The daily telegram. [volume] (Clarksburg, W. Va.) 1901-1926, 1914-07-21
N5AB(){j
Ola Case Of Note Recently De-
cided blythe Supreme Court
of the State.

81 - ~ 6
Following is the syllabus in a re-
cent decision Of note by the state SUI
;preme court:
Lowther ct al v. Lowther-Kauf-
mann Dill and Coal Company ct al.
Wetzel county, reversed in part. aft
frmed in part and remanded. Pof-
fenbarger, Judge.
i. The general creditors Of a
corporation whose property has been
taken over by another one, in consid-
Grafton OF the assumption by 1t Of
the debts of the. former, have an
equitable right, on the Insolvency Of
the latter, to preference in the dis
tribution of the proceeds Of the sale
OF the property derived from their
original debtor, over the claims of
the other general creditors Of the
purchasing corporation, and to have
such property separately sold for the
purpose OF exact assortment of their
rights, unless they have released the
original debtor by complete novation
Of their debts or otherwise.
2. In such case, the renewal by
the purchasing corporation of the
notes Of the other and surrender Of
the old notes by the creditors do not
raise presumption of satisfaction OF
the debts or discharges of the origi-
nal debtor. Nor does an unsatisfied
judgment against the purchasing
corporation, on the renewal notes,
extinguish the original debts by mer-
ger.
8. Nor does the execution by the
purchasing corporation, Of a deed of
general assignment for the benefit of
Its creditors, extinguish such original
debts. even though the owners there
Of have not attacked its validity nor
rejected the benefit of the provision
made for them.
4. In such case. the creditors of
the selling corporation may assert
their equitable right to payment out
Of the property derived from 1t, I'M
der the deed of assignment, even
though 1t fails to recognize such
right, and also under a clause there
of proving, in general terms, for
preferences and priorities obtained
under the laws of the state, prior to
the date of the deed.
s. Such right may be asserted in
creditors suit against the pur-
SAoeAA6 SoAQOAdIAOAt anu II LuS OLu6E
corporation has disposed Of all of its
property. dissolved and surrendered
Its charter, 1t is not a necessary
party to the suit.
s. "A decree of sale Of the prop
erty involved in such suit, which,
denying such right Of preference,
gives debts of the old and new cor
porations an equal status and orders
sale Of the. property as whole. is
erroneous for denial OF the right of
preference and also for direction OF
sale, without proper adjustment Of
liens as to priority.
2. But. II sale had been made I'M
der such decree and confirmed with
out objection, before the appeal
therefron was taken, so much of 1t
as directed the sale will not be re-
versed. On the contrary, such part
Of 1t and the decree of confirmation
will be affirmed, and the decree I'M
der which the sale was made will ne
reversed only in SO far as 1t denied
the right of preference and modified
the commissioners report, in re-
spect to the range and dignity OF the
liens, to the prejudice Of the appel
liant.
8. Except under peculiar and an
omalous circumstances. such as null
lily Of the decree. purchase by a sub
stantial party to the suit or omis-
sion Of persons as parties. Interested
in the property as lienors or other
wise, the title of a purchaser at a
judicial sale is not affected by an err
ror in the decree Of sale.