said Point Pleasant Furniture Company, and that the extra work and labor was done in and upon the said premises in the affidavit hereto attached, described,' and in the affidavit it is called the property,' being two lots and five acres, which were conveyed to the Point Pleasant Furniture Company by deed dated December 11, 1891, as above recited. The president of the blowpipe company swore to the account on behalf of his company, and virtually said in so many words: "This account for $1,712.50 is a just and true account, due said company, after allowing all credits. The following is a description of the property intended to be covered by the lien, viz.: Lot No. 1 in tier 6, and Lot No. 1 in tier 5, of the town of Point Pleasant, and a certain tract of land, estimated to contain five acres [giving the metes and bounds] being the same lots and tract of land conveyed to the Point Pleasant Furniture Company by the Kanawha Lumber & Furniture Company by its deed bearing date on the 11th day of December, 1891, and of record in the clerk's office, etc., to which deed reference is here made; which said premises described in said deed are the premises of the said Point Pleasant Furniture Company.' 'Premises,' the real estate conveyed (in this case conveyed in fee simple) with reference to the deed of conveyance, is also used in describing the property. I do not see how any more positive, explicit, and unequivocal designation could be made of the name of the owner. It is, in this regard, a substantial observance of and compliance with the requirements of the statute, that has been held to be sufficient."

The opinion purports to quote the mechanic's lien, but, upon an examination of it, we fail to find the words "which said premises described in said deed are the premises of the Point Pleasant Furniture Company," contained in it. It was said that the objection would be well taken if the designation in the description of the property stood alone, but that, when read in connection with the account proper, it names and designates the owner in a plain and unequivocal manner, but we fail to see that the designation in the account furnishes much aid to the designation given in the description of the property. It says "delivered and placed on the premises of the Point Pleasant Furniture Company." Are the premises referred to the same as those against which the mechanic's lien was filed? Because the machinery was "delivered and placed upon the premises" can it be said from that the lien was filed against the same premises upon which the material was delivered? And again, was the Point Pleasant Furniture Company the owner of the premises, or the lessee thereof? As to this the account does not show. As an original proposition, individually I would seriously hesitate to hold that the designation of the owner in these liens is such as is required by the statute. It should not be left

to mere conjecture to determine who the owner is. The statute requires the name of the owner, if known, to be given, which evidently means it must be so as not to leave it to a mere matter of conjecture to determine this question. Practically all we have to determine who the owner of the property is, is that provision which shows it was the same property which was conveyed to the Point Pleasant Furniture Company on the 11th day of December, 1891, and that part of the account which says it was delivered upon the premises of the company. The lien was filed in 1892, nearly a year after the conveyance of the property to the furniture company. Are we to assume that, because a conveyance of property was made to it, it continued to own this same property a year afterwards? The simple assertion that, some time in the past, the property had been conveyed to the lienor would seem to fall short of such designation of the owner as is contemplated by the statute. But this question has been put at rest by the previous decision herein, which we will not now overthrow. It is said, however, that the designation of the owner in the lien of the Moore Carving Machine Company does not come up to that given in the lien of the plaintiff. The designation is the same, except in the account proper of the latter there is no mention of the machinery having been delivered and placed upon the premises of the furniture company, but, as we have observed, this detracts very little, if anything at all, from the designation of the owner. And again, in the affidavit of the latter lien, it is said "that the annexed and attached account is, as he verily believes, in every respect a just and true account of the work and labor done and performed, and material and machinery furnished by the said Moore Carving Machine Company to and for the Point Pleasant Furniture Company, a corporation, for the altering and repairing its manufacturing building, being the same Point Pleasant Furniture Company mentioned in the annexed and attached and foregoing account." The former decision in this case is recognized as controlling here, and therefore we hold the mechanic's lien good, and, this being so, the demurrer was properly overruled.

These two mechanics' liens appearing upon their faces to be good, we must next inquire as to whether or not they have been established by proof. It is charged, in the answers filed disputing their validity that the labor performed or material or machinery furnished was not furnished under a contract with the owner for the purpose of altering, repairing, or removing the house, mill, factory, or other structure. These liens show that the labor performed, and material or machinery furnished was by virtue of a contract with the owner, and that it was for the purpose of repairing and altering its maunfacturing building. This fills the requirement of that statute. Section 2, c. 75, Code 1899 [section 3111,

Ann. Code 1906]. These allegations being essential to the validity of the lien, it is incumbent upon him who asserts the lien to show the existence of these facts by proper evidence. When we look to the evidence upon this point we find an abundant proof to sus tain these liens. It has been satisfactorily proven that the labor performed and ma. chinery and material furnished was by virtue of a contract with the Point Pleasant Fur. niture Company, and that it was furnished for the purposes set forth in the lien. The Point Pleasant Furniture Company does not answer. It does not deny that this machinery was so furnished. This issue is made by some of the other creditors of the furniture company. We think the court committed no error in decreeing the liens valid and subsisting, and giving them priority over the other creditors of the furniture company.

We now come to the consideration of the assignment of error of Charles E. Hogg, the general receiver. A motion was made by him in the circuit court to set aside the decree in so far as it affected him, which was overruled. He claims that the decree dlrecting him to disburse the funds in his hands as such receiver is personal, and that he should have had notice; that, inasmuch as the money had been loaned out under the order of the court, it was the duty of the court to order him to collect it, and see that it was in his hands before ordering it to be disbursed. The record discloses that the sum of $3,026.75 was paid to the general receiver to the credit of this suit; that, under the order of the court, this money had been loaned out, and, up to the time of the order directing him to disburse it, no order had been made directing or ordering the collection thereof. It is true, the general receiver was summoned before the commissioner to whom this case had been referred, to ascertain and report the amount of money in his hands to the credit of the suit, and the report and evidence returned with it show that the money was paid into his hands, and by him, under the order of the court, loaned out. Therefore, at the time he was ordered to pay out this money, it was not in his hands. It had been, but the court had ordered him to part with it, which he did as directed, and, when this is done, it cannot be said to be longer in his hands or under his control, except by and through the order of the court. High on Receivers, § 178; Beach on Receivers, p. 256. He has the securities taken for the amount loaned, but the question may often arise as to whether or not the fund can be collected from the borrower, and if not, then whether the receiver is liable. A receiver is not a guarantor of a fund after having loaned out or invested the same under the order of the court. If he has complied with the court's order, Invested the money as directed, or loaned it as required, then there can be no 11ability attached to him, unless he has been guilty of some negligence or wrongdoing in

connection therewith. Therefore, if a decree directing a receiver to pay out a stipulated sum of money is personal, we can readily see the injury which might result to him when, at the time of the entry of the decree, the funds were not actually in his hands. It is contended by the appellees that the receiver took the note in his individual name and not as general receiver, that interest, as required by statute, had not been collected from time to time; that he surrendered part of the security without obtaining other security; and that he failed to report to court the status of the fund; and that all this goes to show that, if the fund or any part thereof is lost, he should be held personally liable therefor. These questions are not now before us for consideration. There is no dispute that the money was paid to the receiver, that it was loaned out, and that it has not been collected. There is nothing here to show that the fund has been lost or that there is any likelihood that it will be lost, or that legal interest will not be paid by the borrower, or that the receiver, when ordered to collect the money, will not be able to collect the entire sum loaned, with all legal interest thereon. When the receiver has been directed to collect these funds and fails to do so then will be the proper time to inquire into these matters. The question will then arise as to whether or not he has fulfilled the requirements of the law, and has obeyed the order of the court in reference to the fund, and as to whether or not he has handled the same in that ordinarily careful manner which is required by law of him, and if, upon an investigation of this question, the court should find that the money or any part thereof has been lost through the negligence or misconduct of the receiver, then, of course, to that extent he and his sureties on his bond will become personally liable.

Is the decree ordering the receiver to disburse the fund personal? This seems to be well settled in this state. In Crawford v. Fickey, 41 W. Va. 544, 28 S. E. 662, it is held that an order that a receiver pay a fixed sum to a certain person is a personal judgment or decree against the receiver, and also in Rickard et al. v. Schley et al., 27 W. Va. 617, it is held that a decree against a general receiver of the court, requiring him to pay out of the funds in his hands to a party in the cause for which the decree is rendered, a certain sum, is a lien on the lands of such general receiver, and the person entitled to the benefit of such judgment or decree is to be deemed a judgment creditor, and may enforce his lien as other judgment creditors, by a suit in equity. Our Code 1899, § 1, c. 139 [section 4141, Ann. Code 1906], provides that a decree or order requiring the payment of money shall have the effect of a judgment for such money, and by section 2, same chapter [section 4142, Ann. Code 1906], it is provided that persons entitled to the benefit of any decree or order requiring the payment of money shall be deemed judgment creditors, and that

execution may Issue thereon. The Court of, Appeals of Virginia, in Lee v. Swepson, 76 Va. 173, held a decree against a receiver making sale of real estate and collecting the purchase money, directing him out of the fund reported in his hands to pay certain creditors therein mentioned, to be a personal decree. This decision was predicated upon sections 1 and 2, c. 182, of the Code of Virginia 1873, which is the same as our statute above referred to.

The decree against the receiver being personal, should he have had notice? Where money has been paid into the hands of a receiver to the credit of a suit, it is not necessary to give him notice before entering an order directing a disbursement of the fund. The record shows the amount of money which went into his hands, which would remain there unless ordered out by the court, and if so, the record would show what disposition was made of it. He being an agent or officer of the court, his possession is regarded as the possession of the court, and he is always subject to the court's order. The Supreme Court of Appeals of the United States has held that he can appeal from a decree ordering him to pay a specific sum of money found due upon a settlement of his accounts out of the fund in his hands as such receiver. Hinckley v. Railroad Co., 94 U. S. 469, 24 L. Ed. 166. In Crawford v. Fickey, supra, Judge Brannon, speaking for the court, says: "But the point is made by counsel that the receiver was no party to the suit in which the decree against him was made, and no notice was given him, and it is void as to him. He is the officer of the court. Must he have notice before any order can be made requiring him to pay? Of course, courts should be careful, before decreeing him to pay fixed amounts, to see that they are in his hands. But he is always before the court." "The receiver's right to appeal in all matters relating to his official conduct, his accounts, and orders of court relating thereto, is well established. In such case he, in effect, occupies the position of a party to a suit." Smith on Receivers, § 417. We must now inquire as to whether the court correctly decreed against the receiver, under the facts disclosed by the record. A general receiver into whose hands certain funds have been paid to the credit of a particular suit, is at all times before the court so far as the distribution of that fund is concerned, and no process or notice is necessary for the purpose of bringing him before the court. He is the servant or agent of the court-the person appointed as the custodian of the fund. The court can handle the money only through an officer or agent, and, when a receiver has been appointed and accepted the trust by appearing and taking charge of the fund, he is the arm of the court, and must hold the money subject to its order, being ready at all times to answer any call it may make. But, when he has

parted with the money by investing it or loaning it out in obedience to the court's order, he is not required to have the money in court for distribution until he has been ordered to collect it and has collected it, or is guilty of such misconduct or mismanagement of the fund as to lay himself personally 11able. And a receiver is not personally liable until misconduct or mismanagement is shown, and not then unless such misconduct or mismanagement has resulted in loss to the estate; he is only required to exercise ordinary care in the management of the property intrusted to him, and so long as he obeys the orders of the court and exercises that degree of care, he cannot be held personally liable. When he took the money here, he did it under an order of court which directed him to "loan the said money, taking good security therefor, and further hold the same to be distributed under a future order of the court." This order plainly directed the money to be loaned, which the receiver did, and, having done so, it would be impossible for him to further hold it to be distributed under a future order of the court. Where a fund has been paid into his hands, and there has been no order directing him to dispose of it, it is then in the hands of the court, and, without notice or other proceeding, an order may be entered directing a distribution of it. When an order is made directing the fund to be paid out by a receiver, it should direct the payment to be made out of the fund in his hands as such, and should not be in the form of a personal Judgment, unless it be a proceeding against him to charge him personally on account of misconduct in relation to the trust, or misappropriation of the fund. "In an action against a receiver in his official capacity, a judgment against him is in form against him officially, not personally, and is to be satisfied out of the trust funds. A judgment in the ordinary form is improper; it must show on its face that it is against the receiver as such, and be made payable out of the funds held by him in such capacity in the due course of the administration of the receivership." Beach on Receivers, § 720, p. 767. It is an order made by a court to its officer, holding in his hands funds of the court which are in custodia legis, and which are to be used by such officer in compliance with the order. Before such order is entered it should, by proper proceedings, be ascertained that the funds are in the hands of the receiver. It is the court paying its fund through its officer or agent, and it should not compel him to pay out that which he has not, unless his failure to have it is attributable to his fault. If the receiver fails to obey the order of the court to collect the fund, he may be proceeded against as for a contempt. If he is unable to collect the money on account of the insolvency of the security, and if the loss cannot be attributed to his fault, of the receiver then there can be no personal ability

upon him, but, when his fallure can be attributed to his fault and negligence, the court may give a personal decree against him, or give direction, by proper order, to have suit brought against him and his sureties on his official bond. By section 15 of chapter 133 of the Code of 1899 [Code 1906, § 4018] a circuit court is authorized to appoint a general receiver, whose duty is prescribed under that section to be, unless otherwise specially ordered, to receive, take charge of, and invest in such stock or other security as the court may specially order and in the manner required by such order, all money paid into court or other place, and standing subject to the order of the court, and all money so paid under any judgment or decree of the court. and to pay out and dispose of the same as the court may order or decree. And by section 16 of the same chapter it is provided that the certificates of stock, or other security in which the money in the hands of the receiver has been invested, shall be taken in the name of the general receiver as such, and be kept by him, unless otherwise specially ordered, and he shall have power to sell, transfer, or collect the same, when ordered by the court to do so, and not otherwise. And by section 19 of the same chapter he is held liable for all money which comes into his hands as such receiver, and, if he fails to invest the money as required for the space of 60 days after the same shall be or ought to have been received by him, or if he shall fail to pay out any money, when required by the court to pay the same, for the space of 60 days after it shall have come into his hands for the purpose of such payment, he shall be charged with interest from the date such money was, or ought to have been, received by him until such investment or payment is made, unless, upon good cause shown to the court, it shall otherwise order. It will be seen from these sections of the statute that the receiver is to receive the money and hold it until required by the court to invest it, and, when he has been ordered to invest it and has invested it as required, then he cannot sell, transfer, or collect it unless ordered by the court to do so. The receiver has no control over the fund except to handle it as the court orders, and when he fails to invest it after a certain time, or to pay out the funds which have come into his hands when ordered to do so, he shall pay interest, etc.

The United States Blowpipe Company, Moore Carving Machine Company, and the Clapp Patent Case Company cross-assign error as follows: First, the court erred in not requiring J. S. Spencer to account for the $5,000 received by him under the sale made by virtue of said deed to Smith, trustee. Second, the court erred in overruling their exceptions to Commissioner Beller's report. Third, the court erred in not requiring compound interest to be charged against the borrower of the $3,000.

As to the third assignment, it will suffice to say that, as the record discloses that, at the time the decree of reference was made, the money was not in the hands of the receiver, but had been loaned out under the order of the court, there should have been no reference to ascertain the amount in the hands of the receiver, but, as we have observed, he should have been directed to collect it, and in doing so it will be his duty to collect the whole amount due, including such interest as the law allows in such cases.

The second assignment involves the exceptions of the plaintiff and the Moore Carving Machine Company to the commissioner's report. The report is first excepted to on the ground that the commissioner did not charge the general receiver with interest compounded from January 1st each year since he received the fund. What has been said as to the third assignment applies here, and, inasmuch as the decree will have to be reversed in so far as it affects the general receiver, the commissioner's report, in so far as it finds the amount in the hands of the general receiver, including principal and interest, will be set aside that all matters pertaining thereto may be settled in a proper

manner.

The second ground of exception to the report is that the commissioner did not allow compound interest to the plaintiff, and defendant Moore Carving Machine Company. It is difficult indeed, to see upon what principle they base such claim. All they can recover is the amount of their debt, with its legal interest. In no event would they be entitled to compound interest. If compound interest should be charged against the receiver or borrower, it should be paid to the creditors, according to their priority, as decreed.

As to the first assignment, it does not appear that the circuit court has passed in any way upon this question. Therefore, as to it there is nothing for us to review. This question should first be disposed of by the circuit court. Monroe v. Bartlett, 6 W. Va. 441.

The decree of the circuit court, in so far as it orders the receiver to pay out certain funds, is reversed and annulled, and the report of the commissioner, in so far as it finds and reports the amount of money paid into the hands of the receiver and loaned out and charges principal and interest, is set aside, and in all other respects the decree is affirmed.

(61 W. Va. 221)

GARRETT v. GOFF. (Supreme Court of Appeals of West Virginia. Jan. 15, 1907.)

1. DEEDS REQUISITES-DELIVERY.

Delivery is an essential part of the execution of a deed. It does not take effect until there is a delivery to the grantee, either actual or constructive.

[Ed. Note. For cases in point, see Cent. Dig. vol. 16, Deeds, §§ 116-118.j

A deed is incomplete, and passes no title, until delivery.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 16, Deeds, § 116.]

5. SPECIFIC PERFORMANCE - EVIDENCE WEIGHT AND SUFFICIENCY.

Where a plaintiff files his bill for specific performance of a parol contract entered into with the defendant for the exchange of lands, and the defendant files his answer, setting up the same parol contract, but materially varying in terms from those claimed by the plaintiff, and praying affirmative relief in the specific performance of the contract according to the terms thereof set forth in defendant's answer, and the plaintiff fails in his proofs to sustain the allegations of his bill, but the defendant establishes the contract in all its terms as set out in his answer by competent proof, clear, definite and unequivocal, the court will require specific performance thereof for the defendant. 6. SAME-PARTIAL PERFORMANCE,

When in such case specific performance on the part of the plaintiff cannot be had in the exact terms of the contract as so established by the conveyance of his land to the defendant by reason of a deficiency in the number of acres sold by him to defendant, the defendant may elect to have performance thereof with abatement for the deficiency in the land.

(Syllabus by the Court.)

Appeal from Circuit Court, Roane County. Action by W. W. Garrett against L. S. Goff. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

Pendelton & Boggess and O. J. Chambers, for appellant. J. M. Harper and Thos. P. Ryan, for appellee.

MCWHORTER, P. This is a suit for the specific performance of a parol contract for the sale or exchange of lands between W. W. Garrett and L. S. Goff, of Roane county. The contract was made on the 19th day of September, 1898. Garrett was to convey to Goff 1452 acres of land in Harper district of said county, and was to have in return 125 acres of land from Goff situate near the town of Spencer, in Spencer district, and $500 in money. W. W. Garrett filed his bill in the circuit court of Roane county at the March rules, 1900, alleging the contract as he claimed it to be; that he sold his sald farm in Harper district, supposed to contain 145 acres, to the said Goff for the 125 acres and $500, to be paid $250 in October, 1898, and $250 in 12 months from the 19th of September, 1898, said payments to draw interest from their date until paid; that the first of said notes had been paid, but the second remained unpaid; that they deliver

ed to each other, respectively, the possession of the land exchanged, and had continued in possession cultivating and improving the same; that it was distinctly agreed and understood between the parties that plaintiff should convey to defendant his farm in Harper district in consideration of said 125 acres of land and the $500 to be paid as stated, and that plaintiff should reserve a vendor's lien in his deed to secure the payment of the unpaid purchase money, and that defendant should convey to plaintiff by apt and proper deed the 125 acres of land, and pay the said sum of $500 in consideration of plaintiff's said farm; that each of said deeds was to be made and delivered as soon as practicable after said 19th day of September, 1898; that plaintiff in pursuance of said agreement had prepared and tendered defendant an apt and proper deed, with covenant of general warranty, conveying him said farm in accordance with their said agreement, but that defendant refused to accept it; that plaintiff had repeatedly requested defendant to convey to him said 125 acres in accordance with their agreement, but that defendant had failed and refused to do so; that the sale of plaintiff to defendant was a sale by the boundary in gross, and not by the acre, and that defendant agreed to let plaintiff have said 125 acres and pay plaintiff said $500 for his farm in Harper district in gross by the boundary, and not by the acre, and brought into court his deed with general warranty for said land in Har per district, "to be held as an escrow and delivered to said defendant when he fully complies with his part of said contract”— and prayed that the contract be specifically enforced, and that the defendant be required to convey said 125 acres of land to plaintiff by apt and proper deed, with covenants of general warranty, and that the farm sold by plaintiff to defendant be sold to pay off said unpaid purchase money. The deed tendered with the bill, to be held in escrow, was dated December 30, 1899, executed and acknowledged on the 2d day of January, 1900, and expressly reserved on its face the vendor's lien to secure the unpaid installment of the purchase money; and, after the description of the land by metes and bounds, the deed contained the following: "Supposed to contain 145 acres, but this is a sale in gross and not by the acre."

The defendant filed his demurrer and answer to said bill, admitting the making of a parol contract on the 19th day of September, 1898, but denied that the contract was correctly stated and set out in the plaintiff's bill, and denied that plaintiff agreed to exchange his farm in Harper district by the boundary upon any supposition that it contained 145 acres, but averred: That said contract or agreement was as follows: "The plaintiff, in said trade, represented to this defendant that he would trade him his home farm' in Harper district containing 110