
    WHEELING.
    Hill v. Morehead et al.
    
    Submitted June 17, 1879
    Decided October 28, 1882.
    (Snyder, Judge, Absent.)
    1. When a bill is filed by a judgment-creditor to have the lands of the judgmenDdebtor sold to pay his judgment-debts, which are liens upon the judgment-debtor’s lands, to have the land rented rather than sold is a privilege accorded to the judgment-debtor and others interested, and they must exercise it in the inferior court ; and the decree must show, that they asked a rental of the land, and it was refused, before the decree for that reason will be reviewed in the Appellate Court, (p. 447.)
    2. The inferior court must be called onto say, whether in a. reasonable time the rents and profits of the real estate will pay the liens charged thereon ; and this discretion must first be exercised by the court below, before the Appellate Court will review the decree of said court; and upon such review the Appellate Court will not reverse it, unless it appear, that the court erred in the exercise of that discretion. Hose & Co. et al. v. Brown etux. 11 West Ya. 122. (p. 447.)
    3. While it is true, that to have the real estate rented is a privilege accorded to the debtor under circumstances, still to entitle the debtor to have the benefit of such privilege he must exercise reasonable diligence in claiming it in the court below, and he must ask the rental of the property, before the decree of sale is entered, unless he shows to the court below good and sufficient reason, why he did not ask it, before the decree of sale was entered. (p. 448.)
    4. When it appears upon the face of the decree of sale, that the court below ascertained the several liens on the land and the respective amounts thereof and their priorities, but it otherwise appears in the cause, that the court may have erred to some extent in ascertaining such priorities, the appellant is not prejudiced thereby, and the Appellate Court will not reverse the decree of sale for this cause at the instance of the judgment-debtor, if none of the judgment-creditors complain in the Appellate Court of such error but ask the affirmation of the decree, (p. 445.)
    Appeal from and siqoersedeas to certain decrees of the circuit court of the county of Wood, rendered respectively on the 8th and 13th days of October, 1877, in a cause in said court then pending, wherein W. J. Hill'was plaintiff, and James L. Morehead and others were defendants, allowed upon the petition of said Morehead.
    Hon. James M. Jackson, judge of the fifth judicial circuit, rendered the decrees appealed from.
    HaymoND, Judue, furnishes the following statement of the case :
    The plaintiff commenced his suit in equity in the circuit court of the county of Wood and filed his bill therein at rules on the first Monday in April, 1876, against the appellant, James L. Morehead, and W. II. Mattingly, 0. 0. Cole, T. J. .Cook, First National Bank of Parkersburg, S. S. Spencer, M. P. Amiss and Joseph Wallace,'executors of Win. Spencer deceased, and Virginia, Lee, executrix of G-eorge II. Lee, deceased. The plaintiff in his bill alleges substantially, that at the November temí, 1875, of the county court of said .county he recovered a judgment against said Morehead for forty-four dollars and two cents with interest thereon from the 28th day of July, 1874, and his costs of suit; that execution was sued out upon said judgment against the goods and chattels of said Morehead and placed in the hands of a constable of said county to be executed, who returned the same “No property found;” that an abstract of the said judgment was duly docketed in the judgment lien docket in clerk’s office of the county court* of said county; that said Morehead on the 5th day of January, 1870, confessed a judgment in the clerk’s office of the circuit court of said county before the clerk of said circuit court for the sum of t\vo thousand five hundred dollars with interest thereon from the 11th day ■ of December, 1868, and six dollars and'fifty-eight cents; that there was paid' on the last named judgment on the 14th day of May, 1873, the sum of two hundred and fifty dollars, as appears by memorandum entered on the judgment process book of said circuit court signed by said Mattingly; that by another memorandum of the said Mattingly on said process book he assigned the residue of said judgment being.the sum of two thousand nine hundred and thirteen dollars and seventy-five cents including interest as of tlie date of .said. May 14, 1873, to the' State of West Virginia; tliat said last named judgment was duly docketed in tlie clerk’s office of said county court of Wood; that 0. 0. Cole, at the September term 1875 of said county court obtained judgment therein against said Morehead for five hundred and eighty-six dollars and four cents with interest and costs of suit — the costs arnmnitifig to nine dollars and fifty cents; that the last named judgment was also docketed in the clerk’s office of said county court; that T. J". Cook at the September feriri 1875, obtained a judgment in said county court against the said Morehead for the sum of forty-six dollars and eighty cents with interest thereon from the 11th 'day of May, 1875, and seven dollars and eighty-five cents, which last named judgment >vas also duly docketed in the clerk’s office of said county court; that the Hirst. National Bank of Parkersburg at the June term, 1875, of the circuit, court of said county obtained a judgment ágainst the said Morehead and B. T. Beeson for.' the s.u'm of one hundred and one dollars and fifty-four cents, with interest thereon from the 7th day of September, 1874, and the costs, seventeen dollars and fifty cents, which last’ named judgment was also duly docketed in the clerk’s office of said county court; that S. S. Spencer and M. P. Amiss and Joseph Wallace, executors of William Spencer deceased, at the September term 1873 of the circuit court pf said couhty obtained a judgment against said Morehead and one, George Dent and oneWarreh M orehead on a forthcoming bond for thr.ee hundred dollars, penalty to be discharged by the payment of two hundred and eighty-six dollars and thirty cents with interest thereon from the 21st day of July, 1873, and the costs, seven dollars aud ten cents; that at the December term 1874 of said court an injunction restraining' the collection of the last named judgment was dissolved, that said judgment thereupon bore interest from the 21st day of July, 1873, until tire 7th day of August, 1874, and thence at the rate of ten per cent, per annum on principal and costs from the 7th day of August, 1874, until said 21st day of December, 1874, thence six per cent, on the original judgment until paid; that said last named judgment was also duly docketed in the clerk’s office of said county court; that George H. Tme in his life time at the spring term 1869 of the circuit court of said county obtained a judgment against said Morehead by confession of said Morehead in open court for two thousand five hundred dollars, with interest thereon from the 17th day of May, 1869, and six dollars and forty cents costs; that the said George H. Lee in his life time caused the last named judgment to he duly docketed in tire clerk’s office of said county court; that said George H. Lee has departed this life, and that his wife, Virginia Lee, has duly qualified as his executrix under his last will and testament; that said More-head is possessed of a certain tract of land situate in Parkers-burg district in said county on the Ohio river being the same land and premises on which the said Morehead now resides, which said land and premises is fully described in a certain deed of conveyance from James Y. Homer and wife to said Morehead dated the 7th day of September, 1865; that the said tract of land desorbed in said deed is all the real estate which the said Morehead is seized or possessed of; that the said Morehead has no personal estate, out of which the plaintiff’s said judgment can he made; that said several judgments are prior liens upon the said tract of land to the lion of the plaintiffs.
    The hill prays among other things, that the cause he referred to a master commissioner of the court to ascertain all the real estate, of which the said Morehead is possessed, who have liens thereon, the amount thereof, and the order of their priorities; and that on the return of such report the said land he sold to pay the liens thereon, and especially the lien of the plaintiff, and for general relief.
    So far as the record as before us shows, the first decree made and entered in the cause was made on the 14th day of July, 1876; and hy this decree it appears, that on that day the State-of "West Virginia by her counsel appeared in court and hy permission of the court filed her petition praying to be made a plaintiff in the cause, and the court permitted her to become a co-plaintiff with the plaintiff* W. J. Hill; and the defendant, Virginia Lee executrix, &c., as aforesaid filed her answer to the bill, to which a general replication was filed. Thereupon the cause was heard on the bill taken for confessed as tq the defendants, James L. Morehead, W. H. Mattingly, C. C. Colo, T. J. Cook, First National Bank of Parkersburg, and S. S. Spencer, Joseph Wallace and M. P. Amiss, executors as aforesaid, on, when process bad been duly served, &c., tliey still failing to appear and plead answer or demur to the bill, on the answer of Virginia Lee executrix, &c., with general replication thereto, and on the exhibits; and the court by its decree referred the cause to one of its commissioners with directions to report, 1st, what real estate the defendant, Morehead, was possessed of at the time of the rendition of the judgments in the bill and proceedings mentioned, the quantity and location thereof, whether any portion of the same has been sold since the rendition of said judgments or any of tliem, and if so, the quantity, location and to whom sold; 2d, what liens are outstanding and unpaid against the lands of said Morehead, stating the kind and characters thereof, and if judgments, when and in what court rendered, and whether the same are docketed, the amount thereof and the order of their priorities, and any other matter by the commissioner deemed pertinent or required by any party in interest.
    The State of "West Virginia in her said petition sets up, that defendant Mattingly, was late sheriff of Wood county in said State and as such late sheriff he was indebted to her in a large sum of money due from him as such sheriff to her for arrearages of taxes,'levies, fines, licenses, &c.; and that as such sheriff being so indebted by an arrangement made with the auditor of petitioner he assigned to petitioner a certain judgment, then held by him, said Mattingly,' individually, against said Morehead, which said judgment was rendered by the circuit court of said Wood county in favor of said Mattingly, by the confession of said Morehead in the clerk’s office of said court on the 5th day of January, 1870, and was for the sum of two thousand five hundred dollars with interest from the 11th day of December, 1868, and costs, six dollars and fifty-eight cents, a transcript of which is filed with the bill of said W. J. Hill against said Morehead and others. The petition also sets up the assignment to the petitioner of said judgment mentioned in said bill; it also states, that at the date or said assignment there was due from said More-head upon the said judgment two thousand nine hundred and thirteen dollars and seventy-five cents with interest thereon from the 14th day of May, 1873, being the amount petitioner credited to said Mattingly as 'such sheriff, and is the amount assigned by said Mattingly to petitioner; and that said 'sum with interest is due petitioner from said Morehead by-virtue of said assignment, and that no part of it has been paid. It also alleges,-that said judgment was duly docketed in the clerk’s office of said county on the 5th day of January, 1870, •and that the same constitutes a lien on all the reality of said Morehead'in'said county. It also chai’ges, that said More-head has lio personal estate, out of which the said judgment can be .made. It also refers to the said bill of said W. J. Hill and prays, that petitioner be permitted to file her said petition in said suit' of ~W. J. Jlill-against said Morehead and others as party complainant with said Ilill, and that the said lands of said-Morehead be sold to pay petitioner’s said judgment, &c.
    The defendant,-Virginia Lee, executrix, &e., in her said answer says, it is true that on the 17th day of May, 1869, the defendant, Morehead, confessed a judgment in the circuit court of Wood county in favor of her testator for two thousand and five hundred dollars, with interest' from said 17th' day of May, 1869, and costs, which is a lien on the land of said Morehead from'its date; that in the settlement of the estate of her said testator' the said debt Was. assigned to her as a-part of her distributive share of said estate as widow, and she is now the owner of the same, &c.
    • It appears that on the 31st day of March, 1877, the defendant, O. G. Cole, filed his answer in the cause, to which general replication was made. Said Cole in his answer admits, that ho recovered against said Morehead the judgment in the bill mentioned and alleges, that since the filing of said bill he has paid as the surety of said Morehead the balance of a judgment in favor of E. W. S. Moore against the said More-liéad: and the respondent; that he paid twenty-two dollars and thirteen cents in satisfaction of the balance of the judgment aforesaid, which with interest up to the 5th day of Máreh, 1857, amounts to twenty-two dollars and thirty-eight cents; and that having paid said sum he claims, that he is entitled to be subrogated to the rights of said Moore, the plaintiff .in said judgment, and Rave satisfaction thereof in this suit out of the real estate of said Morehead; and' he prays that the court -will decree a sale of said real estate and provide for the payment of the said judgments out of the proceeds oí sale, &e.
    The commissioner, to-whom the cause was referred, at June term, 1876, made and filed his report to-the court. To this report defendant, Morehead,,filed exceptions. On the 7th day of April, 1877, on motion of the plaintiff by his attorney the cause was recommitted to the, commissioner with instructions to ascertain and report, if there are any other judgments or liens upon the lands of the defendant Morehead not included in his said report, and that if there be such, to report the same and the order of their priority, together with any additional matter required by any party in interest. It appears the commissioner completed his second report on the 2d day of August, 1877, and filed it in the clerk’s office of said circuit court on the 20th of the same month and year. To- this report no exceptions appear to have been taken or filed.
    On the 8th day of October, 1877, the said circuit court made and entered the following decree : .
    “It appearing to the court that S. S. ■■ Spencer, M. P. Amiss and Joseph Wallace, executors of William Spencer, deceased, have no interest in this ' suit on. motion of complainant, by J. B. Jackson, his attorney, tips cause is dismissed as to the said executors. And this cause coming on again to bo heard. upon the papers read at the former hearing, and the former orders made therein, upon the report of commissioner Barna Powell made and filed in this cause on the 6th day of February, 1877, on the exceptions to said report, tipon the second report of commissioner Powell, made and filed in this cause on the 20th day of August, 1877, .and was argued by counsel. Upon consideration whereof, and there appearing.to be no exceptions to said second report, and it appearing to .the court that said commissioner Powell in his second report, has corrected the errors which were .grounds of exception to his first report it is adjudged, ordered and.decreed, that the said first report as amended by said second report, and said second report be and the same is hereby in all things confirmed. And it further appearing from said reports that the following named persons have judgments against the defendant, James L. Morehead, which said judgments are liens upon the lands in the bill and proceedings in this cause mentioned, and which said judgments, on the 5th day of September, 1877 (the day to which, by said report the commissioner calculated said judgments) are in favor of and amount to the sums following, and are entitled tobe paid in the order as follows, viz:
    Virginia Lee, executrix of George H. Lee, dec’d..'§2,945 00
    Wm. H. Mattingly, now for use of State of West Virginia. 3,499 35
    First National Bank, Parkersburg. 136 27
    T. J. Cook. 61 15
    C. C. Colo. 675 83
    Lewis Smith, adm’r of Mary Coyne, a lunatic. 127 11
    A. C. Bicharás..'. 106 76
    R. D. Callahan. 293 79
    Waldo P. Goff.. 286 41
    W. J. Hill. 106 51
    E. S. Moore, doing business in name of Mountain City Bank. 23 05
    W. J. Hill. 101 86
    Novelty Mills Company. 45 13
    And it further appearing to the court that Virginia Lee, executrix of George Ii. Lee, deceased, by a writing filed in the papers of the cause, does not wish a decree in her favor at this time; and it further appearing from said report that the Legislature of "West Virginia by joint resolution has stayed the enforcement of the judgment in the name of Wm. IL Mattingly, now for the period of three years from and after the 19th day of February, 1877, and that E. I). Callahan, has stayed the collection of his said judgment for two years from the 8th day of January, 1876, the court will, in any decree of sale directed to be made, provide for the payment of said three judgments by fixing the terms of said sale so that they will be postponed until the time agreed on for their payment and paid out of the installments falling due after said times so agreed on as aforesaid.
    And it further appearing that the other judgment-creditors in said report named are entitled to enforce the lien of their judgments, respectively, against the lands of said defendant, Moreliead, and now entitled to a decree for the sale of tbe sanie; and it further appearing that the said Morehead is the owner in fee at this time of the one hundred and thirty-eight acres of land conveyed to him by Janies Y. Horner, and also oí a ten acre tract in Hitcliie county, as set out in said report, and the judgments aforesaid are liens thereon, it is further adjudged, ordered and decreed that unless the defendant, Janies L. Morehead, or some one for him, do within thirty days from the entering of this decree pay to the said several judgment-creditors, or to their attorneys, the said several judgments herein named, together with the interest and costs thereon, respectively, and also pay the costs of this suit, excepting from the said judgments in said report mentioned and which are not at this time decreed to be paid, the said judgment in favor of Virginia Lee, executrix of George H. Tjee, deceased, the said judgment in favor of ¥m. H, Mattingly, now for the use of the State of West Virginia, and the said judgment in favor of li. 1). Callahan, then that Jacob B. Jackson, who is hereby appointed a special commissioner for the purpose, do proceed, after executing bond in the penalty of two thousand dollars, conditioned according to law, to make sale of the said two tracts of land herein mentioned at public auction to the highest bidder, at the front door of the court house of Wood county, on some circuit or county court day, for so much cash in hand as wijl pay the costs of this suit and expenses of said sale, and as to the residue upon the following terms, to-wit, one-third part thereof in ten months, one other third part thereof in twenty months, and the remaining third part thereof in thirty months from the day of sale, the purchaser giving bond -with good personal security for the deferred payments, with interest thereon from-the day of sale, and the title to said lands to ho retained as a further security; said commissioner to give four weeks’ notice of the time, terms and place of sale by advertisement published in some newspaper printed in the city of Parkoi’shurg prior thereto, and by copy of said advertisement posted at the front door of the court house of said Wood county for a like period, and also at ornear said lands for a like period. It appearing to the court that the said Morehead has sold two acres of said one hundred and thirty-eight acres of land to Roberta Neal, as appears by his title bond of record, bearing date July 22, 1874, itis ordered that said 'commissioner 'do except from any sale made by him hereunder the said two acres of land.”
    On the 13th day of October, 1877, the circuit court made and' entered in the cause this decree, viz:
    “This day J. L. Morehead filed his petition in open court, ■praying'to have the decree entered at a former day of this term in the above entitled cause, set aside, and the said cause re-committed1 to Barna Powell, a commissioner in chancery, with directions to ascertain in what time the rents and profits from the tract of land mentioned in complainant’s bill filed in this cause would pay off and discharge the debts due and pressing with interest and costs. On consideration whereof the court' is -of opinion that the said petition does not set out any reason' why the court should set aside the former decree made herein, and' that even it it had the power to rent out said lands, the same has been unreasonably delayed. It is therefore considered by the court that the same be disallowed.”
    The said petition of said Morehead is as follows:
    
      “To the Won. James M. Jackson, judge of the circuit court, of Wood county :
    
    “Yotir ’ petitioner, J. L. Morehead, a citizen of Wood county, West Va., respectfully represents unto your Honor, that at the June term, 1876, of the circuit court of Wood county, State aforesaid, W. J. Hill, 'filed a bill of complaint against your petitioner making W. II. Matingly, &c., defendants, ■*; * setting forth that W. J.'Hill, at a county court held .for the'county of Wood; recovered a judgment against your petitioner - for the sum of 'forty-four dollars and seven cents, with interest thereon from the 28th day of July, 1874, until paid, and the costs, which amounted to fifty-three dollars and sixty cents; that after rendition of said judgment, he caused to be sued out' of the clerk’s office of said court a writ -of'fieri facias on' said judgment, which said writ was placed in the hands of James A. Dent, constable of AVood county,-and by him was returned ‘No property found;’ that said Hill caused an abstract of his said judgment to be docketed ih the judgmoiit-iien docket in'the clerk’s office of the county court of said Wood"county.
    
      “And further, says that on the 5th day of January, 1870, that petitioner confessed judgment in the clerk’s office, of the circuit court of said Wood county, before-.clerk of said court, for the sum of two thousand and five hundred, dollars, with interest on said sum from the 11th day of December, 1808, and. costs amounting to six dollars and fifty-eight cents; that memorandum endorsed on said judgment in the process hook of said court, there was paid on said judgment on the 14th of May, 1873, two hundred, and fifty dollars; and by another memorandum likewise endorsed,, shows an assignment of the residue of said judgment of amount two thousand nine hundred and .thirteen dollars and seventy-five cents, including interest as of date May 14, 1873, to the State of West Virginia; that Mattingly caused a copy of his .said judgment to ho recorded in the judgment-lien -docket .in the clerk’s office of county of Wood, as provided by law.
    “And further, that O. C. Cole, at the .September term, 1875, of said court, obtained a judgment against your petitioner, in the county court of Wood county, for the sum- ox five hundred and eighty-six dollars and four cents, with inter-. est, &c., and costs which amounted to nine dollars and fifty cents, which said judgment was docketed in the judgment-lien docket of the county clerk's office of .Wood county.
    “And further, that one T. -J. Cook, at the September term, 1875, obtained a judgment in the county court of said Wood county for the sum of forty-six dollars and eighty c.ents, with interest from the 11th day of May, 1.875, and costs amounting to seven dollars and eighty-five cents. Said Cook caused the said judgment to he recorded in the judgment-lien docket of said county court, as provided by law. ,.
    “Further, that the First National Dank of Parkersburg, at the Juné term, 1875, of the .circuit court of Wood county, obtained a judgment against your petitioner and one B. T. . Beeson for the sum of one hundred and one dollars and fifty-iour cents, with interest from the 7th of September, 1874, and the costs, amounting to seventeen dollars and fifty, cents, which said judgment was recorded in- the judgment lien docket ox the county court of Wood county; that S. S. Spencer, .Ml P. Amiss and Joseph Wallace, executors of Win. Spencer, deceased, at September term,. 1873, of the circuit court of Wood county, obtained a judgment against petitioner and George Dent and Warren Moretead on a forthcoming bond for three hundred dollars, to be discharged by the payment of two hundred and eighty-six dollars and thirty cents, with interest from the,21st of July, 1873, and costs; that at the December term of said court an injunction restraining the collection of said judgment was dissolved; that said judgment thereupon bore interest from the 21st day of July, 1873, until 7th August, 1874, and thence at the rate of ten per cent, per annum on the principal and costs from the 7th day of August, 1874, until 21st December, 1874; thence six per cent, on original judgment until paid; that costs of said judgment amount to seven dollars and ten cents; said executors had said judgment recorded as previously stated; also at spring term, 1869, judgment was rendered in circuit court of said Wood county against petitioner in favor of George II. Lee, by a confession in open court by petitioner, for the sum of two thousand five hundred dollars with interest from the 17th day of May, 1869, and costs amounting to six dollars and forty cents; said judgment was recorded in the judgment-lien docket of the clerk’s office of the county court of said Wood county, as provided by law; that said complainant’s bill says further that your petitioner is possessed of a certain tract of land lying and being in Parkersburg district, in the said county of Wood, on the Ohio river, and the same land and premises on which your said petitioner now resides, which said land, and premises thereto appertaining, is fully described in a certain deed of conveyance from James T. Horner and wife to petitioner, bearing date 7th day of September, 1865 (a copy of which is filed with complainant’s bill), and charges that petitioner has no property out of which said judgment could be made, and that the land described was all the real estate petitioner had or was possessed of; that the judgments aforementioned having been duly recorded in the judgment lien docket of the county court of Wood county, that said judgments are prior liens to that of complainant. Charges further that petitioner is insolvent, and that complainant is without remedy to enforce his said judgment save in a court of equity, and prays further that the several persons aforemen-ti onecí 1)0 made parties to bill of complaint, and that tire cause be referred to a master commissioner of said circuit court of Wood count}', with directions to ascertain all the real estate of "which petitioner was at that time possessed of, who had liens thereon, the amount thereof, and the order of their priorities thereof; prayed your Honor to decree a sale of said land to pay the liens thereon, and especially the lien of complainant.
    “ Your petitioner further represents that at the fall term ot the said circuit court the said cause "was referred to Barna Powell, one of the commissionei’s of said court, to carry out the instructions contained in said order of reference; that said commissioner completed and hied his report in said cause in the clerk’s office of said circuit court on the 6th of February, 1877, to which said report your petitioner excepted, and, by his counsel, hied his exceptions to said report at the March term of said circuit court, 1877, which exceptions, being considered by the court, wer6 in part sustained, and the cause recommitted for a further report; that the second report of said commissioner, Powell, was completed and hied in the clerk’s office of the said circuit court on the 20th day of August, 1877, and at the September term, 1877, of said circuit court, the cause aforesaid came on again to be heard upon the papers read at the former hearing, and the former orders made therein, as well as the first and second reports of Commissioner Barna Powell, and was argued by counsel, and no exceptions being offered to second report, and it appearing to the court that said commissioner had corrected the errors which were the ground of exceptions to first report, whereupon the court ordered that the first report, so amended by said second report, and said second report be in all things confirmed; thereupon a decree was entered, which, after setting out the judgments and their priorities, as reported by said commissioner’s report, directed your petitioner’s land, as described in complainant’s bill, to be sold for so much cash in hand as would pay the costs of this suit and expenses of said sale; and as to the residue, one-tliirdin ten months, one-third in twenty months and one-third in thirty months from the day of sale — the purchaser giving bond, with good security, &c., all of which will be seen by copy of decree herewith filed marked ‘A.’
    
      “Your petitioner begs leave to state further, that by a joint resolution oi the General Assembly of the 19th of February, 1877, the debt due from your petitioner to the State of West Virginia, was stayed for the term of three years; that by the request of Mrs. Lee, executrix of George II. Lee, deceased, the collection of her claim against your petitioner is stayed for a like time, and by the terms of the judgment against your petitioner in favor of James L. Callahan no execution was to issue out upon said judgment for two years from January 6, 1876. These claims added together make the sum of six thousand seven hundred and thirty-eight dollars and fourteen cents. The balance of your petitioner’s indebtedness up to this time will not exceed one thousand five hundred dollars, as reported by Commissioner Barna Powell.
    “ And your petitioner further says that the fact of a joint resolution by the General Assembly of "West Virginia, staying the enforcement of the claim of the State against your petitioner, as well as the agreement of Mrs. Lee, executrix as aforesaid, led your petitioner to believe that it was unnecessary for him to appear before said Commissioner Powell at the time he was making up his report in the foregoing cause to attend to his interest in cases as stayed as aforesaid; that he is in possession of papers showing that his indebtedness to Mrs. Lee, executrix, &c., is not as great as reported by commissioner by the amount of nearly one thousand dollars, which said papers would have been by your petitioner offered before commissioner had it not been for the reason before mentioned. Your petitioner says his property is worth fully twenty thousand dollars, and that the rents from the same would pay off the claims which are not stayed before the time for which those which are stayed would expire.
    “ Your petitioner further represents that a sale of his said land as ordered in decree as aforesaid would leave himself and family without a home; that the low price of real estate at this time would cause your petitioner to suffer great loss in the price for which his said property would sell, and your petitioner would, in consequence, be reduced to poverty and want, and that his advanced age would preclude the possibility of his making a support for himself and his family, whereas, if the court would order his said tract of land to be rented out it would pay the debt as aforesaid in a reasonable time, and leave to your petitioner a borne for himself and family.
    “And your petitioner further says, that in the year 1874 he made sale of two acres of the land mentioned in complainant’s bill to Roberta Neal, for which he gave to her a title-bond ; that the said writing was placed upon the records in the clerk’s office of the county court of Wood county, on the 22d day of July, 1874, in l)eed Book No. 35, page 6; that the said Roberta Neal is not made a party to the suit of W. J. Hill against your petitioner and others in complainant’s bill in this said cause filed, nor are her interests protected in said decree aforesaid. Your petitioner, therefore, prays that the said decree entered in said cause at a former day of this term, directing the sale of your petitioner’s land as aforesaid, &c., bo set aside, and that an order may be made by this honorable Court directing the said land to be rented out for a sufficient length of time to pay the debts, interest and costs now pressing, and that the said cause be recommitted to Commissioner Barna Powell, to ascertain in what time the rents and profits from said tract of land would pay off and discharge the debts pressing, with interest and costs, which your petitioner avers to be the sum of one thousand six hundred and sixty-nine dollars and eight cents, as appears from the commissioner’s report.
    “And your petitioner further represents that the said property can be rented tor sufficient to pay off and satisfy the said amount in thirty months; that there are now responsible parties who are willing and ready to take the said property and pay off' the said debts within the time last aforementioned.
    “And your petitioner, for further prayer, asks that the said Roberta Neal may be made a party to this suit, and that her interests in said tract of land hereinbefore mentioned may be protected; and grant your petitioner such other, further and general relief in the premises as his case may require and. to a court of equity may seem right and proper. And as in duty bound your petitioner will ever pray.
    “J. L. Morehead, By Counsel.
    
    (Signed) “J. L. Morehead.
    “J. G. McCluer, Sol. for Petitioner.
    
    
      “State oe West Virginia,
    “ Wood County, to-wit:
    
    “Personally appeared before me, L. P. Heal, clerk of the circuit court of Wood county, W. Va., J. L. Mordicad, and made oath that the allegations contained in the foregoing writing are true so far as stated upon his own knowledge, and'so far as stated upon the knowledge or information derived from others, he believes them to be true.
    “Signed and sworn to before me this the 13th day of October, 1867.
    “PI. Heal, D. 0.,
    
      “For L. P. Neal, Cl’k.”
    
    Such other matters appearing in the record, as are deemed material to be stated, will be referred to in the opinion.
    Prom and to the said decrees rendered on the 8th and 13th days of October, 1877, respectively, the defendant, Morehcad, heretofore obtained an appeal and supersedeas from this Court upon his petition and assignment of errors therein.
    
      Robert White for appellant
    cited the following authorities: Code p. 666; 11 W. Va. 122.
    
      Jacob B. Jackson for appellee
    cited the following authorities : 11 W. Va. 122; 10 W. Va. 645; Code; Acts 1872, 42; 2 Tuck. Com. 372; 3 Black. Com. 418; Bac. Ab. Ex’n. (a) and (c) 27; 1 11. C. eh. 134; Id. ch. 128; 2 Minor. Inst. 270; 4 Munf.-104; 6 Munf. 32; 2 Atk. 433; 1 Eq. Gas. 149; Karnes Princ. Eq. 75; 2 Rob. Prac. 46; Acts Va. 1842, 75; Code Va. 1849, § 6, 709; 10 Leigh 93; Id. 394; Acts 1872 ch. 30; Code ch. 140 § 2; Id. ch. 139, § 5; 8 W. Va. 210; 4 W. Va. 605.
    
      
      Cause submitted before Judge S. took his seat on the bench.
    
   Haymond, Judge,

announced the opinion of tire Court:

The first .error assigned by the appellant in his petition is, that the court erred in confirming the report of master commissioner, Barna Powell, dated 2d of August, 1877, made in this cause. The report of the said commissioner of the 2d of August, 1877, is the second and last report made by said commissioner, to which there were no exceptions filed by the appellant or any other party or person. The court in its do-cree of tlie 8tli day of October, 1877, confirmed the first report of the commissioner, as amended by this second report, and also confirmed said second report, to which no exceptions were filed. The errors complained of by the exceptions of appellant filed to the first report were entirely removed by said second report; and the court in its said decree of the 8th day of October, 1877, and on the face thereof ascertained the several liens against the appellant’s lands, the respective amounts thereof and their priorities. But the counsel for the appellant claims, that the liens, which are judgment-liens, are not ascertained according to the dates of the judgments. This may be so to some extent. But if the court did err in this respect, I do not see, that the appellant is or can in any way be prejudiced thereby. If any of the parties can be injured thereby, it may be some of the judgment-creditors, and not the appellant, and none of the creditors complain of any error in this respect, but by their counsel ask the affirmance of the decree. This Court as a general rule will not reverse a decree of the court below at the instance of an appellant for an error or irregularity in a decree by which the appellant can not be prejudiced. -In this case the appellant never demurred to or answered to the plaintiff’s bill; and in fact the only appearance, which he ever made in the cause by way of pleading in any form prior to or at the time o'f the making and entering by the court of the s^aid decree of sale of the 8th day of October, 1877, was to file exceptions to said first report, the grounds for which were entirely removed by the second report.

The second, third, fourth, fifth, sixth, seventh and eighth assignments of error contained in his said petition are as follows, viz.:

“Second. The court erred in refusing to grant the prayer of your petitioner, filed in open court on the 13th day of October, 1877.
“Third. The court erred in refusing to set aside the decree made in said cause, and entered on the 8th day of October, 1877.
“Fourth. The papers in the cause show that the debts pressing amounted to about one thousand six hundred and sixty-nine dollars and eight cents; that the tract of land mentioned, in complainant’s bill was worth twenty thousand dollars; that even during these hard times it would rent for at least from six hundred to eight hundred dollars per year, as is shown by affidavit of complainant himself, and consequently in less than three yeai-s, the rents would pay off all these debts, interest and costs due and pressing — in fact, that certain responsible parties were ready and willing to take the land and pay said liabilities in thirty months from that time; yet the court refused to rent the land, but directed the same to be sold, which your petitioner assigns as a grievous error.
“Fifth. The court erred in refusing to exercise the discretionary power in the decretal order made on the 13th day of October, 1877, and direct the renting of said land for a sufficient time to pay the debts of defendant, Morelicad, as prayed for in the petition of defendant.
“Sixth. The court erred in deciding that under the law of this State it had no discretion to exercise in regard to the renting of said tract of land for the purpose of paying the debts aforementioned.
“Seventh. The court erred in directing a sale of the entire tract of land mentioned in complainant’s bill to satisfy the judgments of "W. J. II., FT. Goff, C. C. Cole, &c., under the circumstances, because the record shows that there were other and prior liens of long standing, amounting to six thousand nine hundred and five dollars and twenty-four cents, 'as appears from Commissioner Powell’s report.”

These assignments of error of the appellant I propose for the sake of convenience and brevity to consider together. The plaintiff filed his bill at April rules, 1876, and the decree of sale appealed from was not entered until the 8th day of October, 1877. Still the appellant never answered the bill, as we have seen. There were two orders of reference to a commissioner of the court, the first made in July, 1876, and the second in April, 1877, of both of which references the appellant had actual notice. The appellant excepted to the first report of the commissioner but did not except to the second report of the commissioner, which removed the grounds of the appellant’s exceptions to the first report. It fully appears, that the appellant had full and ample time and opportunity to take testimony before the commissioner to prove the value of the land as well as the value of the annual rents and profits of the land prior to the time, when said commissioner made his respective reports, and prior to the making of said decree of sale. It furthermore appears that he had ample time and opportunity before said decree of sale was made, to file his answer setting up most of the matters stated in-his petition, and to ask the court to decree the renting of the land instead of the sale thereof. But of each and all these rights and privileges he utterly and wholly neglected to avail himself; and he fails to show in his petition any sufficient reason or excuse in a court of justice for his omission or neglect in this respect. The decree of sale, as we have seen, was made and entered on the 8th of October, 1877, and the appellant did not file his said petition praying the .court to set aside said decree of sale until afterwards and on the 13th day of October, 1882, which was most probably near the close of that term of the court, which, it seems, convened early in September.

“Upon a bill to enforce a judgment-lien, the court may decree a sale of the land; but it is not bound, and ought not to decree such sale, if the rents and profits of the land will satisfy the liens charged upon it in a reasonable time, unless consent to such sale be made. What is a reasonable time is a matter of discretion by the court. The discretion so to be exercised is not an arbitrary one, but a sound discretion in the interest of fairness and prudence toward all the parties and is of course reviewable in the appellate court. To have the real estate rented rather than sold is a privilege accorded to the debtor and others interested, and they must exercise it in the inferior court; and the decree must show that they asked a rental of the property, and it was refused, before the decree for that reason, will be reviewed in the appellate court. The inferior court must be called onto say, whether in a reasonable time the rents and profits of the real estate will pay the liens charged upon it; and this discretion must first be exercised by the court below, before this court will revino the decree of said court; and upon such review this court will not reverse it unless it appear that the court erred in the exercise of that discretion.” Rose & Co. et al. v. Brown et ux., 11 W. Va. 122.

To bave the real estate rented rather than sold, it is true, is a privilege accorded to the debtor under certain circumstance; but to entitle the debtor to have the benefit of this privilege he must exercise reasonable diligence in claiming it in the court below, and he must ask a rental of the property, before the decree of sale is entered, unless he shows to the courtbelow a good and sufficient reason, why he did not ask it, before the decree of sale was entered. When a defendant has had ample time to make a particular defense to a suit and has not done so, and shows no sufficient reason, why he has not before made such defense, he cannot be permitted to come in at the last moment and raise such defense, and have the cause sent back to a commissioner or otherwise delayed; but the answer raising such defense may be filed, but under such circumstances cannot delay the hearing of the cause. Wyatt v. Thompson et al., 10 W. Va. 645.

In this case the appellant was examined as a witness before the commissioner, and he neither gave nor offered any testimony tending to show, that the annual rents and profits of the real estate would pay the debts or any part thereof in any time whatever. In tact he neither gave nor offered any evidence on that subject before the commissioner or otherwise before said decree of sale. The appellant, as we have seen, neither filed nor offered to file an answer to the bill, or in any way or manner aslc the court to rent said reahy before said decree of sale, and he fails to show in his petition any good or sufficient reason for his said failures or even any of them. In his said petition to the court below the appellant states, that he has in his possession papers showing, that his indebtedness to Mrs. Lee, executrix, &c., is not as great as reported by the commissioner by the amount of nearly one thousand dollars; but he does not exhibit said papers or any part of them, and he fails to show or state any good or sufficient reason, why he did not present said papers, if any such he has, to the commissioner, before he made either of his reports. The commissioner in his first report says:

“Before referring to the matter which I am specially called upon and' directed to make report, I desire to inform the court in this manner as to the cause of delay in completing this report, and the apparently large sum taxed as the fees for the same. The depositions show continuances from day to day and from time to time. These were all made at the request of the defendant Morehead, who has caused the delay irom time to time for no reason that I could see except to prevent the completion and filing of this report. Many of these continuances were made by me in consideration that he would produce and file the receipts given him for the payment of interest to George H. Lee, deceased, or to his personal representative since his death upon the judgment hereinafter set out, and notwithstanding his repeated promises to produce said receipts, for some reason known to himself he has not produced them, and I have been compelled to make up my report upon that judgment upon the admissson in writing ot T. ~W. Harrison, Esq., counsel for Virginia Lee, executrix of George Ii. Lee, deceased, filed with this report.”

The appellant in his said petition also states, “that in the year 1874 he made sale of two acres of the land mentioned in complainant’s hill to Roberta Real, for which he gave to her a title-bond; that the said writing was placed upon the records in the clerk’s office of .the county court of Wood county on the 22d of July, 1874, in Deed Book Ho. 35, page 6; that the said Roberta Heal is not made a party to the suit of W. J. Ilill against your petitioner and others in complainant’s hill in this said cause filed, nor are her interests protected in said decree aforesaid.” It is a sufficient reply to this suggestion and objection of the appellant to say, that the last clause of said decree of sale is as follows : “It appear ing to the court that the said Morehead has sold two acres of said one hundred and thirty-eight acres of land to Roberta Heal, as appears by his title-bond oí record, bearing date 22d July, 1874, it is ordered, that said commissioner do except from any sale made by him hereunder the said two acres of land.” The record does not show, that the appellant applied to the court for a continuance of the cause, before the said decree of sale was entered of record by the court, for any purpose, and it nowhere appears in the record except in the appellant’s petition to the court below, to which I have referred, that appellant at any time made any claim to the court, that he was entitled to any credits upon the Lee judgment, which had not been allowed to lmn. llio statement of the court below in its said decree of sale is a sufficient reply to the appellant’s said seventh assignment of error.

Bor the foreging reasons I see no error in the said decrees rendered in this cause on the 8th and 18th days of October, 1877; and the same must therefore be affirmed, and the appellant must pay to the appellees thirty dollars damages and their costs about their defense of the appeal and supersedeas in this cause in this Court expended; and this cause must be remanded to the said circuit court of "Wood county for such further proceedings therein to be had, as are in accordance with the principles and rules governing courts of equity.

Judges Green and Johnson OoncuRbed.

DECREES AEEIRMED. CAUSE B.EMANDED.  