6 W. Va. 377 | W. Va. | 1873
In April 1860, the Plaintiffs filed their bill against the Defendants for the partition of slaves of which they were the joint owners; the Court finding from the report of a commissioner that partition of the slaves in kind could not be made among the claimants, directed a sale, and appointed a commissioner to make the same. In pursuance of this order he sold the slaves, eleven in number, on the 7th day .of January 1861, to different purchasers, taking from them single bills, with sufficient sureties, payable in one, two and three years after date, pursuant to the provisions of the decree. No report of this sale was made or filed in Court until September 1865, aud no action was taken thereon until the May t.erm 1866, more than five years after the sale was made. At this last term a decree was entered confirming the sale, and appointing another commissioner in the place of the former, who had removed from this State, and directing him to withdraw the bonds of the several purchasers, and collect the amounts, and after paying certain costs therein specified, to pay the residue of the money into Court to abide its further order. In this condition of the cause, at the September term of the Court 1867, four of the purchasers at said sale, Gideon D. Camden, Samuel M. Sommers, "William L. Corley and Sarah E. Adams obtained leave of the Court to file their joint partition for a re-hearing of said cause, and said peti
The petition admits the sale, and that they severally became purchasers at the same, and executed their bonds ■with personal sureties, as stated in the report and decree aforesaid. But the petitioners allege that the papers in said cause, as well as the report of sale, made by the commissioner aforesaid, were not in the clerk’s office of the said Court, or within the reach of your petitioners, from the time of said sale until the September term 1865 of said Court, and that therefore they could not know what proceedings were had or were proposed to be had in said cause. The petition then proceeds to set forth sundry matters why the said sale should not be confirmed ; that the title to the same was not vested in said petitioners previous to the confirmation; and that when the sales were confirmed, all right and property in the same'had been destroyed by acts of the General Government, and of the State of West "Virginia.
I believe all the parties to the original suit were made parties to this petition; two of them, to-wit, John A. Boner and Caroline Boner file their separate answers to said petition, alleging among other things, that petitioners took and kept possession of said slaves frota the time of their purchase, and that they either sold or had the use and benefit of the slaves from that time, and that said slaves have never been from the time of said sale in the possession of their former owners, who never exercised subsequently any ownership over them. These answers are accompanied with affidavits of their truth. No replications were filed to the same, or any proofs taken. At the November term of the Court 1869, the case was heard on the petition, the answers thereto and the record of former proceedings; and the petition was dismissed by the Court; and from this order of dismission an appeal is taken to this Court.
Are these parties appellant, these petitioners, properly in Court, seems to be the first question arising upon the
Under these circumstances, this long delay on the part of the Plaintiffs in maturing the cause, and the facts alleged in the petition by way of excuse on the part of the petitioners for their not sooner appearing, and which facts would be known to the Court, we think it was error to have confirmed the sale without notice to the purchasers. No authority has been cited to us on this point, but we think this course but j ust and reasonable under the circumstances, and that these parties should now be let in to make such defence, as may seem lawful and proper.
In the case of Erwin vs. Vint 6 Munf. 267, it was held, that a final decree by default may be set aside at a subsequent term, for good cause shewn, in cases where relief cannot be given by bill of review, or bill to impeach the decree for fraud in obtaining it. In that case an original bill ivas filed to set aside the decree, alleging that at one time the party was prevented by mistake as to the day of the session of court, and at another by a serious accident lo his person, from attending the Court, and filing his answer, and making defence. This bill and accompanying affidavits were used however in support of a motion made in the original cause for setting