40 W. Va. 36 | W. Va. | 1894
At July rules 1891, in the Clerk’s office of the Circuit Court of Preston county, Helen A. Berry, plaintiff, filed her hill in chancery against Caroline Wiedman, S. A. Litman, Carl Litman and Mrs. A. J. Morris, heirs of her husband, Oliver Berry, deceased, to compel a conveyance to her of the legal title to a certain house and lot situated in Evansville, in said county. She alleges that the lot was originally purchased and paid for with money advanced to her by her father, but that the deed was made to her husband; that he always recognized the property as hers; .and that.she, with this understanding, during the years 1887, 1888, 1889, built thereon, with her separate funds, a house costing more than the property would sell for. After her husband’s death, which occurred in the year 1891, his heirs set up claim to the ownership of the property, and thereupon she brought her suit to compel a conveyance of the legal title. On the 14th
First, want of proper parties; that the administrator of the personal estate of Oliver Berry should have been made a party. There were no debts, and no decree was sought against the personal estate, and therefore the administrator was not a necessary party.
As to the wife of A. J. Morris, she appears to have been properly summoned as Mrs. A. J. Morris, and she was before the court in her husband’s name, and no objection to this was made in the court below; but the answer is filed for*all the defendants, denying the plaintiff’s equity, and this Court will not now permit the husband, who was not summoned in the case, to come in here, after a fair hearing, without objection, on the merits, and say that it was his, and not his wife’s answer that was filed. Courts of equity will not permit themselves to be trifled with in this way. According to the rule laid down by this Court in the case of Rader v. Neal, 13 W. Va. 373, the husband was not a necessary party.
It does not affirmatively appear that Isaac Litman was a necessary party, as there is nothing in the case to show that .he has any interest in the subject matter of the litigation, and unless the error affirmatively appear the decree will not be reversed.
The next four assignments of error relate to the merits. The proof on the part of the plaintiff clearly establishes the following to be the facts: That in January, 1866, the plaintiff and Oliver Berry, deceased, were married; that shortly prior to their marriage he had bargained for the property in controversy, but had not paid for the same, or obtained the deed therefor; that after the marriage, plaintiff’s father, as
To contradict this state of affairs, the defendants show that Oliver Berry received about one thousand dollars from his father’s estate prior to his marriage with plaintiff; that he was a frugal and industrious man, and should have been, and was generally considered, worth a large sum of money, to wit, something like six thousand dollars, at the time of his death; and that he and his wife lived unhappily together, she being overbearing to him, and treating him cruelly.
Defendants’ evidence is founded on mere matter of hearsay and supposition, and it seems to me that it clearly appears from this case, taken as a whole, that what little estate Oliver Berry had at the time of his marriage was expended in payments of debts, or used in the support of his family; that the fortune that he was supposed to have was really the money, and the increase thereof, received by his wife from her father’s estate; and that, outside of her means thus received, he never was worth anything on his own account. All this he had a right, even prior to the Code of 1868, .to recognize and treat as her property, when the same was not used in any manner to defeat the rights of his creditors. The decisions referred to by defendants’ counsel in his exhaustive brief, were in cases where the rights of creditors were involved. A very different rule prevails where there is no
A long period of time had elapsed from the-making of the ■deed until this suit was instituted, to wit, upwards of twenty fiye years — -sufficient, ordinarily, to bar a proceeding of this kind. But during all this time the plaintiff and husband oc•cupied the property as their common home; he, as far as the ■evidence discloses, always admitting, in her presence, her •ownership. While, under a fiction- of law, her possession was his, yet hehad no adverse hoi ding, to her,; and equity has little regard for mere fictions of law, .but always looks at the facts and circumstances as they really exist. Even ac•cording to the evidence of defendants’ witnesses, .“She was lord of all she surveyed.” “There was none her. right to dispute,” in so far as the'property,in controversy was concerned. Even if he did sometimes assert an ownership in the
The Counsel insist that the administration account should have been settled, to ascertain whether he had not repaid her for the investments in tire property. There is nothing' of this kind alleged in the pleadings, and there is no evidence that she ever received one dollar of his estate. .On the contrary the evidence tends to show that he was supported and cared for by her out of her separate property— the only source of income for many years prior to his death.
The legal evidence in' this case vastly preponderates in. favor of plaintiff, and establishes beyond dispute her moral and equitable right to the property in controversy; and therefore the Circuit Court committed no error in compelling a conveyance of the legal title to her by the defendants, and, on their failure, by a commissioner appointed for the purpose.
As to the question of costs, if no defense had been made, or no resistance of the plaintiff’s rights undertaken, there might have been some justice in the claim that the defendants should not pay costs. But when parties make a rigid defense, and compel the expenditure of time, money, and the examination of witnesses, to secure their defeat, they ought not to expect to escape the payment of unnecessary costs occasioned by their own conduct. The decree is affirmed.