49 W. Va. 630 | W. Va. | 1901
On the 29th September, 1866, Philip P. Bailey conveyed to John S. Douglass and Henry S. Calfee, trustees, certain prop-
Defendants W. D. Calfee and B. H. Bailey demurred to and answered said bill., denying all the material allegations thereof; denying that they purchased from John M. Bailey, but that they purchased alone from II. W. Straley for the sum of four thousand nine hundred and fifty-nine dollars, the amount he paid three thousand and forty dollars, and one thousand nine hundred and nineteen dollars, the amount of Straley’s judgments against said John M. Bailey. Averring that on the 13th of March, 1886, they purchased the land from H. W. Straley; that after the sale was confirmed to Straley he took possession and when respondents bought from Straley they took possession and have ever since remained in possession, that shortly after Straley purchased and about the time respondents purchased from Stra-ley John M. Bailey removed from the land to the city of Blue-field where he resided at the time of his death, which occurred on or about January 10, 1890. Denying that there was any arrangement or understanding with John M. Bailey in regard to the purchase. Denying that James M. Bailey and his wife or either of them ever paid John M. Bailey for a portion of said land out of the proceeds of her Bland County land, and denying ■ that John M'. Bailey always recognized said portion of land as the property of plaintiff’s wife, and after her death as belonging to her children; denying that they had knowledge of any equities in the infant plaintiffs; denying that they or either of them had any arrangement, agreement or understanding with John M. Bailey or any knowledge of any on the part of H. W. Straley. Plaintiffs filed their amended bill, referring to their original bill, making it a part of the amended bill and correcting same, alleging that some time before the sale by trustee Douglass, John M. Bailey entered into a distinct agreement with Ií. W. Straley that he should become the nominal purchaser of said.land at the nominal sum of three thousand and forty dollars, that by said agreement the beneficial or equitable title and interest was to remain in said John M. Bailey, that the legal title, if conveyed to Straley,. was only to secure him for any part of said three thousand and forty dollars paid or advanced by him on the Shu-mate debt, that relying on said agreement said John M. Bailey was induced to allow Straley to become the ostensible purchaser of said land for the insignificant sum of three thousand and
Defendants W. I). Calfee and E. II. Bailey also filed their joint answer to said amended bill referring to their answer to the original bill, and making it a part of their answer to the amended bill, and deny positively all the allegations of the amended bill charging them with knowledge of any interest that John M. Bailey had in the purchase by Straley, or that they purchased from John M. Bailey or that he had any interest in the land, whatever after the sale to Straley and denied all alegations of fraud; averred that they purchased from Straley alone in
Sarah Bailey filed her answer to the amended bill admitting its allegations and claiming dower in the lands as the widow of John M. Bailey, averring that Straley was only the ostensible purchaser, and held the land as .trustee while John M. Bailey was the real owner of the equitable estate in said lands; that Calfee and Bailey acquired nothing but the legal title by their conveyance, from Straley;,that having failed to comply with their contract of sale made with John M. Bailey, respondent is entitled to dower in kind in said land, at any rate to a gross sum in lieu of dower and to a distributive share of the personal estate of John M. Bailey when same is collected, and prays that such proceedings be had as will secure to her her interests, etc.
Plaintiffs filed their second amended bill referring to and making a part thereof their former bills, and alleging that the plainiiffs, children of Julia Bailey, arc infants, that in 1879 and 1880 their mother made two oral contracts with John M. Bailey, whereby she purchased from him about two hundred acres of the west end of his farm, that for the purchase made in the spring of 1879 she was to pay six hundred dollars and for that in the spring of 1880 she was to pay nine hundred dollars, aggregating for the entire purchase one thousand five hundred dollars, that the price of one thousand five hundred dollars was paid in full by Julia a short time after the purchase was made, and the land purchased by her was laid off to her by said John M. Bailey by metes and bounds, that in pursuance of said verbal contract she took possession of the land so purchased and remained in possession until her death and that her husband and children remained in possession after her death, that said Julia made valuable improvements on said land so purchased by her; that by her said purchase under said oral contracts she became the full and complete owner of the equitable title to said land in fee simple; alleges an agreement and an arrangement made on the day of sale by Douglass, trustee, between John M. Bailey and IP. W. Straley that when Douglass offered the land for sale
Defendant Ií. W. Straley filed his demurrer and answer to the second amended bill of plaintiffs, as did also W. D. Calfee and E. Ii. Bailey their joint and separate answer, denying all the material allegations of the bill referring to their former answers and malting them parts of their answers respectively, and denying the new allegations of the second amended bill.
Sarah Bailey filed her bill in the same court against W. D. Calfee and R. Ii. Bailey, setting up her dower as the widow of John M. Bailey, in the tract of land sold by Douglass and purchased by Straley; alleging the verbal sale of a part thereof to said Calfee and Bailey by John M. Bailey, reserving the two hundred acres before sold to wife of James M. Bailey, and, also the Piney IT ill tract, as alleged in the bill and amended bills of James M. Bailey and others, and claiming dower as such widow in three several other tracts, one of two hundred acres sold in the chancery cause of A. J. Bailey v. J. M. Bailey and others, and purchased at commissi oner’s sale by Ii. Burén Bailey for the sum of six hundred dollars, and sold by said II. Buren Bailey to Wm. D. Calfee and now in possession of said Wm. D. Calfee, and another of fifteen acres and another of seventy-five acres which were sold in the chancery cause of Wm. D. Calfee and others v. Bank of Princeton, and others, and purchased by Wm. D. Calfee; that she is informed that R. II. Bailey claims an interest in all said tracts of land, and prays that defendants be required to answer the bill, that her dower be assigned her in kind or a gross sum in lieu thereof, and that she recover damages for the detention thereof; that all proper accounts be taken and inquiries made and for general relief; and said Sarah Bailey filed her amended bill against said Calfee and R. Ii. Bailey and George P. Bailey, Mary E. Rowland and James II. Wilson, and refers to and makes a part of it her original bill, and makes in effect the same allegations that are contained in the bill and amended bills of James M. Bailey and others concerning the sale by trustee Douglass to Ii. W. Straley and the purchase thereafter from John M. Bailey by Calfee and R. Ii. Bailey for the sum of seven thousand dollars, which sale she alleged included the two hundred acres sold by John M. Bailey to James M. Bailey and wife, and the Piney Ilill tract; that she was entitled to dower in the excess for which said land sold over the sum of
Calfeo and R. TI. Bailey filed their demurrer and answer to the original bill, denying the material allegations thereof; all verbal agreements or understandings about buying the land from John M. Bailey, or that they fraudulently obtained a deed therefor from Straley; aver that the tract of land referred to in the bill as sold in the case of A. J. Bailey v. John M. Bailey, to H. B. Bailey and by him to Calfee was sold for the purchase money due from John M. to A. J. Bailey and when sold brought no more than the purchase money due and costs of suit and sale, and that said land and no part thereof belonged to respondent qr either of them at the time of institution of plaintiffs' suit, nor does it now so belong-to them, and that they had no interest in any of the lands referred to in the bill. These same respondents also answer Hie amended bill, denying its allegations and averring that the several tracts of two hundred, eighty and eighteen acres were sold for the purchase money due on them and not subject to the dower rights of plaintiff and deny that they sold for an inadequate price.
IT. W. Straley filed his affidavit exhibiting therewith the written agreement or contract referred to in the original bill of plaintiffs James M. Bailey and others between IT. W. Straley and W. D. Calfee and R. TI. Bailey under which Calfee and Bailey purchased the lands from Straley, purchased by mm from Douglass, trustee, at the judicial sale, from which it appears that after reciting the purchase by Straley of said lands at the price of three thousand and forty dollars from said trustee, Douglass, Calfee and Bailey agreed to purchase said land from Straley for the said price, and to pay in addition thereto one thousand nine
Depositions of many witnesses were taken for plaintiffs and defendants, to which various exceptions were taken.
On the 16th of February, 1898, the two causes were heard together "upon the original bill and first and second amended bills in the first of the above mentioned causes and upon the joint answer of the defendants, W. D. Calfee and R. H. Bailey, to all of said bills, and upon the plaintiffs’ general replications to all of said answers, upon the separate answer of the defendant H. W. Straley to all of said bills and upon plaintiffs general replication to all of said last mentioned answers, and upon bill of plaintiff in the second of the above named causes, upon the joint answer of the defendants W. D. Calfee and R. H. Bailey to said bill, upon plaintiff’s general replications to said answers, upon all the depositions taken in the causes and upon the record and all the papers in the chancery cause of John M. Bailey v. John A. Douglass, trustee, and others-referred to in said causes and upon all the orders and decrees heretofore entered herein and upon the agreement of counsel that the depositions taken in the first of the above named causes should be read with the second of the above named causes, and was argued by counsel. Upon consideration, and without passing upon any of the exceptions taken to the depositions taken in the cause, the court is of opinion that the plaintiffs in said causes are not entitled to the relief prayed for in their respective bills, and that the same should be dismissed, doth so adjudge, order and decree,” and adjudged costs to the defendants in each case. From this decree the plaintiffs appealed, and say, first, that “the court erred in not excluding the evidence of li. W. Stralej^, W. D. Calfee and R. II. Bailey, as to personal transactions and communications with John M. Bailey, the said John M. Bailey being dead;” and, second, that "the court erred in dismissing the plaintiffs’ bills in said causes, with costs, and in not declaring the sale made by John A. Douglass, trustee, to EL W. Straley, a mortgage, and that said W. D. Calfee and R. H. Bailey held said land as con
In so far as the depositions of H. W. Straley, W. D. Calfee and R. II. Bailey referred to statements made, and conversations held by John M. Bailey to and with the said Straley, Calfee and Bailey, as stated by plaintiffs’ witnesses, they are competent to testify. It is insisted that the bills of plaintiffs James M. Bailey and others are multifarious and should be dismissed on that ground. The prayers of the bill and the first and second amended bills are almost innumerable, and are for the relief of various parties and for many objects, the payment to the infant plaintiffs of the one thousand five hundred dollars, the price of land paid or the conveyance to them of the two hundred acres of land alleged to have been purchased by their mother from John M. Bailey^ This was an independent contract, separate and apart from the other transactions in which the other plaintiffs had no interest. And also for the conveyance to the heirs of John M. Bailey of the “Piney Hills” and for the recovery of rents and profits therefor; and also for the recovery of the balance of seven thousand dollars, the price alleged by plaintiffs to be the amount agreed by Calfee after paying Straley what was due him; also for the assignment of dower in the lands to Sarah, the widow, of John B. Bailey, and also that II. W. Straley be required to account for sums alleged to have been recovered by him on account of deductions made by the creditors of John M. Bailey for the. benefit of said Bailey, which were not paid over by Straley. It is insisted by appellees that the bill and amended bills of plaintiffs should be dismissed because of their laches: “that John M. Bailey and those who claim under him have slept too long upon their rights, if they ever had any.” The sale was' made by Douglass, trustee, under decree of the court on the 6th
For the reasons .herein stated, the decree complained of is affirmed.
Affirmed.