44 W. Va. 260 | W. Va. | 1897
Eliza Carberry and others brought a bill in equity, alleging that Virginia, by two patents dated March 10,1790, granted to Abner Cloud two tracts of land, of five thous- and acres each, and that by various conveyances these lands vested in the plaintiffs, as co-tenants, and two infant defendants. The bill asked partition, but alleged that the plaintiffs found difficulties surrounding the title to the land, so that it became necessary to have the aid of a court of equity to remove the cloud upon the title; and, as specification of the cloud upon the title, the bill stated that by decree of the circuit court of Nicholas county in 1842, on the application of the commissioner of delinquent and forfeited lands, the two tracts were adjudged to be sold as forfeited for failure of their owners to enter the same on the land books for taxation, and under said decree they were sold, and that such right as was conferred by such sale had come to the West Virginia & Pittsburg Railroad Company, which was made a defendant. The bill assailed the title or right so vested in said railroad, as invalid, for reasons stated by it. Neither the plaintiffs nor the railroad company are alleged to be in actual possession, the land being in a state of nature, the plaintiffs averring only a constructive possession, flowing from their title. The railroad company demurred to the bill, and the circuit court of Kanawha county dismissed it outright. At the same term the plaintiffs asked the court to modify its decree by adding to it that nothing contained in the order of dismissal should affect or prejudice the right of any of the parties to institute any action at law to recover the land; and, the railroad company opposing the modification, the
The demurrer raises the question whether the railroad company is a proper party, and whether it can be compelled to remain a party, and have its right decided in a court of equity. The bill, in all its statements, represents the right of the railroad company as hostile and adverse to that of the plaintiffs, and asks that it be dispelled and held for naught. Though the claims of the parties proceed, derivatively, from the same source, — the grants from Virginia,- — yet they are ixtterly adverse to each other; the plaintiffs claiming the original right, as unaffected by the sale of the land as forfeited, while the railroad company claims under a proceeding adverse to the plaintiffs’ title, selling it as forfeited and lost to them, and vested for their default in the State. There is no ligament of community of interest between them. The plaintiffs’ counsel argues that the bill makes, not the case of a substantial adverse title, but it represents the claim of the company as so thin as to be a pretended title. Bat it has body enough to suggest to the plaintiffs the necessity of bringing it before the court to have it dispelled as a cloud, and it must therefore have an entity sufficient to call it an adverse title. If a nonentity, why bring it in? And, besides, the allegation that it originated under a sale of a court as forfeited lands tells us that it is a title of sufficient substance to warrant us in treating it as a conflicting title. The proceeding to sell the land was a judicial proceeding, not between parties, but ex parle and judicial, — not a mere nullity. Coal Co. v Howell, 36 W. Va., 489, (15 S. E. 214); Hays v. Heaiherly, 36 W. Va., 623, (15 S. E. 223); Smith v. Chapman, 10 Grat. 445. It is needless to expand here upon the proposition that equity will not entertain a bill which is but an action of ejectment, and thus try adverse title, unless it be incidental to relief under a known head of equity jurisdiction. It is, however, claimed that the court has jurisdiction for partition, and, as incident to its exercise, will settle all questions affecting the legal title, under section 1, chapter 79, Code 18‘>1, and so try titles entirely adverse. If so, the adverse claimant, having- no community of interest with the other party, and being in no view a co-tenant, but standing out
The railroad company was not a proper party to the suit, and its demurrer was well founded. This is not a suit to set aside a tax title under a mere ministerial sale by a sheriff, as in Taylor v. Stringer, 1 Grat. 158, and Simpson v. Edmiston, 23 W. Va., 675, but to nullify and dispel a title conferred by a solemn decree of a court. Counsel for plaintiffs would say that, if that statute does not sustain their suit, then the known jurisdiction exercised by courts of equity to remove clouds from title to lands will do so. Neither party is in possession actual. Mere constructive possession will not call for this exercise of equity jurisdiction. In Moore v. McNutt, 41 W. Va., 695, (24 S. E. 682), we held that “equity will exercise jurisdiction to remove cloud upon title to real estate where complainant, though having legal title, is in actual possession. It will
The appellants complain of the refusal of the circuit court to modify the decree as above stated. This raises a question long perplexing me. If a court on full hearing dismisses a bill for the reason that in its opinion there is no jurisdiction in equity, because of adequate remedy at law, but reserves no right to sue at law, by inserting- a clause of “without prejudice,” will the the decree bar an action at law to assert the same right? It is a rule that there is not res judicata where the court has no jurisdiction. The authorities are divided. Take the case where it is patent that there is no jurisdiction in equity, as a bill in chancery upon a note or bond, instead of debt; it would seem that the dismissal ought to be no bar. But, on the other hand, take a case where it is not so patent that there is no jurisdiction; where it is a nice question, and commingled with other considerations, so that one judge would decide the question in one way, and another the other way; it would seem that a general dismissal would be a bar, as it would be unreasonable to let the next judge decide on just what reason actuated the former judge in dismissing the bill. Perhaps, even, in th e patent case of no jurisdiction, as well as in the one not so patent, the defendant did not insist on no jurisdiction, or the judge did not act on that reason for dismissal, but decided the merits. In such case the former decision ought to settle the matter, because there has been one consideration and decision on the whole breadth and merits of the
Affirmed.