11 W. Va. 449 | W. Va. | 1877
delivered the opinion of the Court:
The bill in this cause was filed in the circuit court of Marshall county, by Harriet Ann Arnold, Evaline M. Arnold, Caroline Arnold and Virginia Arnold, infant children and a part of the legal heirs of Samuel Arnold.) deceased, by their next friend, Friend E. Clark, against Melissa Arnold, widow of said decedent, Albert G. Arnold, Joseph Arnold, Adaline Reese, John Reese, Elizabeth Fish, Milton Fish, Julia Conkle, James K. P. Conkle, Roberta Arnold, now Roberta Homes, all of whom are also children and legal heirs of said decedent, except the husbands of the married females, to set aside the several following named deeds, purporting to be made by the said Samuel Arnold, deceased, on the 23d day of May 1874, and about ten days before his death, conveying lands in Marshall county to the following named persons, viz: A deed to Joseph Arnold for two hundred acres of land; a deed to Albert G. Arnold for two hundred acres of land ; a deed to Elizabeth Ann Fish for one hundred and fifty acres of land ; a deed to Julia Conkle for one hundred and fifty acres of land; a deed to Adaline Reese for sixty-five acres of land; a deed to Roberta Arnold (now Roberta Homes) for one hundred and eight acres of land ; upon the ground substantially that the said Samuel Arnold, the grantor, was, at the time said deeds were made by him, of unsound mind and mentally incapable of making any rational or legal disposition of said lauds by deed or otherwise, and that said deeds were each and all without valuable consideration, and fraudulently and by undue means obtained and procured from the said decedent, while he was mentally incapable of making said deeds, and that they were and are therefore not his voluntary deeds. The bill further alleges that the said Samuel Arnold, deceased, was twice married; and that said deeds provide for each of
The defendants, Albert G. Arnold, Joseph Arnold, George Fish (sometimes called Milton Fish in the record), and Elizabeth his wife, James 1C P. Conlde and Julia his wife, and Roberta Homes, on the first Monday in January 1878, filed their joint demurrer to the plaintiffs’ bill, and for cause of demurrer assigned the following: “That complainants’ bill is filed against the defendants above named, and Reese and wife, who claim title to the six several tracts of land under six several separate and distinct deeds of record from the same grantor, and of the same date, but having no relation to each other otherwise, nor any community of interest therein of any kind.”
In this demurrer there was joinder by the plaintiffs. The same defendants who filed said demurrer, also filed their joint answmr to the bill on the same day they filed their said demurrer, to which the plaintiffs filed their general replication. On the 22d day of June 1875 the cause was heard upon the said demurrer, and the demurrer was overruled by the court. Numerous depositions were taken in the cause, and afterwards, on the 12th day of December 1876, at a special term of said circuit court the following decree was made and entered, viz: “ This cause came on this day to be heard on the bill and exhibits, process duly executed as to defendants, the answer of defendants and complainants’ general replication thereto, the depositions heretofore filed in this cause, and six several deeds sought in the bill to be set aside. After arguments of counsel it is adjudged, ordered and decreed that the several deéds made by Samuel Arnold, deceased, ion the 23d day of May 1874, to-wit: The deed to Joseph
The first question to be determined is: Whether the court erred in overruling the demurrer filed to the bill. The only cause assigned in the demurrer in the court below is that above stated. The point that the bill is multifarious in asking to set aside said deeds, and also for partition of the lands, was not made before the court below. It is true that the demurrer filed claims that the bill is multifarious and proceeds to assign specially the reason why it is multifarious, but it does not make the point that the bill is multifarous, because it asks both to set aside said deeds for the cause therein alleged, and for partition, &o. But in the case of Deem v. Phillips et al., 5 W. Va. 168, a contract and deed were set aside on account of gross inadequacy of price, and on the ground of there being undue influence exercised in its procurement by a son upon his father, who was in extreme old- age and bodily infirmity and mental weakness, and partition of the lands made on bill filed by a part of the heirs-at-law.
It seems to me, that the bill in this cause substantially alleges, that the procuring of said deeds and the making thereof were in fact but one. and the same act; that the making of said deeds was in fact but one transaction. But in addition to this the first section of chapter 79 of the Code of this State and the first section of chapter 124 of the Code of Virginia operated a change very material in'courts of chancery in matters of partition, in authorizing the court in the exercise of such jurisdiction, to take cognizance of all questions of law affecting the legal title, that may arise in any proceeding: Currin et al. v. Spraull et al., 10 Gratt. 145; Cosgray v. Core, 2 W. Va. 353. After a careful consideration of the allegations of the bill and the authorities, my conclusion is, that the court did not érrin overruling the demurrer filed to the bill. Another objection made and error assigned tojthe said decree of the circuit court is, that Adaline Beese
Upon this release, so filed and made part of the record in this cause, the cause was heard by this Court, in connection with the transcript of the record of the cause, filed with the petition of the appellants for an appeal from the said decree of the circuit court. (See proceedings and order of this Court made at the hearing of this cause, June 12, 1877.) It does not appear from the bill, or other pleadings, that said Reese and wife were not residents of this State. The only matter having any bearing upon the subject is an entry made by the clerk of the court at December rules 1879, when the bill was filed, and that entry is, “and an order of publication taken against Adaline Reese and John Reese, her husband.” It does appear in the evidence, that said Reese and wife were in the west at the date of the said deeds. The circuit court having in its decree ascertained and recited that the “process was duly executed as to the defendants,” of which said Reese and his wife were a part, it seems to me that under the authorities above cited, and the case of Mustard v. Wohlford’s Heirs, 15 Gratt. 329, and the principles therein established, and the circumstances and facts of this case, above stated by me, that the appellants cannot object that said Reese and his wife were not before the circuit court in said cause, at or before the rendition of said decree ; although it nowhere appears in the transcript of the record before us, that they were served with process in the cause, except in and by the said recital in the said decree of the court which is appealed from.
This objection and assignment of error is therefore overruled in this cause.
The.only questions now remaining to be considered and determined in the cause-are first: Did the court err in
And second and lastly : Did the court err in its said decree, in referring the cause to a commissioner to ascertain and report the rents and profits of said land,- &e., as it did in and by said decree ?
As to the first question: It appears that on the 19th day of March 1874, the said Samuel Arnold was suddenly stricken down with paralysis at his home in Wetzel county. That subsequently, on the 23d day of May 1874, in Marshall county at the house occupied by the defendants, Fish and wife, the said deeds were executed and acknowledged by said Samuel Arnold, before a justice of said county, and that most probably all the grantees in said deeds were present, except the said Adaline Reese and John Reese, her husband. The wife of said Samuel Arnold, who survived him, and her four infant daughters which she bore by him, were absent at their home in Wetzel county at the time; and it does not appear that they had any notice or knowledge of the making of said deeds, until afterwards. That said Samuel Arnold was married twice during his life, and by his first wife he had the six children who are the grantees in said six several deeds; and by his second wife he had four daughters, who, at the date of said deeds and the commencement of this suit, were infants, the youngest of whom being at the time about seven or eight years old, and the oldest about eighteen years old; that said Samuel, at the date of said deeds, owned the lands in Marshall county embraced in said six deeds, on which all the grantees in said deeds, or most of them, except Reese and wife, resided as tenants of said Samuel and he (said Samuel) at the date of said deeds owned a tract or contiguous tracts of land situate in Wetzel county, containing in the aggregate six hundred or six hundred' and fifty acres, of which some one hundred and fifty acres were cleared. That said Samuel, for some
For the foregoing reasons, I think that the circuit court did not err in cancelling and. annulling each of said six deeds; and according to the case of Deems v. Phillips et al., 5 W. Va. 168, it was not error in the court, after annulling the said deeds, to proceed to appoint commissioners to make partition of the lands.
As to whether the court erred in its order of reference to the commissioner: As has been stated, the said Samuel Arnold died on the 3d of June, 1874; and this suit was commenced on the 26th of October 1874, a little over four months afterwards; and there is nothing in the pleadings or evidence in this cause showing, or tending to show, that the defendants, or any of them, at any time after
For the foregoing reasons 1 see no error in the said decree of the circuit court of the county of Marshall, rendered' in this cause on the 12th day of December 1874; and the same must therefore be confirmed, which is done by and Avith the consent of the said Adaline Reese and John Reese, who appeared in this cause before this Court, by their attorney, J. D. Erring, at the hearing thereof, as well as now, and waived the service of process upon the said Reese and wife, in this court, and the said Reese and rvife, by their deed and by their attorney and counsel, consented to the affirmance of said decree by this Court. And the appellees must recover against the appellants $30.00 damages and costs about this appeal expended in this Court. And this cause is remanded to the said circuit court of Marshall county, for such other and further proceedings therein there to be had, as are in accordance with the principles and rules governing courts of equity.
Decree Affirmed and cause remanded.