by Conway since August 1862 on the Plum run farm, owned by Conway & Evans, nor the taxes he had paid on said land, nor his improvements upon said land; nor does it include the rents of said land since August 1862, received by Conway. There follows however a statement of these matters, but it only shows the aggregate of the payments made by each party since 1854, not distinguishing clearly those made before and since August 1862. According to this statement, the aggregate amount of payments, made by Conway with interest to June 1, 1869, was $6,999.56, of which it appears that including interest $888.33 only had been paid prior to August 1862. The payments made by Evans all prior to that date with like interest, amounted to $4,277.33. This did not include $960.00 in cash, claimed to have been paid by him January 6, 1854. Including this payment, with interest thereon to June 1, 1869, his entire payments would have been $6,135.33. Taxespaidby Conway on this land since August 1862, amounted to $385.15; and his improvements on the same almost, if not quite all of them, since August 1862, amounted to $651.00. The rents of this land since August 1862, charged to Conway, are estimated at $350.00 a year; before that time, it is reported, they purchased this farm jointly. The total value of these rents with interest since August 1862 are estimated at $2,789.50. Exceptions were filed to this report by all parties; and on November 12, 1869, the court set it aside, and re-committed the cause to a commissioner to ascertain and report on the various subjects named in the decree of May term, 1867, and in addition thereto to ascertain and report the amount and character of the original obligations executed by the defendants, George D. Evans and William L. Conway to William J. Willey, assigned by said Willey to John S. Chisler, deceased ; what sums of money have been paid on same by said Evans & Conway, or either of them, either to said Willey before said assignment to said John S. Chisler, before his decease, or to John J. Chisler, as executor of said John S. Chisler, since the decease of said John S. Chisler; and also to ascertain what portion of the down payment of $2,000.00 on the five hundred acres of land, in the bill and proceedings mentioned, was paid by said Evans & Conway respectively, and when and to whom paid; and that said master ascertain what amount, if any, is due from said defendant George D. Evans, to said defendant William L. Conway on all accounts whatsoever; and that said master also ascertain and report what amount of funds, arising from the proceeds of the sale of the lands in said cause, has come into the hands of the receiver of this court; what amount of same has been disbursed by said receiver and in what account; and what funds still remain in the hands of said receiver, and what amount is still due on the judgment and claims against said defendant George I). Evans; together with anything else deemed pertinent by said master, or specially required by any of the parties thereto. On January 27, 1870, commissioner Moreland made his report under this order. Such portions of this, as are necessary to understand the subjects of controversy in this cause now before this Court, are. given below with the exceptions to such portions of the i’eport: “ The commissioner reports that from the evidence in the cause, the provision in the said deed of trust to Benjamin M. Dorsey, purporting to secure to William Conway ‘ the sum of about $3,000.00/ was only made and intended to secure to said Conway so much of the unpaid purchase money on the Plum run farm, as the said Conway might have to pay for said Evans, and that in fact the said Evans did not then owe the said Conway any debt, and the commissioner therefore disallows said claim under this head any further than to allow said Conway a lien for $451.45, the amount the commissioner finds said Conway has overpaid on said Plum run farm, as shown under another head of this report.” Exceptions were endorsed on the foregoing report by the defendant William Conway as follows: First Exception by Conway. The defendant William Conway excepts to so much of the foregoing report of commissioner Moreland as decides or determines, that the said George D. Evans, at the date of the deed of trust from said Evans to Benjamin M. Dorsey, as trustee, was not indebted to the said Conway in the sum of about $3,000.00, or auy part thereof; and that the said deed of trust to Benjamin M. Dorsey, as trustee, in the bill, proceedings, and said report mentioned, purporting to secure said Conway “ the sum of about $3,000.00,” was only made and intended to secure to said Conway so much of the unpaid purchase money on the Plum run farm, as said Conway might have to pay for said Evans, - Evans farms, from 1854 to 1862.$ 3,900 95 2. Half rent of Plum run farm since 1862. 1,784 20 3. Kent of lower Furbee farm since 1862. 739 80 4. One-ninth of rent of Rawley Evans farm since 1862.. 147 69 5. Rent of upper Furbee farm since 1862. 1,479 60 6. Rent of Dawson farm since 1862. 876 66 7. Half of Jafrett judgment, and loss on cattle, &c. 2,621 50 8. 'Amount of account since partnership. 1,898 87 Whole amt. of Evans’s charges against Conway.813,449 27 Grand Recapitulation. Whole amount charged against Conway...$13,449 27 Whole amount charged against Evans. 11,496 71 Balance in favor of Evans as against Conway.$ 1,952 56 To this report William Conway, by his counsel, filed these further exceptions: “ The said commissioner, under the fifth heading of his said report,” says, he “ charges George D. Evans with the balance due from Evans to Conway on the payments made by them on the Plum run farm, according to the following basis and calculation.” This part of the said commissioner’s report is excepted to, as being erroneous and unjust in the following particulars, which are hereinafter specified, to-wit: 1st. Under the head of “ Paid by George I). Evans,” said commissioner allows and credits said Evans with $1,960.00 of down payment of purchase money, which should only have been $1,000.00, as Conway paid Wil-ley $960.00 and $40.00 of said down payment. (See evidence of said Conway.) This $1,960.00 credit is allowed Evans, as of February 24, 1854, as being paid to William J. Willey, and interest is also allowed said Evans on the whole $1,960.00, when it should only have been interest on $1,000.00. 2d. Under the head of “Paid by William Conway,” the said commissioner fails to allow or credit said Conway with $1,000.00, the half of said down payment paid to said Willey. He only allows said Conway with $40.00 thereof as being paid January 6, 1854, with interest from that date, when he should have also allowed and credited Conway with $960.00 more of said down payment, with interest from 24th of February 1854. Under the same head, said commissioner ascertains the amount paid by said Conway to be (of purchase money) $7,145.00. This amount is erroneous; it should have been more. The $960.00 aforesaid, with its interest from the time aforesaid, should have been allowed to said Conway in addition, and also $400.00, $100.00 and $200.00 credited on said purchase money obligation, and admitted by said Chis-ler, of which no account is taken by him in his said report. The commissioner also ascertains the balance due from' Evans to Conway, under this head, to be $451.45. This is erroneous, for the reason that Conway is not allowed for the payments aforesaid, with interest. 3d. Under the head of “ The commissioner charges Geo. I). Evans with the following items of account/’ the commissioner erroneously failed to charge Evans with the two Dawson purchase money notes, and failed to charge said Evans with the price and value of building by Conway of dwelling-house and other out-buildings, erected by Conway on the upper Furbee farm as it is called, being the Furbee tract that contains two hundred acres, or upwards, (See evidence of Conway and S. T. Gooch and others on this subject.) Yet'the commissioner charges Conway under another head erroneously with the annual rent of said farm, or rather the one-half of annual rent of the same, up to September 1862, and for the whole of the rent of the same subsequently and up to September 1868. The commissioner under this head also erroneously charges said Evans with but one-half of receipt marked A. E. as of 1867. He should, instead of charging said Evans with one-half of said receipt (which is $1,750.00), have charged Evans with $3,500.00, the whole amount of said receipt. (See receipt and Conway’s evidence on that subject.) 4th. Under the head of, “The commissioner also charges Geo. D. Evans with Conway’s share of profits of partnership, &c., which, according to the evidence Evans got,” commissioner ascertains the amount to be $22,987.50. The commissioner then, in contradiction of this, and erroneously, only charges said Evans with 25 per centum of this amount, or in other words one-fourth thereof, which is $5,746.87, when it should have been largely over that amount, according to the evidence of Conway and others on this subject ; and the report fails to ascertain the profits further back than 3855. Evans, instead of being charged with the one-fourth of said $22,987.50 received by him, should have been charged with the one-half thereof, that is to say, $11,493.75. 5th. Under the head of “ Eeeapitulation of charges against Evans,” the commissioner makes the whole charges against Evans aggregate only $11,496,71. This is erroneous, and insufficient by several thousand dollars, because the 1st, 2d and 3d items thereof are insufficient, and less than they should be for tno reasons above stated. 6th. Under the head of “The commissioner charges William Conway with one-half the rents of upper Eurbee farm at $150.00 per annum, the lower Eurbee farm at $75.00 per annum, the Dawson farm at $175.00 per annum, and the Sawley Evans farm at $150.00 per an-num from March 1, 1855, to September 1, 1862,” the commissioner erroneously charges said Conway with $550.00 per annum for rent of these farms from March 1, 1855 to September 1, 1862, and with interest on each year’s rent from the end of the year up to said 1st of September 1870; or rather he charges Conway with one-half of said annual rents, whh interest as aforesaid, from and to the date aforesaid, and erroneously charges Conway therefor with the sum of $3,900.85. This charge against Conway is erroneous, and not warranted by the evidence, or the laws, because it is prior altogether to the date of said deed of trust to said Benjamin M. Dorsey, in which Evans acknowledged his indebtedness to Conway of about $3,000.00; because also, by the arrangement and contract of partnership of said Evans & Conway, the use of these farms was to be furnished by Evans to the partnership, and Conway was to do the business of the partnership, such as buying the cattle, superintending, &c., and the profits, without reference to the use of the farms, were to be equally divided. If Conwayijis charged with one-half of the rents ofthese farms, he should be credited with the time and labor devoted to the partnership, which is nowhere done in said report. Conway seems to have devoted nearly his whole time to the business of the partnership, and Evans but little of his time; and this seemed to be on account of Evans furnishing these farms, &c., as an offset to Conway’s time, labor, attention, <fce. (See Conway’s evidence on this subject, ánd other evidence filed with this report). This aggregate of $3,900.95 is also erroneous, because a large amount of it is made up of interest charged from the end of each year. If any part of these rent charges are correct in any view, no interest ought or could be charged, until after 1st of September 1862, the date of deed of trust, and the time when Evans & Conway ceased to do business as partners. This account for rent, if it should be charged in any form against Conway, is only a running account of partnership, and should not draw interest as charged. The charge for the annual rent of each of these farms is exorbitant, and greatly more than authorized the evidence on that subject. (See on this subject evidence of James Amos, Marcus Millan, Stephen Gooch, Charles Burgoyne, John Prichard, Thornton Billingsley, Andrew Ice, Thomas P. Boggess, Becket Wilson, Philip S. Basnett and others. Besides this, Conway, in right of his wife, during the greater part of said time was the owner of one-ninth of said Hawley Evans farm, and for this no allowance is made to Conway. 7th. Under the head of “ The commissioner charges William Conway with one-half of the annual rents of the Plum run farm, from September 1, 1862 to September 1, 1869/’ the commissioner erroneously charges Conway with $1,784.20. The commissioner erroneously ascertains this sum by charging the annual rent of said farm at $400.00, and charging interest from the end of each year. This is wrong, because the annual rent of said farm was not worth $400.00 by a large amount. (See the evidence of the witnesses cited above on this subject); and it is wrong to charge interest from the end of each year, as charged by said commissioner. This rent and interest as aforesaid is charged up to January 20, 1870. 8th. Under the head of “ The commissioner charges ¥m, Conway with the whole of the rent of the lower Furbee farm from September 1, 1862 to September 1, 1868,” the commissioner charges said Conway with $737.80. This charge is exorbitant and erroneous, because the rent charged is too much, as per the evidence of the witnesses above referred to on the subject of rents, and because the evidence of Conway &c., shows that during part of the time Evans used it, and because this farm was sold by commissioners Fleming and Sturgiss under decree in this cause in June, 1868 to James Evans, who then took possession and held it till it was sold again by said commissioners, when Craven Smith purchased it. Said commissioner also erroneously charges Conway with interest from the end of each year. 9th. Under the head of “ The commissioner charges William Conway with one-ninth of the annual rents of the Nawlev Evans farm from September 1, 1862 to 1868,” the commissioner erroneously estimates the annual value of said last named farm at $180.00 (see evidence of witnesses before cited on rents), and charges Conway with one-ninth of the rent at the rate aforesaid, with interest from the end of each year. The annual value of said farm was ngt so much as $180.0Q per year; and it is wrong to charge Conway with interest from the end of each year. 10th. Under the head of “ The commissioner charges William Conway with the whole of the annual rent of the upper Furbee farm, from September 1, 1862 to September 1, 1868,” the commissioner ascertains erroneously the annual rent of said last-named farm to be $200.00 per year. This is too much! (See evidence of witnesses above cited on rent). And the commissioner in this case also erroneously charges Conway with interest from the end of each year, and he charges rent to September 1868, when the farm was sold in June 1868 by said commissioners Fleming and Sturgiss in this cause. 11th. Under the head of “ The commissioner charges Conway with the whole of the annual rents of the Dawson farm from September 1, 1862 to January 1, 1866,” the commissioner erroneously fixes the annual value of said last-named farm at $200.00 : (See said witnesses* evidence ás to rents). This also is exorbitant; and he also erroneously charges Conway with interest on rent from the end of each year. Also the said George D. Evans used said farm in 1865 by pasturing it with some twenty-one head of cattle, till he sold it to Phillip S. Basnett, which was on the 23d day of October 1865 :■ (See answer of P. S. Basnett and the'title bond of Evans filed therewith). - The sale by Evans to Basnett was confirmed by the court in this cause. 12th. Under the head of “The commissioner charges William Conway with one-half of the following items/* the commissioner erroneously charges Conway with $2,621.50; and in fixing and making up this charge, he erroneously charges Conway with amount of Jonathan Jarrett’s judgment and interest thereon. This is wrong and unjust: (See evidence of Conway taken in the cause). 13th. Under the head of “The commissioner also charges William Conway with the following account,** the commissioner charges Conway with the sum of $1,898.87 ; and to make up this charge the commissioner charges Conway with thirly-eight head of cattle, sent from New Creek, at $700.00. This charge is erroneous, because the cattle only cost $18.00 per head, and there were only thirty-six of them, which amounts tc $048.00, and they were brought from New Creek at Conway’s costs by his son. (See evidence of Copway and his sons on this subject). 14th. Under the head of “.Recapitulation of charges against Conway,” the commissioner charges Conway erroneously with the aggregate sum of $13,449.27, which is made up of erroneous and improper sums, to which exceptions are above made and stated, and is unauthorized by the evidence in the cause. 15th. Under the head of “ Grand recapitulation,” the commissioner ascertains erroneously and unjustly, that the balance in favor of Evans as against Conway is $1,952.56. This is wrong, because the data, on which it is based, are false and incorrect, for reasons';hereinbefore stated. Conway has no credit, for the Dawson notes. From the evidence in the cause and a just, and proper settlement of accounts of Conway & Evans, the .said Evans is largely indebted to Conway. On the whole it is evident that Evans, at the date of said deed of trust, was largely indebted to Conway, and in a greater sum than $3,000.00 ; and this debt with its proper interest should be allowed to said Conway. The report of said commissioner is also excepted to, so far as it pretends to settle any accounts between Evans & Conway since the commencement, of this suit; and the settlement of the partnership between Conway & Evans has not been justly done; and it was irrelevant and improper in this cause in this form; and Conway insists that on a fair and just determination of all the matters of account in proper form, and in the proper place, said Evans is largely indebted to him. But since the termination of said partnership much time has elapsed, and it. is now difficult to adjust that matter with exact justice, even if an inquiry into the subject fully was relevant and proper. All of which is respectfully submitted for the consideration of the Court. . A. F. HaymoND, Counsel for Win. Conway. A large number of depositions were taken to support the respective pretensions of Conway & Evans, of whicli even a summary cannot be given, without making the statement of this case entirely too voluminous. ■ In delivering the opinion I will state such portions of them, as are material to the full comprehension of the views of this Court. On the 23d day of March 1870 the court overruled the exceptions to commissioner Moreland’s said report, and confirmed the same; but it appearing from Chisler’s answer, filed at that term of the court, that $700.00 of payments in addition to those allowed in. said report had been made on the $5,000.00 bond, given by Evans & Conway for the residue of the purchase money of the Plum run farm, the cause was remanded to the commissioner to ascertain, when and by whom, and to whom the same was paid, and the true balance of the purchase money due on said bond, together with any matter deemed pertinent by him, or either party might require, touching the matter of said payments. On the 10th of August 1870' commissioner Moreland made his .supplementary report under this order, in which he reports that this $700.00 was all paid by George D. Evans to JohnS.Chisler; $400.00 on July'21, 1860; $100.00 February 5, 1862; and the residue, $200.00 on May 12,1862; and he reports that in his former report he improperly allowed a credit of $300.00 to William Conway, as paid to John S. Chisler in June 1856. Pie reports that the balance of the purchase money due to Chisler’s executor on January 20,1870 was $1,589.95. After allowing Evans credit for these several sums and correcting this alleged error, the commissioner, basing his; statement in other respects on his former report, corrects the same and reports the balance due from William Conway to George D. Evans, altogether, would be $2,757.46, instead of $1,952.r)6, as formerly reported. Conway’s counsel re-' iterated his former exceptions; further excepted to the allowance to Evans, of the additional credits above named, and also to the disallowance to Conway of the credit of $300.00 above. On the 17th day of December 1870 the court overruled these exceptions, and confirmed this report. And on March 24, 1871 the cause was again referred to the commissioner to ascertain, what funds were under the control of the court, arising from the sales of Evans’s property, real and personal, and how the same should be paid; as also what debts had been paid under orders of the court, or otherwise, and whether they were all liens on the property, out of the proceeds of which'they were paid, or on what they were liens. On September 20, 1861 the commissioner made his report, showing what debts had been paid out of the sales of property of Evans, real and personal, and the surplus proceeds remaining under the control of the court. It is unnecessary to state in detail any portion of this report, except the following: The commissioner reports, that all of the said debts and liens constituted judgment liens upon and against the property, conveyed by the said deed to Benjamin M. Dorsey,, and that said judgment liens were respectively prior to anj* and all'other liens upon said property, except that the lien of the said deed of trust to Benjamin M. Dorsey would constitute a lien on so much of the property, mentioned in said trust deed, as is situated in Marion county, of prior dignity to the liens of the judgments for said debts, inasmuch as said judgments were not docketed in said county of Marion, and all the property, mentioned in said trust deed to Benjamin M. Dorsey, is situated in the county of Marion, except the tract of land on Cheat river, since sold to C. S. Bey, and the bank stock of said Evans mentioned in said deed. The commissioner further reports, that all the debts and liens so paid and discharged as aforesaid, constituted liens upon and against the said surplus proceeds remaining as aforesaid of like priority and to the extent aforesaid, except that the amount of the debt found upon settlement to be due from William Conway, and which is included in said surplus proceeds, and which amounted on the 20th day of January 1870, inclusive of interest to that date, to the sum of $2,757.46, having accrued (for the most part, if not entirely, from the rents and profits of the lands of said Evans) since the rendition of the judgments aforesaid — most, if not all, of same . having accrued since the execution of the trust deed aforesaid. Consequently the judgments aforesaid would constitute liens only upon the amount of said indebtedness, that accrued prior to the 1st day of January 1864, the date of the expiration of the act of the General Assembly of the State of Virginia, passed January 30, 1863, staying the collection of certain debts, and making such debts to constitute liens upon the property, both real and personal, of such debtor.1” Then follows a statement of accounts between GeorgeD. Evans and William Conway, which according to the commissioner left a balance of $1,938.09 due from Conway to Evans on January 1, 1864, including interest on such balance to January 20, 1870, leaving $819.37, as of that date, as the amount of Conway’s indebtedness accrued since January 1, 1864. The counsel of Conway excepted to this portion ot the said report, which by the decree of September 21, 1871 was overruled; and this report was confirmed, and the funds ordered to be paid over according to the rights of the various parties, as settled by previous orders of the court, or by said report, including the costs of the suit not already paid; “and excluding so much of said last mentioned costs, as have accrued from and by reason of the settlement of the accounts between said Evans & Conway, which said Conway is to pay as hereinafter provided.” And said decree further orders, that said Evans do recover of said Conway $2,757.46, with interest thereon from January 20, 1870, for the benefit of bis creditors; and that the said Conway do pay the same to the receiver of the court; and that unless he should so do in ninety days, execution might issue therefor in the manner named in said decree. And upon its receipt by the receiver, he is ordered to pay it out pursuant to said report of the commissioner. And the said decree then recites, that it appearing that said Conway and Evans are each liable to pay one-half of the balance of the purchase money yet remaining unpaid on the Plum run farm; and that said Conway’s moiety thereof is amply sufficient to pay his said half of said residue of said purchase money; and that no one can be prejudiced thereby; it is further ordered, that unless Conway in a certain time named, pay his said half of said purchase money, his moiety of said tract of land shall be sold by commissioners, appointed by the court on -terms therein named. From this decree, as also the several other decrees against him, Wm. Conway took an appeal. All persons, materially interested in the subject, ought either as plaintiff or as defendants to be made parties to the suit. Under this rule the assignor of a chose in action is a necessary party, where, as an incident of the principal object of the suit, it becomes necessary to adjudicate upon the rights of the assignee: 1 Dan. Chy. Pr., 182, 184, and notes; Story’s Eq. PI. §572; Clark v. Long, 4 Rand. 451; Corbin v. Emerson, 10 Leigh 663. The rule requiring the assignor to be made a party has been qualified; but the qualification does not relieve against the necessity of making George S. Bacon a party to this suit, and perhaps W. J. Willey ought to have been a party also: Treoothiok v. Austin, 4 Mason 16 ; James River and Kanawha Company v. Littlejohn, 18 Gratt. 81; Story’s Eq., PI. §153. The objection for want of indispensable parties may be taken in the appellate court; and the court will itself take the objection: Jameson’s adm’x v. Deshields, 3 Gratt. ' 13 ; 18 Gratt. 83, 84 and cases cited. No decree could properly be made between the defendants, Evans & Conway, in this cause ; because such decree had to be founded upon matters not stated in the bill, nor in litigation between the complainant and defendants or any of them: Elliott v. Pell, 1 Paige 263; Jones v. Grant, 10 ij 348; Tipyp v. Vincent, 3 Barb. Chy. Rep. 613; Bvffalow v. Buff alow, 2 Ired. Eq. R. 113; Templeman v. Fauntleroy, 3 Rand. 434. In this case the defendant, Geo. D. Evans, alleging his own fraud ought not to be heard. He is estopped by his deed: Duchess of Kingston’s Casey 2 Smith’s Leading-Case, 609, note (5 Am. ed.) The deed is conclusive on the party executing it, not only as to the very point intended to be affected by the the instrument, but also as to the fact recited in it: Id, It was error for the circuit court to decree a sale of the real estate, affected by the various judgments and trust liens, until the amount of those liens had been ascertained and their priorities adjusted : Cole’s adm’r v. McRae, 6 Rand. 644; laege v. Bossieux, 15 Gratt. 83. and referred to: Balling v. Lersner, 26 Gratt. 36; Code (1860) ch. 138, sec. 7.