53 W. Va. 443 | W. Va. | 1903
We are met at the threshold by an objection to the hearing
Chapter 135 of the Code of 1868, made no limitation for the allowance of an appeal or writ of error. That was a matter of right, where the appeal or writ of error would lie, upon execution and delivery of the undertaking prescribed in section 2., The limit for giving and filing the undertaking was five years next after the date of the decree, judgment or order appealed from. Chapter 17 of Acts, 1872-73, was a new enactment, covering the whole subject of appeals, writs of eerror and sup&i'sedecbs. It provided for a petition, assigning errors, thus giving the power to the court to refuse the writ. It limited the presentation of the petition to five years, from the date of the decree or judgment. In order to have a limit on the time of giving the appeal bond, section 17 was enacted. If five years had elapsed from the date of the decree or judgment before the record had been delivered to the clerk of the appellate court, no process could be issued by him. Therefore, no bond could be given. Taking the sections together, they required the appeal to be perfected within five years from the. date of the decree. Said section 17 was re-enacted in the Act of 1882. Appellees contend that as the Act of 1882 covered the whole subject of appeals, writs of error and supersedeas, and repealed all acts and parts of acts with
Section 3 of chapter 157, Acts 1882, provides that no petition shall be presented for an appeal from, or writ of error or supersedeas to, any judgment, decree or order, which had been rendered or made more than five years before such petition was presented, if the judgment, decree or order mentioned in the petition had been rendered or made before said chapter, as amended, took effect; but if such judgment, decree or order was rendered after said chapter took effect, such petition should not be presented after two years from the date of such judgment, decree or order. It may be, as contended, by appellees, that the legislature intended by the Act of 1882, to limit-an appeal, in any court, to two years from decrees and judgments rendered after that act took effect; and that by inadvertence section 17 was not repealed, while section 3 was amended by limiting the presentation'of the petition to two years.
Be this as it -may, as section 3 then stood, it limited the application for an appeal to two years; but section 17 gave five ■ years within which to perfect the appeal, by bond and delivery of the record to the clerk. If we were required.to find a reason for the difference in time allowed by sections 3 and 17, we would say that there should be some time given after the granting of the appeal, in which to execute and deliver the bond. The appeal may be allowed on the last day of the two years. The bond must be given before the clerk. of the- circuit court, wherein ' the decree was rendered. Without sufficient time to do this, the appeal would be uselss. The legislature may have given too much time; but it was so enacted. ’ ■
Section 3 of chapter 14, Acts of 1899, is now section 3 of chapter 135 of the Code. Although the legislature of 1899 saw
By chapter 78 of the Acts of 1901, said section 17 was amended and re-enacted, and changed the time for giving the bond and filing the record from five to two years. Said chapter 78 was passed February 22, 1901, and took effect ninety days thereafter. This chapter was the first express change made by the-legislature in said section 17. There is no repugnancy in the said sections 3 and 17, in all of the legislation referred to-. The two sections relate to two different matters — one limits the time for the application for the appeal — the other limits the time for the execution of the bond, and delivery of the record to the clerk. Both can stand, with distinct operation.
It is further contended that chapter 78, Acts 1901, amending section 17 of chapter 135 of the Code, by providing that the bond must be given, and the record delivered to the clerk within two years instead of five, retróacts and vitiates this appeal. This proposition is contrary to the rule that laws do not retroact from mere implication. Stewart v. Vandervort, 34 W. Va. 524.
When the bond in question was given, said section 17 of chapter 135 of the Code had not been amended. Appellant, under it, had five years from the date of the decree within which to execute the appeal bond, and file the record of the cause with the clerk. Said section 17 was not repealed or amended by the legislature by implication. We see no reason for saying that chapter 78 of the Acts of 1901 is retroactive. We must therefore hold that appellants have, within the time allowed to them by law, properly perfected their appeal.
The said decree' appealed from was rendered in -the cause of Charles S. Despard- and others against Diana M. Despard, J. M. Bennett and others, and in the cause of J. M. Bennett against Allen Stalnaker and others, both commenced in the circuit court of Calhoun County but removed to the circuit court of Harrison County, and there consolidated and heard together.
The bill in said first mentioned cause was filed on the 22nd day of October, 1879, by Charles S. Despard, Burton M. Des-pard, Laura B. Goff and Nathan Goff, Jr., plaintiffs, against Diana M. Despard, Flora H. Despard and Duncan Lee Despard,
The bill further alleges that out of said one thousand five hundred acre tract, there were sold to Martha Luzzadder, on the 18th day of May, 1874, eighty-six and one-fourth acres for the sum of $258,75; to Henry M. Knight on the 25th day of July, 1874, a parcel supposed to contain seventy-five acres at three dollars per acre; and to Emery Ball, on the 16th day of April, 1870, one hundred and twelve and three-fourths acres for $338.00; that out of said one thousand two hundred acre tract.
The plaintiffs say that they know of no other real estate in Calhoun County owned .jointly by said Bennett and said Burton Despard at the time of his death, and call upon said Bennett to discover and state in his answer to the bill, whether any other tracts were so owned by them in said county, and to produce and file the evidence of his title thereto-, so far as the same may be in his possession. Plaintiffs further charge upon information and belief that said Bennett had collected large sums of money on account of the sales of the lands made as aforesaid, and they also call upon him to state fully what collections had
,On the 28th da'y of May, 1880, on motion of the plaintiffs, a rule was awarded by the court in said cause against said J. M. Bennett, requiring him to appear on the first day of the next term and show cause, why he should not be fined and attached for his contempt in failing to file his evidence of title to the said land, if in his possession.
On the 21st day of February, 1881, said J. M. Bennett filed his demurrer and answer to the bill.
On the 2oth day of October, 1883, "an amended bill was filed in said cause, making Edwin Maxwell, as executor of said Burton Despard, a party defendant thereto.
Thereupon said Maxwell as executor as aforesaid, filed his answer, and the plaintiffs replied generally to the said answer of' <T. M. Bennett, which had been theretofore filed. At the same time,, on motion of plaintiffs, it was ordered by the court that said J. M. Bennett appeal’ on the first day of the then next term, • and produce and file with the papers in the cause any contract ip. his possession made between him and said Burton Despard, respecting the interest claimed by Bennett in the said four hundred and thirty-eight, one thousand five hundred, one thousand two hundred and five hundred acre tracts of land; also any-written contract in his possession, entitling him to one-half of all lands, entered and patented by said Burton Despard in Calhoun and Gilmer Counties. At the February term, 1884, of said court, an attachment was directed to issue against, said Bennett, for his failure to appear in obedience to 'the rule issued against him at October term, 1883, as aforesaid.
Defendant, J. M. Bennett, in his answer, admitted the joint ownership of himself and Burton Despard in the land as stated in the bill, and also averred and charged that the said four tracts of land, containing four hundred and thirty-eight, one thousand five hundred, one thousand two hundred and five hundred acres, respectively, were always owned by Despard and himself jointly;
The answer further substantially avers that, in addition to said tracts, by a patent of the commonwealth, of Virginia, bearing date on the 30th day of November, 1848, there was granted to said Burton Despard and J. M. Bennett, jointly and equally, another tract of land, lying on the south side of the Little Kana-wha river, opposite Big Bend, containing one thousand acres, which tract covered a smaller one of eight hundred and twenty-four acres, previously purchased by Despard and Bennett of George Holbert; that prior to the 18th day of June, 1865, said Burton Despard had negotiated a sale of said last mentioned one thousand acre tract for $2,000.00; that Despard, by letter, requested Bennett to convey said land to Mm (Despard) to the end that the sale might be consummated; that accordingly Bennett did execute a deed for said one thousand acre tract to Des-p.ard; but the sale thereof was never consummated; that said Despard often told Bennett that said deed should be returned to him, which was never done; that after the death of Despard, the deed was found among his papers, and by his personal representatives or heirs placed on record.
On the 28th day of October, 1887, said J. M. Bennett departed this life, testate, and in and by his last will and testament, devised all his real estate to his only children, to-wit: W. G. Bennett, Louis Bennett, Gertrude Bennett, who afterwards intermarried with Fleming Howell, and Mary L. Bennett, who intermarried with Wm. B. Bowie. Said W. G. Bennett and Louis Bennett were named as executors in said will, and qualified as such.
The said suit was revived ¿gainst said Bennett’s devisees and executors, and thereupon said executors filed their answer to the bill and amended bill in said cause, in wMch they, among
The bill in the cause against Allen Stalnaker was filed in the name of said J. M. Bennett, Edwin Maxwell, as executor, and the said children and devisees of said Burton Despard, deceased. Said executor and devisees were afterwards transposed as parties and made defendants in said cause with Stalnaker. It is alleged in the bill that on the 22nd day of April, 1869, plaintiff, J. M. Bennett, together with Burton Despard, by their agent, Milton Norris) sold to defendant, Allen Stalnaker, one hundred and nineteen acres of land, which is the same one hundred and ninety-nine acres hereinbefore referred to in said first mentioned cause, at the gross price of $625.00; that said Stalnaker paid to said Norris on the day of sale $325.00 on said land, and gave his single bill for $300.00, payable on the 15th day of October, 1869, to said Burton Despard, specifying that it was given for one hundred and nineteen acres of land on Pine Creek; that in fact, said single bill was for the joint benefit of Despard and Bennett; that said Stalnaker had made various payments, stating them, to said Norris on said single bill; that, at the time said Norris sold said land, he executed a title bond to Stalnaker, whereby he bound said .Despard and Bennett to- convey said land to Stalnaker by deed with covenants of general warranty, when the purchase money therefor, and taxes thereon were fully paid. After certain othér allegations, the bill prays for specific enforcement of said contract; that said Stalnaker be compelled to pay the balance of the purchase money due on said land, and
Said Edwin Maxwell, Ex’r., and the Despard devisees in turn answered this amended bill, denying all the material allegations thereof, denying that said Haverty ever had any interest in said-lands; and assailing the said tax sales and deeds thereunder. Numerous and voluminous depositions were taken and filed by the parties on both sides of the controversy; and the causes being matured, consolidated and heard by the court, it was adjudged and decreed that, as to said one hundred and ten acres on Yellow creek granted to said J. M. Bennett and Burton Des-nard on the 28th day of February, 1849, and as to said four hundred and thirty-eight acres, situate on Big Root, and the one thousand five hundred acres, situate on the ridge between the waters of Little Nanawha and the West Fork, and the five hundred acres situate on Ball’s Camp Fork of Pine creek, and the one thousand two hundred acres situate on Nigh Cut run, all granted to said Burton Despard on December 31, 1844, and particularly described in exhibits filed with the original bill, the said J. M. Bennett and Burton Despard were the joint equal owners thereof although the grants therefor may have been issued to said Burton Despard alone’; that the said devisees of said J. M. Bennett, deceased, are the joint equal .owners as Ijeirs at law and devisees of said J. M. Bennett, of one undivided
In the said cause of Bennett against Stalnaker and others the court decreed that said Allen Stalnaker should pay to W. G-. Bennett and Louis Bennett, as executors of J. M. Bennett, deceased, the sum of $235.17, being one-half of the amount of the balance of purchase monejq due from him for said one hundred and nineteen acres of land so purchased by him, and that he should pay to said Edwin Maxwell, executor of Burton Despard, deceased, the like sum of $235.17, being the other half of said purchase money, due from him, with interest on each of said sums from the 25th day of January, 1899. The decree makes other provisions as to> costs, and the sale of said land, in case of default of payment by Stalnaker; and then refers the first named cause to M. M. Thompson, one of the commissioners of the court to raise and state an account between J. M. Bennett and Burton Despard, and between the executors of said Bennett and the executor of said Despard, respecting the sales of the parcels of land hereinbefore referred to, and to the collection of purchase money, the payment of taxes, and any other
Appellants assign as error: That the circuit court erred in holding that the four tracts of four hundred and thirty-eighty five hundred, one thousand two hundred and one thousand five hundred acres of land patented to Burton Despard, or any part of either of said tracts, were originally owned jointly, by J. M. Bennett and Burton Despard, and in directing a partition thereof; and in decreeing any part of the purchase money due from Allen Stalnaker, to the executors of J. M. Bennett, and more especially so, without taking into account the collections made . from Stalnaker; and' ascertaining how the account stood between Bennett and Despard on account of the sale to Stalnaker, when by the same decree, the cause was referred to a commissioner for settlement of the accounts between the parties relating to the collections of purchase money.
There seems to he no contention about the one hundred and' ten acre tract. It appears that the said eight hundred and twenty-six acres are almost, if not altogether, covered and included in the one thousand acre tract. The last mentioned tract was originally located and entered by Michael H. I-Iavorty in the name of Burton Despard, by a survey dated March 1, 1844. One George Holbert claimed that he had already acquired title to this land. A caveat was issued against Burton Despard. A compromise was then made, and Bennett and Despard purchased Holbert’s claim, on the 27th day of September, 1848 A patent for said one thousand acres was then issued jointly to J. M. Bennett and Burton Despard, which bears date on the 30th day of November, 1848. No change appears in the title thereto until the year, 1865. On the 15th day of June, 1865, Despard wrote and sent to Bennett the following letter:
“I regret that I did not see you in Clarksburg, I did not know you were there till I was leaving for this place. I desire much to see you and arrange our land matters. I have conditionally sold the Hobert land & the one thousand acre survey adjoining and suggest that you prepare and send me a deed for your interest in it, together with all the title papers you have in reference to "that land — let the deed be made to me as I have furnished my agent with a deed of general warranty from me to be delivered when & if the contract is closed. If the sale is closed*456 it will net ns I think over $15000. I am glad yon have returned "& hope your old friends will'treat yon kindly.” Attached to the above letter is the following: “The price conditionally fixed on one thousand and sixty-nine acres is $20000/ but refused to pay Norris his com’n. and I never promised Mr. Fleming who m acting for me a very liberal com’n. he has been several times in Pittsburg and Gilmer seeing after oúr lands and demands a large compensation especially as he put in this land instead of his own, we can make him useful in other matters. It is very important and you put me in your deed to' me and all the title papers as to the Ilobert piece so if necessary I can show a clear title. Mr. Baily claims an interest in this land & if 1 recollect what we agreed to he should have a part. What do you remember, but for the present do' not say to him I am about to sell. I have been writing all day & am scarce of paper we have a large amt., of taxes to pay which must be done soon.”
The foregoing letter, postscript and signature thereto, were proved before the clerk of the county court of: Calhoun County, on the 21st day of October, 1882, by the oaths of Robert F. Fleming, Robert G. Linn and William E. Lively, and thereupon the paper was admitted to record in said clerk’s office. Judge Maxwell, as a witness in this cause, also proved the said letter and signature thereto, to be in the handwriting of Burton Des-pard. J. M. Bennett, by his deed, acknowledged by him on the 3rd day of August, 1865, in consideration of the sum of one dollar, conveyed to said Burton Despard, one equal undivided half of the tracts of land described therein, situate in Calhoun County, “Containing one thousand acres, being a tract of land granted by the commonwealth of Virginia to said Despard and Bennett; also an equal undivided half part of another tract purchased jointly by said Despard and Bennett of George Holbert, and known as the Holbert farm, and is principally covered or lapped upon by the said survey first herein named. “This tract was granted to Alexander Harrison as a tract of five /hundred acres, but is estimated to contain eight hundred dnd twenty-six acres by recent survey.” The grantors, by said deed, warranted generally the property thereby conveyed. It appears that said contemplated land sale was never consummated; that said deed was found, after Despard’s death, among his papers, and, on the 7th day of November, 1877, was admitted to record in the
Judge Maxwell also testified concerning the transaction referred to in Despard’s letter of June 18, 1865, as follows: “I don’t know anything about it personally, and I don’t think I know anything about it at all, except what Col.' Despard said to me.” Again: “He said he was trying to sell á tract of land belonging to himself and Jonathan M. Bennett, situated in Calhoun County; that he had taken a deed from Bennett for the land or for his interest in the land, so that he would be able to make title to it, if he happened to make a sale, without taking time to get a deed from Mr. Bennett. He also said he had failed to make sale.” It will also be observed that the deed, upon its face, is for the nominal consideration of one dollar. It was executed by Bennett and sent to Despard, at his request, to supply and perfect the title to the land, in case the sale thereof should be made by Despard as contemplated. The sale was not consummated. The deed failed in its purpose, and was never returned to Bennett.
The record shows that said. Louis Bennett filed his bill to equity in the county court of Lewis County against Lemuel Hav-erty and Daniel S. Haverty, Jonathan M. Bennett, Edwin Max-Avell, as executor of Burton Despard, deceased, and all of said heirs and devisees of said Despard, who were all duly served with summons in said suit which was afterwards transferred to, and tried and determined in, the circuit court of said county.
The bill in said cause alleges the joint equal ownership of said J. M. Bennett and Burton Despard in the said one thousand and five hundred acre tracts of_ land, respectively; the sale of a portion out of both of said tracts, supposed to contain one hundred and fifty acres, by a contract in writing, made by Milton Horris, as their agent, to said Haverty, at the price of four dollars per acre to be paid by the vendees; the assignment by J. M. Bennett of his interest in said contract with the right to receive the benefit thereof, to said Louis Bennett; that said Hav-ertys were put in possession of said land under their said contract of purchase; that said vendees had failed to pay said purchase money; and it then prays for a decree and sale of said land. On the 12th day of March, 1889, a decree was made and
The said special commissioner, under and by virtue of said decree of sale, did sell said land to said Louis Bennett, and others, the devisees of said J. M. Bennett, one-half thereof, and to said Edwin Maxwell, as executor aforesaid, one-half thereof for $600.00; which sum, the record shows, was paid by said purchasers in hand to said commissioner; and thereupon said sale was confirmed by the court, and the commissioner was further authorized and directed to convey the land to' the purchasers thereof according to their respective interests therein.
Milton Norris says that Bennett claimed an interest in the said lands since 1844. Other evidence shows that he made claim to ownership therein. Tax tickets for taxes assessed oh said' lands, duly receipted by the sheriffs for different yeárs, were found with Bennett’s papers, and are filed in the record. It is further shown that he exercised acts of ownership and control over, and expended money upon said lands. It is contended, however, .by appellants that all those acts were done under, and by authority of, his power of attorney from Despard, bearing date on the 10th day of January, 1848. An inspection of this document shows that it does not specify what particular lands or interest therein Despard owned or claimed at that time. It may be inferred from the record that he had no definite information about the matter. It is claimed by appellees that Despard had not been in that section of country where the lands lay. There ' is nothing irreconcilably inconsistent in this power of attorney, and the claim of Bennett. The latter was a practicing attorney and a regular attendant on the courts in the county where the lands are situated. It was convenient, no doubt, for Bennett to have authority to make sales of, and convey full title to the lands, without the joinder of Despard, just as it was proposed in.
Parkersburg, W. Va., Nov. 15, 1886.
J. M. Bennett,
Weston, W. Va.
Dear Sir:—
“I have just received a statement from Calhoun County of the Lands that B. Despard Heirs are interested in and were sold as delinquent Lands and I find that they were sold for the years 1883 & 1884 and the following lands were sold in the name of Bennett & Despard.
1500 acres on Rowels Run $108.11
1200 acres on Neigh Cut Run 44.77 ,
123% acres on Big Root 7.68
500 acres on Pine Creek 62.19
222.75
as you have been paying % of these taxes and did not pay then according to the sale paid your 1-3 in all the rest of these lands that were sold for Delinquent taxes in which the Despard Heirs are interested in Calhoun, Braxton & Gilmer Countys I write you as I am going to redeem the Despard Heirs portion. Whether you knew that they were sold in your name I understood you to say you had paid your share. Whatever we do we will have to do pretty quick these lands were sold to the State and the time runs out to redeem them on the first of December. I have written my att’y.. at Charleston to go to the Auditor’s Office and get a full statement of the Delinquent lands which we were interested in and I expect to hear from him in a few days and we can settle them all together if you so desire it. Yours truly, C. S. Despard.”
The deeds made by John O. Campbell, recorder of Calhoun
Milton Dorris further testifies that he commenced selling said lands as agent of Bennett and Despard in 1854, and sold-parcels to Henry Stallman, Mrs. Matthews, James A. Ferrell, Silas Petit, Aaron Petit, Wm. M. Taylor, Mrs. Shanks and Samuel Bell. On the 25th day of July, 1874, said Dorris, as agent of J. M. Bennett and B. Despard, sold a parcel of said land, supposed to contain seventy-five acres, to Henry W. Knight; on, the 18th day of May, 1874, Dorris, as such‘agent,
The material parts of the various records of chancery causes, are filed. One is a suit by J. M. Bennett and Burton Despard in the circuit court of Calhoun County, instituted against Wm. P. Haverty, to enforce their alleged lien for purchase money. A decree of sale was made therein, the land was sold by a special commissioner, bought in by Bennett- and Despard jointly, and the sale confirmed. As assignee of said J. M. Bennett, said Louis Bennett instituted suits against said Henry Stallman; Perry Ball and T. J. Law; Martha Lussader; Henry Knight; Emery Ball; and W. T. and E. T. Hathaway, respectively, for the collection of the purchase money due from the -said purchasers upon said parcels of land bought by them as hereinbe-fore set out. In at least nine of said suits, the claim of said J. M. Bennett to a joint equal ownership in said lands with Burton Despard, was distinctively and positively averred. The decrees therein were based upon that assumption, and to all of. said causes exhibited, except .the first mentioned, the said executor and devisees of said Burton Despard were parties and served with process therein; decrees were rendered thcrin in their favor for one-half of the purchase money due and in favor of said plaintiff for the other half. Under some of said decrees, the lands were sold and bought in equally and jointly by the Bennett devisees, and by Maxwell, executor as aforesaid. -Hone of said decrees, so far as this record discloses, was ever reversed, or set aside.
There is a mass of testimony about the alleged agreement made on the 10th day of August, 1843, by Bennett, Despard and Michael H. Haverty. What purports to be a copy theerof appears in the record. The original is shown to have been in the possession of said Haverty, and to have been found among his papers, but almost destroyed by rats. The fragments of it were not preserved. Lemuel Haverty, a son of said Michael
It also appears that Burton Despard was a’ lawyer, and we may infer that he understood his legal rights in the premises. A witness says that shortly before the- civil war, Despard and Bennett were engaged together several days at the law office of Benhett in the town of Weston in making a list of the lands in which they were jointly interested. Witness’s recolection was that the four hundred and thirty-eight, twelve hundred, fifteen hundred, one thousand, and five hundred acre tracts were put on the list. Despard also joined with Bennett in certain deeds conveying portions of the land to purchasers.
J.’M. Bennett was a man prominent in affairs; he is shown to have 'been auditor of the State of Virginia, before the war of the rebellion; he was a lawyer, and visited and practiced in the courts of his section; he made claim publicly to the ownership of an undivided half interest in the lands in controversy; he had control thereof, and expended money thereon in payment of taxes and otherwise; he appointed agents for Des-pard and himself, who sold parcels of same, some of which sales are shown to have come to the actual knowledge, of Des-pard; and the purchasers took possession of, and acquired title to the lands bought by them, under the contracts so made. It seems incredible that Despard was not fully cognizant of these transactions so vitally affecting his interests. He made no objection thereto. Herman on Estoppel and Res Judicata, Vol. 2, section 1061, says: “Acquiescence in a transaction may bar a party of his relief in a very short period. Thus, if one
Despard’s devisees, at this late day, should not be permitted to enforce their claim of entire ownership of the land.
The pleadings in the suits above mentioned were prosecuted to collect the purchase money for integral parts of said tracts of land, sold to various purchasers. The right of the plaintiff therein to recover was dependent, • in each suit, upon the ownership in, and title of J. M. Bennett to, the lands. This was alleged positively and distinctly in each cause, and the decrees were predicated therein upon that fact, and upon proper proof of the indebtedness. It is novhere denied that Despard’s executor and devisees were parties to said suits. Ho steps, so far as we know, were ever taken by them to- reverse or set aside decrees or any of them. "Igornmtia juris mem,mem excused. And so, all men are presumed to take notice of proceedings in the courts of justice.” Bennett on Lis Pendens, section 19. Other law writers say, “that the proceedings in the courts of justice are notice to .the world.” 2 Rand. 104.
At section .19 of Bennett on Lis Pendens, the following is noted: “After the bill is filed, and thus becomes a public record, and ample means are afforded for the public to become ad
•Appellants cite a list of authorities to prove that the aforesaid decrees, if binding upon them for any purpose, are not adjudications of the title to the unsold portions of said land as between J. M. Bennett and Burton Despard, or as between the heirs and devisees of Bennett, and the heirs and devisees .of Despard. A discussion of this matter seems unnecessary here. All of the facts and circumstances in this cause together with the conduct of the parties thereto established the agreement between Despard and Bennett, and that Bennett waste have a joint equal ownership with Despard in the lands. The subsequent grants thereof by the Commonwealth of Virginia to Despard álone did not divest Bennett of his interest therein. Despard, as to such interest, held the title as trustee for Bennett, and in equity, a trust resulted in his favor'for his proper proportion of the land. Murry v. Sell, 23 W. Va. 480; Potts v. Fitch, 47 W. Va. 63.
The decree of the circuit court adjudicating the ownership of said lands is right.
We cannot see how appellants are prejudiced by the matter complained of by them in their second assignment of error. In the said suit against Stalnaker, the balance of purchase money for the lands sold to him, due to Despard and Bennett, was ascertained and decreed to the plaintiffs'as their rights thereto were made to appear. This adjudication extended to no other purchase money. It is not shown that Despard or his personal representative or devisees has any specific lien upon this fund. Bennett’s estate is not alleged to be financially unable to pay any balance which might be found due from it to appellants. There is no apparent reason why the Stalnaker purchase money should be brought into the matters referred to said commissioner for settlement.
Affirmed.
