Burlew v. Quarrier, 16 W. Va. 108

16 W. Va. 108 | W. Va. | 1880

Haymond, Judge,

delivered the opinion of the Court:

The appellant has assigned in his said petition the following as errors in the said decree, to-wit-: .

“1st. That said court refused to allow the petition of A. Burlew, trustee, and the petition of Charity Vance to be filed in the cause, by which petitions the court was invoked to allow the complainant to amend his bill by transposing the name of Charity Vance from that of defendant to that of complainant on the record, and refused to allow said bill tobe amended. 2d. That the court refused to allow the complainant to amend his bill by transposing the name of P. W. Morgan, administrator, from that of defendant to that of plaintiff on the record. 3d. That the court overruled the motion of the plaintiff to remove said cause to the circuit court of the United States, to be held in the district where said suit was pending. 4th. That the court erred in hearing said cause upon its merits and in dismissing the complainant’s bills, for by .operation of law said cause had been removed from said court to the said circuit court of the United States. 5th. That the court ^id Dot Pass uPon or dispose of the exceptions of the complainant to the filing of the joint answer of Joel and Fanny C. Quarrier. 6th. That it was error to file the answers of the defendants, Joel S. and Fanny C. Quar-rier and John H. and Paulina S. Thompson, in their present form, as well as for not being verified according to law. 7th. That it was error to dismiss the complainant’s bills. 8th. That the court committed other errors in its decrees and proceedings in said cause, apparent on the face of the record.”

For the sake of brevity I will consider the first and second errors assigned by the appellant together, as well also as the error assigned by the appellant in his brief, to-wit: That the court refused to transpose the names of the defendants, Charity Vance and P. W. Morgan, administrator of A. B. Hutton, from the position of defendants to that of plaintiffs on the record, as requested by the plaintiff, in order that the cause might be removed to the district court of the United States for the district of West Virginia, at Charleston.

In the first place it must be observed, that it does not appear by the record of the proceedings of the court, that Charity Vance asked, petitioned or prayed the court in any form that her name be transposed from that of a defendant to a plaintiff in the cause. It appears by the record of the proceedings of the court, that the plaintiff tendered his petition for the purpose of amending his bill, to the filing of which the defendants objected. By reference to the petition of plaintiff it appears, that by it he prayed for permission to amend his bill by transposing the name of Charity Vance from that of defendant to that of plaintiff on the record. The record, however, as entered by the. court, shows that the defendants^ of whom Charity Vance was one, objected to said petition. Regarding the record as a verity, it must therefore be taken and considered by us that Charity Vance ? with the other defendants, objected to the granting of the prayer of the said petition. It is true, that in the record as before us there is a paper-writing purporting to be the petition of Charity Vance, in which she prays that she may be treated as one of the plaintiffs in the cause, but no record of its having been tendered to the court appears in the cause. In the absence of such record it would be improper in this court, I apprehend, to regard such petition as a part of the record, and as having been presented to and acted on by the court. Sims v. Bank of Charleston, 8 W. Va., 274. If the plaintiff had the right to maintain this suit to remove a cloud from the title to the land in the case stated in his bills, then it seems to me, that, so far as he or his eestui que trust is concerned, it was not essential to the doing of full justice in the cause to the plaintiff’s pretensions or claims, that Charity Vance should be a plaintiff in the cause against her consent and objection thereto.. It seems to be adjudicated, that a trustee may apply to a court of equity to remove impediments to a fair execution of his trust, and to remove a cloud hanging over the title to the property conveyed to him in trust to secure the payment of a debt or debts. Rossett v. Fisher et al., 11 Gratt., 492; Macher v. Sehon, sheriff, et al., 14 W. Va., 783; Ambler, trustee, v. Leach et al., 15 W.Va., 677; Johnson et al. v. Johnson, 30 Ill., 215.

I do not mean to be understood as affirming, that a trustee may in every case apply to a court of equity to remove every cloud of title upon the property conveyed to him in trust to secure the payment of debts, but I presume it is safe to say, that generally the trustee may do so in cases where his grantor might do so. In the case of Vance v. Evans et al., 11 W. Va., 342, it was held by this Court: “1. A decree between co-defendants can only be based upon the pleadings and proofs between the complainant and defendant. 2. Where a case is made out between defendants by evidence arising by the pleadings and proofs between the complainant and defendants, a court of equity should render a decree between the co-defendants.”' It is true, that in this case the plaintiff has wholly ignored and failed to take any otice of, or make any averment in relation' to, the de-cisión of this court rendered in the case of the Goshorns v. Friend’s adm’r et al., upon the validity of the tax-deed from Qnarrier, clerk, to Cox. But according to the record the defendants, not a part of them, but the defendants, plead the adjudication of this court in the case of the Goshorns v. Friend’s adm’r et al., as to the validity of the-tax deed from Quarrier, clerk, to Cox, who conveyed to Thomas R. Friend in his lifetime the land in controversy in bar to plaintiff’s bill. The plaintiff, when this plea was tendered, moved the court to reject the same; but the court overruled the motion and admitted the plea to be filed. But it appears by the final decree rendered in the cause on the 15th day of June, 1874, that the plaintiff tendered a demurrer in writing to the special plea theretofore filed by the defendants, which was ordered to be filed, and by consent of parties the demurrer was set down for argument, and the same being argued and considered was sustained by the court. Thus it appears by the record, according to my reading of it, that on demurrer the court held the plea to be bad as a bar to the plaintiff’s bill and amended bill. If therefore the court did err in admitting the plea to be filed, the plaintiff is not prejudiced thereby, as the court on demurrer held the plea bad. It is the constant practice of courts of equity to allow amendments of bills by the introduction of new plaintiffs, when the purposes of justice require it. Coffman v. Langston et al., 21 Gratt, 263, 269, and cases there cited.

In Vaiden et al. v. Stubblefield’s ex’r, 28 Gratt. 153, it was held, that “in this country the rule is well settled, that in cases of misjoinder of parties as plaintiffs in equity, the objection must be made by demurrer, if the defect is apparent on the face of the bill, or by plea or answer, if the defect does not so appear; and unless so made, the objection will not avail at the hearing, if a decree can be rendered without prejudice to the rights of the parties.” See also Id. 157 and 158, and cases there cited.

In Belton v. Apperson et al., 26 Gratt. 207, it was held, that “the rule in equity in regard to amendments is, that they may be made, when the bill is defective in its prayer for relief or in the omission or mistake of some fact or circumstance connected with the substance of the case but not forming the substance itself. The plaintiff will not be permitted to abandon the entire case made by his bill and make a new and-different case by way of amendment. But this rule has been much trenched upon, especially in the States and in "Virginia.” See also same case, 215, 216, 217 and 218. Piercy, ex’r, &c., v. Beckett et al., 15 W. Va. 444.

In Armentrout’s ex’rs v. Gibbons, 25 Gratt. 371, Judge Bouldin, in delivering the opinion of the court, says, at page 375: “No principle of equity is more familiar or better settled than this : that all persons materially interested in the subject of controversy ought to be made parties in equity, and if they are not, the defect may be taken advantage of either by demurrer or by the court at the hearing. Clark v. Long, 4 Rand. 451. It is not necessary (although certainly more regular) that the want of parties should be made either by plea, answer or demurrer. On the contrary, if it appear on the face of the record that proper parties are wanting, the decree will be reversed, unless the objection was expressly relinquished in the court below,” &c. It is also the practice in equity to allow amendments of bills by transposing parties from plaintiff to defendant, and nice versa, if it is necessary to do complete justice between the parties in the cause. But this will not be allowed at the mere' caprice of parties. See on this subject, vol. 1, 3d Am. ed. of Daniels Chy. Pr. 404, 405, 408, 409. “Great latitude always has been allowed to a plaintiff in making amendments; and the court has even gone to the extent of permitting a bill to be converted into an information.” Vol. 1 Daniel’s Chy. Pr. 3d Am. ed. 408. See a^S0J uPon the subject of amendments, Story’s Eq. PI. §§ 884,_885, 886, 887, 888, 889, 890.

Charity Vance in her answer makes no complaint of, nor in any way impeaches, the decree of this Court rendered in the case of Goshorns v. Friend’s adm’r et al., to which she was a party, as ascertained and determined by this Court, in which case this Court clearly held and decided, that the said tax-deed from Quarrier, clerk, to Cox was valid, although she must have known, when she filed her answer, that that decision was relied on by some of the parties to the cause as final as to her, whatever might be its effect as to the plaintiff and his cestui que trust. If this Court decided anything in the case to which I have referred, it decided, that said tax-deed was valid. “A fact, which has been directly tried and decided by a court of competent jurisdiction, cannot be contested again between the same parties in the same or any other court. Itis res adjudicata. It is not necessary that precisely the same parties were plaintiffs and defendants in the two suits; provided the same subject in controversy between two or more of the parties plaintiffs and defendants to the two suits respectively, has been in the former suit directly in issue and decided.” The Western M. & M. Co. et al. v. The Virginia Channel Coal Co. et al., 10 W. Va. 250. But see further on this subject Freeman on Judgments §§174, 175 and authorities there cited in notes.

In Hollingsworth & Co. v. Brooks, 7 W. Va. 559, Judge Pauli in delivering the opinion of the Court at page 566 said : “We observe in the third place, that said decision” (speaking of a decision of this Court) “is in no way subject to review in any further decision to be made in the cause, but is permanent and irreversible, settling the rights of parties upon all questions properly coming within its purview or effect, and all legimate consequences flowing therefrom.”

In the case of Newman v. Molohan, 10 W. Va. 488, the syllabus is : “A joint judgment in a suit in which an attachment had issued against all the defendants as nonresidents, having been rendered against several of the defendants, one of them, who had pleaded, took an appeal, and the Court of Appeals affirmed the judgment. Another of the defendants, against whom this joint judgment was rendered, a non-resident who had not pleaded after due notice, then moved the circuit court who had rendered the judgment to reverse and annul the same, because the order of publication against him had not been made in the manner required by law, and because there had been' a personal judgment against him, though he had never been served with process, and for other errors apparent on the face of the record, held : That the circuit court properly overruled his motion,as after the affirmance of the judgment by the Court of Appeals no defendant could make a motion in the circuit court to reverse or modify the judgment, though the record of the case in the Court of Appeals fails to show that the defendant making the motion was notified of the appeal, it being conclusively presumed he was so notified, and all the questions raised by his motion had been considered and decided by the Court of Appeals when it affirmed the joint judgment.” See also the opinion of the Court in that case and the authorities there cited. See also Hall & Smith v. Bank of Virginia, and Renick v. Ludington et al, 15 W. Va. 323, and cases there cited in the opinion of the Court, and Henry et al. v. Davis, 13 W. Va. 230. By appearance to the action in .any case, for any other purpose than to take advantage of the defective execution or the non-execution of process, a defendant places himself precisely in the situation in which he would be, if process were executed upon him, and he thereby waives all objection to the defective execution or the non-execution of process upon him. Bank of the Valley v. Bank of Berkeley, 3 W. Va. 386, and Mahany v. Kephart and the B. & O. R. R. Co. 15 W. Va. 609.

From what appears in this case, or is alleged or pretended in the pleadings, it seems to me from the authorities cited above, and especially from the cases decided by Court, that there can be no question that Charity ^7"31106 bound by the decision of this Court in the case Goshorns v. Friend’s adm’r et al., before referred to, and that said tax-deed of Quarrier must be taken and held by us as valid astosaid Charity Vance, the validity of the tax-deed as to her being res adjudicate/., whatever may be properly held as to the effect of that decision as to the plaintiff or his cestui que trust. But of this more will be said hereafter and herein.

Under the views I have before expressed, the allegations and facts appearing and authorities cited, I am unable to see, that the court would have erred in refusing to permit Charity Vance to be made a plaintiff in the cause, if it had.refused so to do on the petition of plaintiff, or even if it appeared by the record that Charity Vance had moved or petitioned the court to be made plaintiff instead of defendant at the time plaintiff filed his said petition. But it does not distinctly appear that the court ever did so decide, unless it is to be so inferred from the fact that the court rendered its final decree in the cause without allowing the prayer of plaintiffs’ said petition in that regard. Whether such an inference may be properly drawn, I deem it unnecessary to decide, as under the views I have expressed it is immaterial. For some of the reasons above stated and authorities cited upon the subject of transposing parties from defendants to plaintiffs I feel unable to decide that the court erred in refusing to transpose P. W, Morgan, administrator, from defendant to a plaintiff in the cause. I think such transposition was not necessary to the doing of complete justice in the cause, so far, to say the least of it, as the plaintiff or said Morgan, as administrator of the cestui que trust, is concerned. While a court of equity will generally allow the amendments of the bill, by the transposition of a party from the position of defendant to plaintiff, when it appears to be necessary to the doing of complete justice between the parties in the cause, still I apprehend that such court will not direct such amend-ment by transposition simply for the purpose of enabling the party transposed to remove the cause into ánother and foreign jurisdiction. But P. W. Morgan, administrator, &c., does not appear to be a non-resident of this State, and his transposition from the position of defendant to that of plaintiff would not have entitled him to remove the cause to the Circuit Court of the United States, and he was and is the chief beneficiary, as the representative of his intestate, to the deed of trust in the bills mentioned. Nor am I prepared to say, that, if the name of Charity Vance had been transposed to the position of plaintiff in the cause, she would have been entitled under the laws of the United States to have had the cause removed to the Circuit Court of the United States. See § 639 of ch. 7, p. 113 of the Revised Statutes of the United States. See also the case of Beery v. Irick, 22 Gratt. 484, and the same case in 12 American Reports 539. See also note in the American Reports to said case at page 545, and 18 Wallace 553.

In the said case of Beery et al. v. Irick et al., 22 Gratt. 484, it was held: “1. A suit in a State court cannot be removed to a United States Court unless the suit might have been brought originally in the last named Court. 2. There are several plaintiffs in a suit in a State court, some of whom live out of the State, and others live in it, and the interests of all are so connected that the rights and interests of one cannot be adjudicated separately ; the defendants live in the State. The non-resident plaintiffs are not entitled to have the cause removed to a United States Court under the act of Congress of March 2, 1867, for the removal of causes.” After the decree appealed from in this cause was made, Congress/ passed another act touching the removal of causes from State courtsto United States Circuit Courts. See Acts of Congress, 1874-5, chapter 137, pages 470, 471, 472 and 473. But I simply mention this fact without comment, as this act is immaterial in this case as it stands before us.

As ta the appellants’ third assignment of error : As we have seen, it appears that this cause was removed from the circuit court of Kanawha county, on the application of Charity Vance, to the District Court of the United States, and that the last named court afterwards, on the 8th day of May, 1874, remanded the cause to the said circuit court of Kanawha county for further proceedings to be had therein. Notwithstanding this fact the defendant, Charity Vance, moved the court to again remove the cause from said circuit court to the said Distinct Court of the United States, under the act of Congress for the removal of causes from the State to the United States Courts; and, the decree says, she filed in support thereof her petition and affidavit and bond with good and sufficient security, which motion was resisted by the other defendants and was overruled, for the following reason : “It appearing to the court, that this cause was at a former term ordered to be removed to said United States District Court on the motion of the said Charity Vance, and has been remanded to this court by the said District Court for want of jurisdiction.” It must be remarked here, that no petition or affidavit of defendant, Charity Vance, for the removal of the cause as aforesaid appears in the record. But there does appear in the record a petition of Charity Vance, “plaintiff,” and an affidavit of Charity Vance, “plaintiff,” for the removal of a cause pending in the circuit court of Kanawha county, wherein she alleges she is a plaintiff and Joel S. Quarrier and others are defendants, and asks that' said cause be removed to the Circuit Court of the United States in and for the fourth judicial circuit, to be held in the district where said suit is pending, for certain reasons in said petition and affidavit mentioned. These we cannot infer are the petition and affidavit referred to in the said decree of the circuit court of Kanawha county aforesaid for manifest reasons. No other petition or affidavit of Charity Vance appears in the record; and this petition and affidavit does not apply to the case. The application for removal, having been made by defendant Charity Vance to the District Court of the United States for the district of West Virginia, to which court the cause had before been removed on her motion, and that court having remanded the cause to the circuit court of Kanawha county for further proceedings, upon the ground manifestly that the cause had been removed improperly on motion of the defendant, Charity Vance, I see no error in the circuit court of the county of Kanawha in refusing to again remove the cause to said District Court on the motion of said Charity Vance.

I am not aware of any United States statute that expressly authorizes the removal of a cause from a State court to a District Court of the United States. The acts of Congress do provide, that under certain circumstances a cause may be removed from a state court to the Circuit Court of the United States for the district where such suit is pending. Whether the acts of Congress includes District Courts of the United States, it is unnecessary now to decide under the view I take of this case, but at present it strikes me that it does not. It seems to me, for the reasons aforesaid, that said third assignment of error is not well taken by appellants.

As to the appellants’fourth assignment of error: For reasons above stated, I do not think the court erred in Hearing the cause for the reasons stated in this assignment of error. This assignment, of error is not supported by the record, but is in fact contradicted by it. Whether the court erred in dismissing the plaintiffs bill on the heading of the cause, will hereafter be considered.

As to the appellants’ fifth assignment of error: It appears by the order of the court made in the cause on the 27th day of July, 1872, that the court did expressly pass upon and overrule the exceptions of plaintiff, filed to the answer of Joel S. Quarrier and Fannie C. Quarrier, his wife. This assignment of error is therefore not well taken. Whether the court erred in overruling the said exceptions will be considered in considering the appellant's sixth assignment of error.

-4s to the appellants’ sixth assignment of error: On consideration it seems to me that the court did not err in overruling the plaintiffs’exceptions filed to the answer of defendants, Joel S. Quarrier and Fannie C., his wife, for the reason that, although the adjudication by this court in the case of Ooshorns v. Friend’s adm’r et al., may not be final as to plaintiff. and his cestui que trust, who were not parties to that ease, still it is proper to be set up in this case, as showing that the heirs of Friend are entitled to the equity of redemption in the undivided moiety of the land conveyed by Charity Vance to the plaintiff in trust, if the debt in said deed of trust is a valid one and unsatisfied in whole or part, and if plaintiff in fact acquired the legal title to a moiety of said land by virtue of the trust-deed of Charity Vance in the bills mentioned. Perhaps said exceptions should have been overruled for other reasons; but this I do not decide, because I deem it unnecessary so to do. No exception or objection was taken or filed in the court below, so far as the record shows, to the said answer of ■Quarrier and wife, or to the filing thereof, because it was not verified by affidavit; and it is too late to make that objection in this court. No exception appears to have been taken to the form of said answer in the court below. No exception appears to have been made or taken to said answer, except those which are filed and made a part of the record, which have been hereinbefore stated. No exceptions were filed to said answer for insufficiency in any respect, save as stated in said written exceptions.

I should have said as to plaintiff’s fifth exception to said answer, that it cannot now be determined whether the exhibits mentioned in said answer were filed therewith at the time or not, the court below could see that fact; and the exhibits, as agreed upon by the counsel in the cause, do now appear in the record, and must have been before the court below at the hearing. Whether it is necessary in all .cases to file exhibits with the bill or answer at the time of filing such bill or answer, I do now decide, because unnecessary in this case. I will say however-, that I doubt very much whether that is essential in every case, or whether the failure to file an exhibit with an answer is good ground for an exception to such answer in all cases. These are matters within the sound discretion of the court, to be exercised according to the rules of equity under the circumstances appearing to the court. The better and safest practice is to file exhibits with the bill or answer as the case may be. As we have seen, no record of the court appears showing the filing of exceptions to the answer of Thompson and wife, or that any exceptions to the answer were ever brought to the attention of the court, or passed on by the court. It is too late,to take advantage of the failure to make oath to said answer in this Court, that objection not having been made in the court below. It seems however, that the plaintiff filed what is termed a special replication to this answer, which was objected to, and the court sustained the objection. This replication I have hereinbe-fore set out, and deem it unnecessary to restate it. It seems to me however, that the matters stated in said replication were insufficient in this case as a replication, and that the court did not err in sustaining the objection made to the filing thereof.

As to the appellants’ seventh and eighth assignments of error: These assignments of error are each very indefinite, especially the eighth. But the seventh assignment brings up the whole case on its merits, as it was before the circuit court. As we have seen, a trustee in a deed of trust may file a bill to remove a cloud upon the title conveyed to him in trust for the purposes of the trust. To this however I presume there are some exceptions, which it is unnecessary here to define or determine. But I apprehend that a trustee may under circumstances file a bill in a case like this, to declare a tax-deed null or inoperative as to the trust-debt and deed, where the tax-deed was made under the provisions oí the thirty-se ven t h chapter oí the Code of Virginia of 1849. If the grantor in the deed of trust to the trustee could have filed' such a bill before or at the time of the execution of the trust-deed, it seems to me that the trustee in such deed may tvell do so after the execution thereof, and after the right of the trustee under the provisions of the deed of trust to sell the realty conveyed has become complete. And it may be that a trustee may be entitled to file such a bill in some cases where his grantor could not properly do so.

. In the case of Yancey v. Hopkins, 1 Munf. 419, Judge Tucker, at page 427, says : “ It was objected by the appellant’s counsel, that the complainant had a plain remedy at law by an ejectment to recover the premises. But'I am of opinion, that he had a right to come into a court of equity for the purpose of setting aside a deed? which might have obstructed his recovery in an ejectment. And it was more beneficial to the defendants, that he should do so, as they might by their answer purge themselves of any imputation of fraud or collusion in making the sale. Besides, the object of the bill was to compel a reconveyance of the land from the defendant, Faris, which a court of law could not enforce.”

This was a bill filed by the owner of the land to set aside a tax-deed; and I understand Judge Tucker to lay down as a distinct reason why a court of equity had jurisdiction in the case, that plaintiff had a right to come into a court of equity, for the purpose of setting aside a deed, which might have obstructed his recovery in ejectment. It is true that he states other reasons, the absence of which I do not understand would destroy the first.

Judge Cooley in his work on Taxation 1st addition, page 543 says : “When however, the illegality or fatal defect does not appear on the face of the record, but must be shown by evidence aliunde, so that the reeord would make out a prima facie right in one who should become purchaser, and the evidence to rebut this case may probably be lost, or be unavailable from death witnessess or other cause, or when the deed given on a sale of the lands for the tax would by statute be presumptive evidence of a good title in the purchaser, so that the purchaser might rely upon that for a recovery of the land until the illegalities were shown, the courts of equity regard the case as coming within their ordinary jurisdiction, and have extended relief, on the ground that a cloud on the title existed or was imminent. The cases on this point are numerous, and in considerable variety, as would be anticipated in view of the different tax-systems under which they have been made.” See also authorities cited by same author on said page 543. Burroughs on Taxation page 367, also Blackwell on Taxation, 4th edition, pages 553, 577, and cases there cited; Scott v. Onderdonk et al., 14 N. Y. 9; Hatch v. City of Buffalo, 38 N. Y. 276; Fonda v. Sage et al., 48 N. Y. 173; Camden v. Davis, decided by this Court but never reported. The case of Ferguson v. Donnally, 7 W. Va. 114, was a case of partition under our statute in relation to partition.

To authorize the trustee to maintain a bill of the character of that filed in this cause, it seems to me that the trustee ought to allege in his bill substantially, that the debt in the deed of trust mentioned is unpaid in whole or in part, and that the trustee should in this case also allege and show by proper averments and statements of title, that the title or the right thereto is in him for the purposes of the trust, and if these facts are denied, he should do something more in regard to title than to content himself with his allegations in respect thereto. In this case the plaintiff in his amended bill, after stating the links in his title back to Thomas L. Hutton, says ; “All of which deeds of conveyance are of record in Kanawha county, attested copies of which will be furnished on the trial of this cause, which your orator prays may he read and considered as a. part of this amended bill.” None of thedeeds of conveyance in said amended bill mentioned and set up as showing title in the plaintiff appear in the cause, as it is before us. The only express allegation in the original and amended bills of plaintiff in relation to said deed of trust being paid or not is the allegation of the plaintiff, that the same was never paid to him. This, it seems to me, in and of itself is generally insufficient in such cases, as while it may not have bee * paid to him, it might have been paid to the cestui que trust, who is generally the proper person to receive the debt. But it seems to me, that taking the original and amended bills together it does sufficiently appear, that the plaintiff claims therein that-said debt has not been paid. It is argued by counsel for appellants, that the allegation of the plaintiff in his amended bill as to his title derived from Thomas L. Hutton, in whose name the whole tract of land was sold for taxes, as we have seen, were special, distinct and specific, and that those allegations are uncon-troverted by answer and should have been taken as true at the hearing. The 116th section of chapter 125 of the Code of this State of 1868 provides, that “every material allegation of the bill not controverted by an answer, and every material allegation of new matter in the answer constituting a claim for affirmative relief, not controverted by a reply, shall for the purposes of the suit, be taken as true, and no proof thereof shall be required.”

There is no special denial in the answer of the plaintiff’s allegations in his amended bill as to the title as therein alleged. But the defendants, Joel S. Quarrier and his wife, in their answer, as may be seen by reference thereto, use this language : “They deny all the material allegations contained in the plaintiff’s bill, and call for strict proof of the same.” While this denial is general, and not sufficient to constitute good pleading in chancery proceedings, if excepted to properly in the court below, still in the absence of such exceptions in the court below it seems to me, that the part of the answer which I have quoted should be considered by the appellate court as controverting the allegations o± the plaintiff as to the title, as well as other material allegations of the bill. Webster in his dictionary among other things says, that controvert means, “to contest; to debate; to deny.” It appears to me that the effect of this general denial, as stated in the answer, in the absence of proper exceptions to the answer, upon general replication should be considered as controverting the material allegations of the bills. The effect given to an answer in chancery with us is now materially different from what it was prior to the Code of 1868. See § 59 of ch. 125. It'seems that the only effect given to an answer under said section is to put in issue the material allegations of the bill, which are denied by the answer. The answer, it seems, is not evidence as formerly.

The abstract of the title made by Commissioner Freer referred to in the plaintiff’s bill and amended bill is filed in the cause as an exhibit and as evidence ; and no exceptions were filed to it in the court below. We have seen what that abstract contains. It substantially sustains. the chain of title from Thomas L. Hutton to plaintiff as set out in the amended bill, and I have but little doubt, that in the absence of exceptions to said abstract as evidence, the court in deciding the cause regarded the abstract as being correct and undisputed, which perhaps it had the right to do under the circumstances. For it is elear to my mind that the court did not dismiss the plaintiff’s bills on account of the absence of the muniments of title stated in the amended bill. It is manifest, as I think, that the court dismissed the plaintiff’s bills, because it was of the opinion that the tax-deed from Quarrier, clerk, to Cox was a valid deed, and that the chief controversy made before the court was upon the validity of said tax-deed, based upon the decision of this court in the case of Goshorns v. Friend’s adm’r et al., and the supposed e^eG^ that decision upon the plaintiff and his cestui 1ue trust as well as Charity Vance.

Having determined that the decision of this Court in the case of Goshorns v. Friend’s adm’r et al., as to the validity of the said tax-deed from Quarrier, clerk, to said Cox, was final and binding on said Charity Vance, and this Court in said last named cause did decide that said tax-deed was a valid deed as to said Charity Vance, it must next be determined how far that decision is binding upon the plaintiff and his cestui que trust as to said deed of trust and the debt therein secured, and what disposition and determination this Court should now make of this cause. Neither the plaintiff nor his cestui que trust was a party to .the said caüse of Qoshorns v. Friend’s adm’r et al., and the deed of trust of Charity Vance to the plaintiff, in the bills mentioned, was executed in 1868, and Charity Vance did not become a party to the last named cause until some time after the making and due recordation hi said trust-deed, and the last named cause was not decided in this court until in February, 1872.

Mr. Story, in his Eq. PI. § 427, says: “A decree obtained without making those persons parties to the suit, in which it is had, whose .rights are affected thereby, is fraudulent and void as to those parties. And even a purchaser under it, having notice of the defect, is not protected by such decree; for otherwise the decree- of a court of equity might be used as an engine for the purpose of effecting the grossest fraud. And therefore when a decree has been made against a trustee, the ces-tui que trust .not being before the court, and the trust not discovered; or where a decree has been made against a person, who has made some conveyance or incumbrance not discovered; or when a decree has been made in favor of or against an heir, where the ancestor has in fact disposed by will of the subject-matter of the suit; the concealment of the trust, or subsequent conveyance, or in-cumbrance, or will in these several cases ought to be treated as a fraud.

From the authorities I have hereinbefore cited upon the subject of res judicata and bearing thereon, my conclusion is, that neither the plaintiff nor his cestui que trust is concluded by the decision of this court in the said case of Goshorns v. Friend’s adm’r et al., so far as said trust-debt and the lien thereof created by said deed of trust upon the said undivided moiety of said tract of land are concerned ; and that this court is not concluded by the decision in that case from enquiring into and determining the validity of said tax-deed in this case, so far as relates to the plaintiff and his cestui que trust, and said deed of trust and the debt secured thereby upon the moiety of the tract of land therein mentioned.

As we have seen, the sale of the said tract of land was made in the year 1855, and the deed recites that the sale was made for taxes due thereon for the year 1850. The sale was made under the provisions of chapter 37 of the Code' of Virginia of 1849, which in many respects is similar to the same chapter of the Code of 1860. The second section of chapter 37 of the Code of 1849 provides, that “ In the month of April, May or June of the year one thousand eight hundred and fifty, and in one of those months every five years afterwards, the first auditor shall cause to be delivered to the sheriff or collector of the taxes for each county and corporation a list of real estate therein, which since the 10th day of March, 1832, shall have been, or hereafter shall be, returned delinquent for taxes, and on which the taxes remain unpaid, with a statement of the amount due for the taxes on each tract or lot so returned, and for interest on such taxes.”

The third section provides, that “ Within twenty days after receiving such list such sheriff or collector shall make out three copies thereof, and set up one of them at the front door of the court-house, and the other two at two of the most public places in his county or corporation. To each copy he shall subjoin a notice that the real estate therein mentioned, or so much thereof as shall be sufficient to satisfy the taxes on the same with interest and commissions of five per cent to the sheriff or collector, will be sold at public auction between the hours of ten in the morning and four in the evening, on the first day of the next succeeding September or October court of his county or corporation, at the door of the court-house thereof, unless the said taxes, interest and commission shall be previously paid. Such list and notice shall, if ordered by the court of the county or corporation in which such real estate lies, be advertised for four successive weeks in some convenient newspaper; the expense of which shall be apportioned among the delinquents, according to the amount of taxes due by them respectively.”

Section four provides, that “ If the said taxes, interest and commissions, and a due proportion of said expense be not previously paid, the said sheriff or collector shall proceed to make sale accordingly; and the sale may be adjourned from day to day, and proceed between the hours aforesaid, until it shall be completed. If however the sale be not completed on the last day of the court, it shall be adjourned to the first day of the next court. It may then proceed, and be adjourned in like manner as at the previous term. Whenever there is an adjournment to the next court, notice thereof shall be given by advertisement at the door of the court-house.”

The seventh section provides, that “ the sheriff or collector, on receiving from any purchaser the amount of purchase-money, shall grant to him a receipt for the same,” and then prescribes the form of the receipt which ir is not necessary here to give.

The ninth section provides, that “ the sheriff or collector shall make out a list of the sales, with the following caption thereto : List of real estate within the county (or corporation) of-sold in the month (or months) of -, eighteen hundred and-, for the non-payment of taxes thereon for the year -. Underneath shall be the several columns mentioned in the seventh section with a like caption to each column. And there shall be an additional column showing the date of each sale, unless the sales were all made on one day, in which case the day may be mentioned in the caption.”

The tenth section provides that “ subjoined to the said list, shall be the following oath : I, A. B., sheriff (or collector or deputy) for C. D., sheriff (or collector) of the oounty of-, do swear that the above list contains a true acoount of all the real estate within my county, which has been sold by me during thepresent year for the non-payment of taxes thereon for the year-and that 1 am not directly or indirectly interested in the purchase of any of the said real estate. So help me God. Which oath shall be taken and subscribed before a justice.”

Section eleven provides, that “ the said list, with a certificate of the said oath attached thereto, shall be returned to the court of the county or corporation, whose officer may have made the sales, at the first or second term next after the completion of the said sales. If the court see no cause to doubt the correctness of the list, it shall order a copy thereof to be certified to the first auditor.”

The twelfth section provides, that “ the owner of any real estate so sold, his heirs or assigns, or any person having a right to charge such real estate for a debt, may redeem the same by paying to the purchaser, his heirs or assigns, within two years from the date thereof, the amount for which the same was so sold, and such additional taxes thereon as may have been paid by the purchaser, his heirs or assigns, with interest on the said purchase-money and taxes, at the rate of ten per centum per annum, from the times that the same may have been so paid.”

The fifteenth section provides, that “ when also an entire tract of land is so sold, and not redeemed within the said two years, the purchaser, his heirs or assigns, at or tbeir expense, shall have a report made by the surveyor of the county to the court thereof, specifying the metes and bounds of the land sold and the names of the owuers of the adjoining tracts, and giving such further description of the land sold as will identify the same ; and the county court, unless it see some objection to such report, shall order the same to be recorded.”

Section sixteen provides, that “after the expiration of the said two years, the purchaser of any real estate so sold and not redeemed, shall obtain from the clerk or deputy clerk of the court of the county or corporation, whose officer may have sold such real estate, a deed conveying the same, in which shall be set forth all the circumstances appearing in the clerk’s office in relation to the sale,” &o.

The twenty-second section provides, that “ when the purchaser of any real estate so sold, his heirs or assigns, shall have obtained a deed therefor, according to the six preceding sections, and within six months from the date of such deed, shall have caused the same to be recorded in the court of the county or corporation in which such real estate shall lie, such estate shall stand vested in the grantee in such deed as it was vested in the party assessed with the taxes, on account whereof the sale was made, at the commencement of the year for which the said taxes were assessed, notwithstanding any irregularity in the proceedings under which the said grantee claims title, unless such irregularity appear on the face of the proceedings. And if it be alleged that the taxes, for the non-payment of which the sale was made, were not in arrear, the party making such allegation must establish the truth thereof by proving that the taxes were paid.”

In the case at bar the receipt of the sheriff to the purchaser, William It. Oox, seems to be in due form. It shows on its face, that the land was sold for the nonpayment of taxes upon the land for the year 1850, and that the land was charged with the taxes in the name of Thomas L. Hutton; that the quantity of ‘the land charged was three thousand three hundred and seventy-five acres; it gives its local description; it shows, ihat the amount of taxes due was $1.04; that the quantity of land sold was three thousand three hnndred and seventy-five acres ; that the name of the purchaser was William R. Cox; and that the amount of purchase-money was $1.04, and that the amount of sheriff’s commission was 25 cents, and the receipt 25 cents, making's total of $1.54 paid by the purchaser, Cox, to the sheriff. It must be observed that the receipt of the sheriff is not required by the law to be filed in the clerk’s office or elsewhere. The receipt is the mere private paper of the purchaser. The caption to the list of the sales returned by the sheriff to the county court appearing in this case is as follows, to-wit: “Memorandum of real estate -within the county of Kanawha, sold in the months of September and October, 1855, for the non-payment of taxes since the year 1850.” This list shows the name of the person charged with the tax to be Thomas L. Hutton; number of acres charged, the local description, “Blue creek” (the same as in the said receipt of the sheriff), the amount of taxes due $1.04; the quantity of land sold three thousand three hundred and seventy-five acres; the time of sale the 15th of October; the amount of purchase-money $1.04.

The oath of the sheriff appended to said list is as follows, to-wit: “Virginia, Kanawha county, to-wit: I, John Slack, sheriff of Kanawha county, do swear, that the above and foregoing list contains a true account of all the real estate within my county, which has been sold by me during the present year (other than -was bid in by me for the commonwealth according to the act of Assembly in such cases made and provided, a list whereof is hereunto annexed) for the non-payment of taxes thereon since the year 1850, as per list certified to me by the Auditor of Public Accounts for sale for said taxes, etc., and that I offered the whole of the lands contained in ^e said list at the September and October terms of the court of said county, according to law, and that I am not directly or indirectly interested in the purchase of any of said real estate. So help me God.

“John Slack,

“Sheriff Kanawha County

“Sworn to and subscribed belore me, a justice of the peace for said county, this — day of December, 1850.

“Jacob Goshorn, J. P.”

The list of lands and lots returned as delinquent in the county of Kanawha for different years, including the year 1850, and certified to the sheriff or collector for sale in 1855, shows that three thousand three hundred and seventy-five acres were returned delinquent in the name of Thomas L. Hutton, located on Blue creek, for the year 1850, and that the amountof tax was 84cents, and total tax and damages thereon $1.04. The deed from Quar-rier, clerk, to said Cox for the said three thousand three hundred and seventy-five acres of land recites that the land was sold for the non-payment of taxes thereon, for the year 1850. I have carefully examined the cases of Flanagan v. Grimmet et al., 10 Gratt. 421; Hobbs v. Shumate, 11 Gratt. 516; Buchanan v. Reynolds, 4 W. Va. 692, and reviewed the case of Forqueran v. Donally, 7 W. Va. 114, and also the case of Dequasie v. Harris infra (decided at the present term of this court), and my conclusion is, that although said tax-deed from Quarrier, clerk, to William R. Cox must be held and considered valid and binding as to Charity Vance per force and effect of the decision of this court in said case of Goshorns v. Friend’s adm’r et al., yet, that said tax-deed is void and inoperative as to the lien created upon one undivided moiety of the tract of land in the bills mentioned by the deed of trust executed to the plaintiff as trustee in the bill mentioned, to secure the payment of the debt in said deed of trust mentioned, with its legal interest, and as to said deed of trust so far, and only so far, as it may be necessary to sell the undivided moiety of the tract of land therein mentioned to raise the money to pay the said debt and interest. And that therefore the court erred in dismissing the plaintiff’s bill.

It is true, that, as the case stands, it seems that the said tract of land was returned delinquent for the taxes charged thereon for the year 1850, and that the Auditor certified the same to the sheriff, as being so returned delinquent, for sale in the year 1855, and that the sheriff ought to have sold it at the September or October term of the county court of Kanawha, in the year 1855, for the taxes charged thereon for the year 1850; but did he do so ? The return of the sheriff of the sale, made under his solemn oath, which is required by the law to be made for manifest purposes, states clearly that he sold the land “for the non-payment of taxes thereon since the year 1850.” And this is stated in his return in two distinct places, the first in the caption to his return, and the other in his solemn oath thereto appended, and nowhere on the lace of the return or in his said oath thereto does the contrary appear. Had the clerk the authority to correct or disregard the return of sale of the sheriff, as he did in this case ?■ The law in force at the time, to-wit: the 16th section of said chapter 37 of the Code of 1849, says, that the deed shall set forth all the circumstances appearing in the clerk’s office in relation to the sale. How, in this case, can it be truly said that was done? One of the most material circumstances appearing in the clerk’s office in relation to the sale, and the only evidence to which the clerk could look under the circumstances as to whether the land had been sold, and for what it had been sold, was the sworn return of the sheriff, made in pursuance of law, and that return states, that the land was sold by him for the non-payment of taxes due since the year 1850, and the deed says it was sold for the non-payment of taxes thereon for the year 1850. This return of the sheriff of the sale is evidently required to be made in part for the benefit and information of the owner of the land, that he may see what part of his land has been sold, to whom, and wheri s0^> anc^ f°r what it was sold, so that he may see and determine for himself therefrom whether the sale as reported is valid or a nullity, or whether he has paid the taxes for the year for which the land was sold, or that he may redeem in the time required by the law if he so elects. It seems to me that the variance between the recital in said tax-deed and the said return of the sheriff is as to a material fact, and not as to a mere irregularity. The sheriff’s return of the sale was made in the regular course of his duty prescribed by law, and was the only evidence in the clerk’s office of the county court of the sale, and for what he sold it; and that return on its face, in my humble opinion, is materially defective in failing to show the year in which the taxes were not paid and for the non-payment of which he sold the land. It seems clear to my mind that if the said tax-deed had recited on its face, that the said tract of land was sold for the non-payment of taxes since the year 1850, it would for that cause have been void on its face.

I have made these remarks in justification and in support of the conclusion announced by me immediately preceding the same. Before arriving at said conclusion I examined with great care the opinion and decision of this court, before referred to, in the case of Goshorns v. Friend’s adm’r et al., deciding that the said tax-deed was valid at least as to the said Charity 'Vance, to see if I could concur with the reasoning and decision of the court in that case and apply it to said tax-deed as to the plaintiff and his cestui que trust in this case, but after patient examination and reflection I am unable in my conscience to do so. It is with great delicacy and respect that 1 have arrived at and announced my conclusion and judgment as above.

Other objections to the validity of said tax-deed have been alleged and argued before us in this case in connection with the one I have already considered; but under the views I have expressed, the consideration and decision of said other objections have become unnecessary and immaterial in the case; and I therefore do not decide, or express any opinion, in relation thereto.

It is proper that I should say, that I do not think that in ti’.is case we can regard ihe objections to said tax-deed, which I have considered, as cured by chapter 31 of the Code of this State, or any other act of the Legislature, to which my attention has been called, or which I have seen. Nor do I regard the conclusion to which I have arrived, or the views I have expressed in sup-, port of such conclusion, as being in the least in conflict with the oases in 10th and 11th Grattan, 4th and 7th West Virginia, and the case of Dequasie v. Harris, to which I have before referred, but as being in accord therewith.

It seems to me, for the reasons hereinbefore stated, that the said decree of the circuit court of the county of Kanawha, rendered in this cause on the 15th day of June, 1874, is erroneous, in so far as it decides that the plaintiff is not entitled to relief, and in so far as it dismisses the plaintiff’s bill and amended bill, and decrees that the defendants, Joel S. Quarrier, Fannie C. Quar-rier, John H. Thompson, Paulina S. Thompson, John Dryden, Eliza A. Cox, Frank Cox and Ida Cox recover against the plaintiff their costs about their defence expended, including $30.00, as allowed by law; and the said decree, to the extent aforesaid and no further, is reversed and annulled, and the defendants, Joel S. Quar-rier and John H. Thompson, must pay the appellants their costs in this court about the prosecution uf their appeal and supersedeas in this court expended, and all the other parts of said decree, not herein reversed and annulled, are affirmed. And this cause is remanded to the said circuit court of the county of Kanawha, with instructions to the said court to further proceed in the said cause according to the principles settled in this opinion, and further according to, the principles and rules governing courts of equity..

Judges Green akd JohNSON CoNcurhed. Judge Moore concurs in all of said opinion except so much of the same as decides said tax-deed invalid and the reasons given therefor.

Decree Reversed. Cause RemaNded.