45 W. Va. 654 | W. Va. | 1898
This suit was in equity, in the circuit court of Barbour County, to sell a tract of land for purchase money, for which a lien was reserved in a deed from Maggie Bennett, the plaintiff, to W. N. Pierce, defendant, resulting in a decree of sale, from which Pierce appeals.
Pierce tendered an answer, which was rejected. . The court went on to decree on the bill as confessed. The appellant assigns the rejection of this answer as error. The answer was rejected on mere general objection, no cause of objection being specified. I suppose it was intended as, in effect, a demurrer, asserting that the answer presented no bar. I question whether, under strict equity practice, an answer can thus be rejected without exception. Likely, if the answer presents no bar to the bill, its rejection on a general objection would be good on appeal. It would be dangerous F the answer contained some good, some bad, matters, as the overruling of a general objection would not then be error. There is no demurrer to an answer. Objection must be made by exception. Exceptions are not formal, but must be written and point out grounds of exception. It is better practice to use them, though I think the practice is loose with all of us in this State under this head. We let answers go in for what they are worth, and go on to proof on both sides, and spend much time and cost, and at last the whole answer, or parts of it, are held to present no bar. The court would, at the start, have rejected the whole or parts of the answer if called on by exceptions, and thus saved much cost and delay. By exceptions, we eliminate from the case answers presenting no bar in law, or such parts as do not, and shorten the case. 1 Enc. Pl. & Prac. 895; Richardson v. Donehoo, 16 W. Va. 685. And I just notice that Judge Lucas entertained the same doubt I entertain, whether such an objection can avail a plaintiff, in Arnold v. Slaughter, 36 W. Va. 589, (15 S. E. 250). Such general objection may, under the liberal rules of equity practice, be good where it goes to the whole answer as presenting no bar, but will not avail where only some matters are objectionable.
Next comes the question, shall.Pierce be compelled to pay the balance of purchase money with these grave defects in the title of his grantor? Heavner v. Morgan, 30 W. Va. 335 (4 S. E. 406), and Heavener v. Morgan, 41 W. Va. 428 (23 S. E. 874), would answer “No,” as those cases say that equity will not force a purchaser to complete an 'executory contract, and pay purchase money, when there is a defect of title. But that was a case of an execu-tory contract; this is a case of a deed with general warranty. Must the purchaser pay, and wait till he is attacked, and then resort to his warranty? There is a difference, but the subject is so trite that I will not redis-cuss it, but simply refer to opinion in McClaugherly v. Croft, 43 W. Va. 270, 272 (27 S. E. 246), showing that, where one accepts a deed with general warranty, he will not be compelled to pay purchase money, and thus lose a fund in his own hands for indemnity, where the grantor is insolvent, and title defective. There are two reasons why that law should be applied in this case. The answer alleges Maggie Bennett’s insolvency. Under the general objection to the answer, it must, as if on demurrer, be taken as true. Butit alleges, and it is shown by the deed, that Maggie Bennett is-a married woman, and therefore her warranty does not bind her to the personal covenant of warranty, but only to pass her estate in the land. Code 1891, c. 73, s. 6; Sine v. Fox, 33 W. Va. 521 (11 S. E. 218).
Counsel argue that Pierce must wait till his title is attacked. Not so. He is a defendant seeking to keep in his pocket a fund for his indemnity.
Counsel for Mrs. Bennett also say that it has been seventeen years since these defective deeds were made, and that the rights of these married women were barred' by [imitation and laches. As to limitation : If this land was not separate estate, limitation would not operate against the married women until the death of their husbands ; otherwise, if it were separate estate. Code, c. 104, s. 3; Randolph v. Casey, 43 W. Va. 289 (27 S. E. 231). The record does not tell us when John Dalton died, and the land vested in his children; whether it was before or after April 1, 1869. The husbands are presumed to be yet living. Moreover, there is nothing to show that Rolley C. Bennett, grantee in the defective deeds, or Pierce, grantee of Maggie Bennett, ever had actual possession. Deeds confer constructive possession; but, under the statute, actual possession must be shown by him asserting it. Industrial Co. v. Schultz, 43 W. Va. 470 (27 S. E. 255); Koiner v. Rankin's Heirs, 11 Grat. 420; Overton's Heirs v. Davisson, 1 Grat. 211; Busw. Lim. § 236. It is unquestionable that where a purchaser takes actual possession under a deed purporting to convey legal title, and not under an executory contract, the possession of grantee is
So, if it should appear that John Dalton died after April 1, 1869, descent casting on his daughters a separate estate, and that Rolley C. Bennett and Pierce, taking their actual possession, had such possession for ten years, the married women would be barred, and time would cure the vice in said deeds ; but the facts on which this proposition rests are not before us. It is not necessary to discuss laches of these married women, as it is a question of statutory limitation. If the statute does not bar out their title, laches will not; and, if the statute applies, it is' useless to consider laches. This rejected answer presented a good bar to the bill until it was repelled, and it was error to reject it. We therefore reverse the decree, and remand the case, with direction to allow the answer to be tiled.
Reversed.