143 S.E. 301 | W. Va. | 1928
Blankenship sold a lot to Mongini with covenants of special warranty and "the right to convey". Part of the consideration for the lot was paid in cash and a vendor's lien reserved for the balance. The vendee failed to pay the balance and this suit was brought to subject the lot to sale under the vendor's lien. In Mongini's answer to the original bill he admitted the purchase of the lot but alleged that Blankenship had no title to and no right to convey it, and that the title thereto was in the heirs of Ida S. Bolen, deceased, and prayed that his deed be cancelled and his payment on the purchase price refunded. Blankenship filed what he terms an amended bill, alleging that he purchased the lot at a judicial sale in the suit ofFarley v. Bolen, et als.; that he obtained an absolute title to the lot by virtue of his deed from the commissioner in that suit; and that at the time he conveyed it to the defendant he had a perfect title to it. Mongini answered the amended bill and alleged that Blankenship did not acquire title to the lot by reason of his purchase in the Farley-Bolen suit. Blankenship then filed a second amended bill in which he detailed at length the proceedings in the Farley-Bolen case, and filed *532 copies of certain papers and decrees in that suit. Mongini countered with another answer in which he again avers that Blankenship did not have any legal or equitable title to the lot by reason of the proceedings in the Farley-Bolen suit. The defendant further alleged that he had never been allowed to take possession of the property nor receive any rents or profits from it, but did not state who had withheld the lot from him.
Defendant contends that each of his answers claiming affirmative relief against the plaintiff were based in part upon new matter; that plaintiff filed only a general replication to the first answer; that no replications were filed to the other answers; that no issue was raised upon the allegations in his second and third answers; and that by reason of section 36, chapter 125, Code, proof was not required, and his allegations must be taken as true. Section 36 provides "every material allegation of new matter in the answer constituting a claim for affirmative relief, not controverted by a special reply in writing, shall for the purposes of the suit, be taken as true, and no proof thereof be required." Where such an answer is verified section 38 of the same chapter requires the plaintiff to verify his special reply thereto. The material allegation calling for relief is the same in each one of the answers, to-wit, that the plaintiff had no title. Each answer was verified. Plaintiff's first amended bill was supported by an affidavit, and may, therefore, be treated as the special reply in writing controverting defendant's claim for affirmative relief required by the statute. Hale v. Hale,
The sale to Blankenship having been made under a decree of a court, and the sale confirmed, Mongini admits that Blankenship's title is protected under section 8, chapter 132, Code, against any errors which are not jurisdictional. SeeChapman *533
v. Branch,
(1) He charges that the bill in the Farley-Bolen suit does not allege that the estate of Ida S. Bolen, (which owned the land in question), was indebted to Farley; that the exhibit filed with the bill shows that the claim of Farley was personal against J. B. Bolen; and that the decree entered in the case is against Bolen personally. The bill alleges that Farley acquired a judgment against the Administrator of Ida S. Bolen, deceased, on August 4, 1921, and files with the bill a certified copy of that judgment, which is the exhibit to which defendant refers. The copy of the judgment shows that a recovery was had by Farley against J. B. Bolen "as Administrator of the estate of Ida S. Bolen, deceased". It further alleges that the judgment thus acquired is "a lien upon the real estate of the said Ida S. Bolen, deceased." The bill also alleges that the lot is all of the property of which Ida S. Bolen died seized and possessed, and prays that the lot be sold for the purpose of paying Farley's judgment. The decree adjudges that the judgment of August 4, 1921, is a valid and subsisting lien against the lot; it orders a recovery against Bolen as administrator of, etc., and directs that the lot be sold to satisfy the judgment. We are therefore of opinion that the bill sufficiently alleges a debt against the estate of Ida S. Bolen, deceased, and that the pronouncement of the decree is against that estate. The mere fact that in some of the proceedings reference is had to "J. B. Bolen, Administrator of", etc., instead of "J. B. Bolen, as Administrator of", etc., does not support defendant's contention.
(2) Defendant also says that if it be held that Farley was seeking in effect to collect a claim against the estate of Ida S. Bolen, nevertheless there was no sale of the curtesy consummate of J. B. Bolen, her husband, nor any attempt to dispose of such curtesy.
Bolen was made a party to the suit in his personal right as well as administrator. It then became his duty to protect his personal interest in the lot. A sale of the lot was ordered to pay the lien against it. He made no protest whatsoever against the decree. He is therefore bound by it.
(3) The decree of sale recites that an answer was filed on *534 behalf of four infants, naming them. The summons and the bill show that there were five infants. Defendant contends that Blankenship did not acquire the title of Elizabeth I. Bolen, the infant whose name is omitted from the decree.
The answer of the guardian ad litem which is filed with the proceedings specifically includes Elizabeth, and her name is signed to the answer by him. The failure in the decree to name Elizabeth is simply a typographical omission, and is correctible by the record. Chapman v. Branch, supra.
(4) Defendant further says that while the bill in that suit alleges that Ida S. Bolen owned no personal property at the time of her death, no proof was taken in support of that charge and the court was therefore without jurisdiction to sell the real estate, citing Schilb v. Moon,
The lot was sold by the commissioner on September 5, 1923, bringing $1,225.00, and the sale was confirmed the following day. Mongini purchased the lot on December 29, 1923, at the price of $3,081.10. His final contention is that the difference in the price at the two sales (so close in point of time) shows that the price realized at the commissioner's sale was grossly inadequate, and therefore the sale to Blankenship may be set aside upon suit by the infant heirs, citing Bank v. Jarvis,
The defendant has failed to show that the plaintiff's title is defeasible. The decree of the lower court is accordingly reversed.
*536Reversed and remanded.