
    CHARLESTON.
    McIlwaine, Knight & Co. and Kanawha Valley Bank v. William Fielder et als.
    
    Submitted April 12, 1921.
    Decided April 19, 1921.
    1. Equity — -¿Sill of Review to Reverse Decree for Error Apparent Analogous to Appeal, and the Court Should, on Discovering the Error, Enter the Same Decree That Would, Be Proper On Appeal.
    
    Proceedings upon a bill of review to reverse a decree for error apparent upon the face of the record are analagous to appellate proceedings to reverse for error, and upon discovering such error the court should enter the same decree that would be entered were -the decree reversed on appeal for a like cause, (p. 469).
    2. Same — On Reversal of Decree in Lien Creditor’s Suit On Bill of Revieio for Insufficient Proof of Liens, Court May Give Further Opportunity to Offer Proof Thereof.
    
    Where a decree in a lien creditors’ suit is reversed upon bill of review because liens have been decreed against the debtor without sufficient proof thereof, it is proper for the couirt to give an opportunity to offer further proof of such liens where it appears that in all probability such proof exists, and particularly where the debtor 'does not deny the existence or validity of such liens, (p. 469).
    3. Abatement and Revival — Scire Facias to Revive Waived by Entry of Appearance.
    
    Where pending the litigation a party defendant to a suit in equity dies, and his death is suggested upon the record, and the cause asked to be revived against a certain party as his personal representative, and certain other parties as his heirs-at-law, and these parties by their counsel enter their appearance in the proceeding, the issuance and service of a writ of scire facias for the purpose of reviving said cause as to them is thereby waived, (p. 470).
    4. Judicial Sales — Decree of Sale in IAen Creditor’s Suit Not Reversible Because Time to Redeem Not Specifically Given Fraudulent Grantees of Principal Debtor. ,
    Where a decree of sale entered in a lien creditor’s suit gives to the debtor a day to redeem the lands decreed to be sold before sale thereof can be made, the same will not be reversed because such decree did not also specifically give a time to fraudulent grantees of such principal debtor within which to redeem said lands from the liens decreed against the same. (p. 471).
    Appeal from Circuit Court, Kanawha County.
    Suit by Mellwaine, Knight & Co., and others against William Fielder and others. Decree for plaintiffs, and defendant named and others appeal.
    
      Affirmed.
    
    
      J. W. Kennedy, for appellants.
    
      McWhorter & Carney, Brown, Jackson & Knight, Blue & McCabe, and Price, Smith, Spilman & Cla/y, for appellees.
   RlTZ, PRESIDENT :

In November, 1909, Mellwaine, Knight & Co. and other judgment lien creditors of William Fielder, filed their bill in the circuit court of Kanawha county for the purpose of enforcing the liens of their judgments against the real estate of said Fielder. In addition to the said Fielder certain other parties were made defendants to the bill, whom it is alleged appeared to be lien creditors of said Fielder from the fact that judgments in favor of such parties against said Fielder are docketed in the office of the clerk of the county court of said' county. On the bill being matured the same was referred to a commissioner to take an account, showing the real estate owned by said Fielder against which the judgments of the plaintiffs were liens, as well as the amount of the liens and the priorities thereof. The commissioner filed his report showing that William Fielder had been the owner of certain real estate mentioned and described in tbe record, but that be bad conveyed this real estate, before tbe commencement of tbe suit, to bis three sons. He then reports tbe judgment liens of tbe plaintiffs, as well as tbe judgments in favor of certain of tbe defendants as liens against tbe real estate. He also reported a debt in favor of tbe Kanawba Valley Bank as a lien secured by a deed of trust, and also as a judgment in favor of said bank, without showing that tbe debt secured by tbe deed of trust and tbe judgment are tbe same debt. On tbe coming in of this report an amended bill was filed making tbe grantees in tbe deeds from Fielder parties, and averring that tbe conveyances from Fielder to bis sons were in fraud of tbe rights of tbe creditors. In May, 1911, tbe Kanawba Valley Bank brought another suit against William Fielder and Sarah F. Fielder, bis wife, having for its purpose tbe enforcement of its judgment, not only against tbe real estate of Fielder, but against tbe real estate of Mrs. Fielder. Tbe debt sought to be enforced in this suit is tbe same debt in favor of tbe bank which is set up in tbe first suit. None of tbe defendants appeared to tbe amended bill in the first suit, or to tbe bill of tbe Kanawha Valley Bank filed in the second suit, and tbe suits were consolidated and the conveyances from Fielder to bis sons were adjudged void and decreed to be set aside as in fraud of tbe creditors, and tbe causes referred to a commissioner to again take and state an account. This tbe commissioner did reporting, in addition to tbe liens of tbe plaintiffs in the suits, liens in favor of certain defendants named therein, as it is claimed, without any evidence to support said liens except tbe statement in tbe bill that tbe record in tbe county clerk’s office showed that said defendants have judgments against tbe said Fielder. On tbe incoming of this report, no exceptions being filed thereto, the same was confirmed, and tbe lands which said Fielder had conveyed to his sons, as well as the lands of bis wife, were decreed to sale in satisfaction of tbe liens adjudged against the same. Before said sale was made William Fielder and his wife Sarah F. Fielder, and bis sons, to whom be bad conveyed bis lands, filed a bill of review asking that tbe decree of sale be reversed for errors apparent upon the face of the record in such proceeding. The errors claimed were that the debt of the Kanawha Yalley Bank was reported and adjudged as two distinct debts against William Fielder and Sarah F. Fielder, and sale ordered of all their said property to pay the same, when in fact and in truth the deed of trust was given to secure the same debt for which the judgment reported was rendered, which fact appears from the record in this case; further, that it appears that Sarah F. Fielder was only the endorser for her husband, William Fielder, upon said debt, and that the property of William Fielder should have been decreed to be first sold in satisfaction of this debt, and in case the same was satisfied out of his property her property exonerated from the lien thereof; and third, that the commissioner reported a number of judgments in favor of defendants named in the proceedings as liens against the said William Fielder’s property without any proof thereof. Upon the filing of this bill of review further proceedings in execution of the decree of sale were stayed, and upon a hearing being had upon said bill of review the court below made and entered a decree setting aside its former decree, and decreeing substantially the same as it had first decreed, with the exception that it decreed the Kanawha Valléy Bank’s two liens as one debt, and decreed that William Fielder’s property should be sold first in exoneration of the property of his wife. From this decree the Fielders prosecuted an appeal to this court, and upon a hearing here the decrees of the circuit court entered upon the bill of review were reversed, upon the ground that proper parties defendant to the said bill of review had not been made, and the cause remanded in order that the said bill of review might be properly matured. This, of course, left the case as if nothing had been done upon the bill of review, and sent it back for proceedings thereon to be begun anew. The opinion of this court on the prior appeal is reported in 76 W. Va. 111. On the cause being remanded to the court below the death of Sarah F. Fielder, wife of William Fielder, was suggested, as well as the death of Launce-lot Fielder, one of the defendants to whom said William Fielder had conveyed part of his real estate, and the suit attempted to be revived against these parties by making their personal representatives and beirs-at-law parties defendants. After all proper defendants to tbe bill of review were brought before tbe court tbe case was again beard upon said bill of review, and the court corrected its original decree so far as the same decreed two liens in favor of tbe Kanawha Valley Bank for its debt secured by tbe deed of trust and evidenced by the judgment aforesaid, and recited that this was but one debt, and that said bank was entitled to only one satisfaction thereof, and also provided for tbe sale of tbe property of William Fielder in exoneration of tbe property of Sarah Fielder, bis wife, and that no sale be made of her property unless tbe amount derived from tbe William Fielder property was inadequate to satisfy said bank’s debt; and further held that a number of tbe liens reported by tbe commissioner were not sufficiently proven to justify said report, and without decreeing as to tbe validity of these liens recommitted tbe cause to a commissioner to give tbe parties further opportunity to present any evidence they might have as to tbe existence and tbe validity of such .judgments. All of these defendants appeared before tbe commissioner and presented their answers setting up their judgments with full certified copies' of tbe proceedings, and upon this showing tbe commissioner reported that these defendants bad valid and subsisting liens against tbe property of William Fielder, giving the amounts thereof, and the priorities thereof, as set. out in bis first report. On this report being filed, tbe circuit court then declined to further correct bis. original decree of sale, but entered a decree in accordance with that original decree, with tbe exception of tbe two modifications above referred to, and again decreed tbe lands of Fielder to sale in satisfaction of said liens, unless be should pay off tbe same before tbe day mentioned in tbe decree. It is from this decree that tbe present appeal is prosecuted.

Numerous errors are assigned to tbe action of tbe circuit court in entering this decree, but they may be summarized as follows: First, that upon, tbe bearing on tbe bill of review tbe court should not have done anything more than to have beard tbe case fully as then presented, and entered a final decree in tbe case in its then condition, without giving any of tbe lien creditors a further opportunity to prove their claims, the result of which would have been to bar all of the liens which it found were not sufficiently proven; second, that the causes were not properly revived against the personal representatives and heirs-at-law of Sarah F. Fieldder and Launcelot Fielder who died pending the litigation; and third, that the decree did not.give to the fraudulent grantees of William Fielder a day to redeem before making sale of said properties. We will discuss these propositions in their order.

It is insisted that on the former appeal it was held that the court should not open up the causes for a full rehearing, but that it should enter a final decree upon reversing the former decree upon the record then presented. This is not the effect of the holding upon the former appeal. Our holding on that appeal was that a bill seeking to review a cause for error apparent upon the record does not reopen the cause for a general rehearing, but that the procedure is analagous to the review of a cause by appeal for error, and that the proceedings had should be analagous to the proceedings had where a cause is reversed upon appeal, and this we think is the law. The purpose of a bill of review for errors apparent upon the record is the same as the purpose of an appeal, and when the decree complained of is reversed upon the bill of review the proceedings then had should be the same as would be had upon reversal of a like decree upon appeal. This does not mean, however, that the court is powerless to ascertain the true situation. It does not mean that the court upon reversing the decree must enter a final decree barring the rights of parties when it can see that in all probability these rights are substantial, and could be properly asserted and set up if opportunity were given. It is not our practice to do this upon appeal. Neither should it be the practice to do so upon a bill of review. In the case of Williams v. Insurance Agency, 75 W. Va. 494, the claims of certain creditors were rejected for lack of sufficient evidence to prove the same, and this court' upon appeal held that these claims were properly rejected by the court below, but held that it was error ffiot to give the claimants a further opportunity to prove their claims, and reversed the cause and remanded the same that this opportunity might be extended to them, and upon the cause being so remanded the claimants did in fact prove their claims, and the same were allowed in the suit. This is a much stronger case than the one presented here, for in that case the claimants appeared before the commissioner and offered the evidence of their claims, and when the same were rejected by the circuit court they did not ask for a further opportunity to present proof, but appealed to this court. In this case it appeared from the allegation of the bill that judgment liens were docketed in favor of the defendants whose claims it is asserted were not sufficiently proved, and these defendants, upon the decree being reversed, demurred to the hill of review, and in effect asked for an opportunity to offer proper proof of their debts. Not only did the court have the power to extend this opportunity to these claimants, but under the decision above cited it was its duty to do so.

The further contention is made that these causes were never properly revived against the heirs-at-law of the two parties defendant who died pending the litigation. The order suggesting the death of these parties asks that the suits be revived against certain parties named as their respective personal representatives and certain other parties named as their heirs-at-law, and, without any writ of scire facias being issued, the order recites that the parties named appeared in the causes, and it is contended that by thus appearing the necessity for the issuance and service of a writ of scire facias was waived. It is argued that revival can only be had by bill of revivor, or by scire facias, and this is true, unless the parties waive these formalities. To issue a writ of scire facias under the circumstances shown here, and have the same executed would have been doing a perfectly úseles thing, for the reason that the new parties themselves came into court and submitted to the jurisdiction. It is also suggested that the order does not show that the defendants named therein are all of the heirs-at-law of the respective parties. There is no suggestion, however, that there are other heirs-at-law, and in the absence of sdeh a suggestion the decree will not be reversed because it fails to recite that there are not other heirs besides those named.

The other ground upon which reversal is sought is that the decree does not give a day to redeem to the fraudulent grantees of "William Fielder before making sale of the lands. The final decree does give a day to redeem to the personal representatives of Mrs. Fielder as to her property, and to William Fielder, the judgment debtor, before sale is made of his property. This is all that is required. As to the grantees, it has been adjudged that they are fraudulent grantees. They have no interest in the property so far as these lien creditors are concerned. When the circuit court adjudged that the conveyances to them were in fraud of the rights of creditors their interest ceased so far as the liens set up in the cause are concerned, and there is no duty to give them a day to redeem the property. Further than that, it may be said that the opportunity given to William Fielder to redeem would extend to any party interested in the cause. It cannot be sold until this time has expired, and if they desire to redeem it during the time which was given for redemption by the principal debtor they may do so as effectually as though they were specifically authorized thereto. Discharge of the liens by payment will as effectually prevent a sale as though the decree specifically provided therefor.

We find no error in the decree complained of, and the same is affirmed.

Affirmed.  