79 W. Va. 331 | W. Va. | 1916
The decree complained of dismissed, as for want of equity, a bill filed by vendors of land, holding a vendor’s lien thereon, and having for its purpose enlargement of an alleged equitable title into a clear legal one for better security of the debt and removal of cloud from the title of the vendees, in view of possible liability on covenants of warranty.
Two tracts of land containing, respectively, 52 acres and 322 acres, the former known as Lot No. 2 and the latter, as Lot No. 5, in a partition agreement entered into by the heirs .of Boyd W. Mullins, for division of a tract of land containing about 1,700 acres, inherited from their father, constitute the real subject matter of the suit. These two parcels formed a part of a large area of over 3,200 acres, purchased in smaller tracts and consolidated by the plaintiffs or their predecessors in title, and later sold to the Spruce Fork Company, a corporation, for the sum of $230,000.00, of which $70,000.00 was paid in cash, and for the residue of which, deferred in payments, a vendor’s lien was retained. The Spruce Fork Co. later conveyed the property to the Boone County Coal Corporation.
The plaintiffs having parted with whatever title they had to the land, either legal or equitable, and having no interest therein other than their lien thereon for purchase money, and
Strictly and technically, a bill to remove a cloud is maintainable only by the owner of a good legal title in possession of the land. The owner of an equitable title may sue for the cancellation of instruments that becloud and obstruct his right and for procurement of the" legal title, but his bill is not strictly a bill to remove a cloud from title, for, in law, he has no title on which a cloud can rest. Jurisdiction in the two classes of cases named is so elementary and so frequently exercised that authority for it need not be cited. The case presented by this bill belongs to neither class. It is one of first impression in this state. Though we have no authority in the decisions of this court, bearing directly upon the question thus raised, Jackson v. Kittle, 34 W. Va. 207, declares the right of a grantor obligated by a covenant of warranty, to enjoin the perfection of an adverse title which would becloud the title conveyed by him, or work a breach of his cov-enent of warranty. In the same case, it was declared, however, that, as a general rule, a party cannot maintain a suit to remove a cloud, or a bill, quia timet, who has no other interest than the fact that he has conveyed the property with a covenant of general warranty. For the contrary of this latter proposition, considerable authority is found in other jurisdictions. It has frequently been held that one who has sold and warranted title to realty may maintain judicial proceedings to remove a cloud on such title or to prevent a cloud thereon. Jackson Milling Co. v. Scott, 130 Wis. 267; Ely v. Wilcox, 26 Wis. 91; Pier v. Fond Du Lac Co., 53 Wis. 421;
In some] if not all, of these eases, purchase money delayed in payment or withheld, on account of a defect or cloud, was an element or factor exerting a strongly persuasive influence upon the courts. By way of argument to sustain -equity jurisdiction for relief under the circumstances presented by this record, but not by way of decision, it may be •said that the weight of authority seems to favor the right of .a warrantor to maintain a bill to clear the title he has bound himself to maintain and defend, even though he has no •direct interest in the'land. Ownership of a lien on the land is not title, but it. is a right respecting the land. It is a ligament or tie between the debt and the title, which enables the holder to control, have dominion over and power of disposition respecting, the very title itself. His lien is a highly valuable interest or right and the title to the land constitutes its basis or foundation. Right and power to clear and perfect the title, if accorded and recognized by a court of equity, constitute a means of perfecting’and protecting the lien. If such power does not exist, a vastly important right, lien security upon real estate, is left without adequate remedies for its protection and enforcement. The power of a court of equity, in a suit to enforce liens by sale of the lien subject, to clear away, by cancellation, mere clouds upon the title, to the end that the subject may be sold for an adequate price, in the interest of both the debtor and the creditor, cannot be doubted. To say the '•creditor, for the betterment and strengthening of his security, may have the same thing done, without enforcement of his lien, ■falls within the equity, scope and utility of the principle or rule stated, and gives the remedy under circumstances which make it equally beneficial to both parties. The creditor may not desire enforcement of his lien and continuance thereof may be both desirable and beneficial on the paid of the debt- or. In-other words, it may be to the interest of both, to have the lien continue and the debt remain unpaid for a number of years. Indeed, the debt may have been made to run over n-
The primary purposes declared by the bill are: (1),. specific performance of a written agreement of partition of the land, made by the heirs of B. W. Mullins, deceased, and dated, February 12, 1880, by execution and delivery of proper deeds conveying their respective interests or lots to the plaintiffs, the Spruce Fork Company or the Boone County Coal Corporation, as to the court may seem proper, upon the assumption of equitable ownership of all of the several interests in the plaintiffs by conveyances thereof, in the absence of a severance of the common ownership of the legal title by mutual conveyances among the heirs; (2), execution of a decree made and entered, July 4, 1887, in a chancery suit brought by the administrator of the estate of B. W. Mullins against his heirs, to subject the real estate of which he died siezed and possessed, to the payment of his debts, by the appointment of a commissioner to convey to the plaintiffs, Spruce Fork Co. or the Boone County Coal Corporation, the right, title and interest of Margaret Browning, one of the children of B. W. Mullins, and her heirs, or their grantees, in and to a tract of land known as Lot No. 5, in said partition agreement, and all of the right, title and interest of the heirs of Charles Mullins, a son of B. W. Mullins, or their grantees, in and to a tract known as Lot No. 2, in .said agreement; and, (3), cancellation of a deed executed by Jerusha Brown, one of the heirs of Margaret Browning, nee Margaret Mullins, to W. S. Browning, one from Alexander Browning and Sarilda Browning tó Eddie Mullins'and one from Rosa Estes and her husband to E. R. Ellis, all purporting to convey certain interests in said Lot No. 5, as having been derived by inheritance from Margaret Browning, deceased. By way of inci
Mullins died in 1869. The suit of Hinchman, administrator, against his heirs was brought in June, 1875. The partition agreement above referred to bears date, February 12, 1880, and was signed by the six living children of B. W. Mullins. It recites a previous oral agreement upon its terms and provisions, which, it is claimed, was made in 1875. It divided the land into six lots, and assigned Lot No. 1 to Amanda White; Lot No. 2, to Charles Mullins; Lot No. 3, to Harriet Jarrell; Lot No. 4, to Minerva Jarrell; Lot No. 5, to Margaret Mullins; and Lot No. 6, to Henry Mullins. No formal pleading made it a part of the record in the pending suit, but it was reported to the court and made a part of the record in the cause, by a commissioner to whom the cause was referred, sometime after a sale had been made and confirmed, to ascertain who the creditors of Mullins were; what division of the land had been made; how much was still due thereon; and any other matter any of the parties might deem pertinent. At the sale previously ordered and made, to satisfy indebtedness due to Anthony Lawson, J. E. Stollings and U. S. Hinchman, Charles Mullins had purchased one tract of the land containing 1,400 acres, for $149.00 and another containing 48 acres, for $100.00; and Conel Jarrell had purchased a 20 acre tract, for $80.00 and another of 49 acres, for $106.00, making in all $435.00. The commissioner reported that, with the consent, and by direction, of the creditors, he had taken the joint notes of Floyd C. Jarrell, Henry C. Mullins, C. W. Mullins and Paris W. Jarrell, for $145.00 each, and that shortly afterwards Henry Mullins had paid the Stoll-ings debt, and that, some time in December 1876, Charles Mul
By a deed dated, August 8, 1887, and reciting payment by B. W. White, of the amount so decreed against him, July 4, 1887, H. C. Ragland, special commissioner, conveyed to him lots Nos. 1, 2 and 4 mentioned and described in the partition agreement and the memorandum annexed thereto, being the lots therein assigned to his wife, Minerva Jarrell and Charles Mullins. By a deed dated, October 14, 1896, and reciting a sale of Lot No. 5, (assigned to Margaret Mullins by the agreement, but decreed to have been acquired by the heirs of Charles Mullins), to W. F. Altizer, by said heirs, naming them, and a direction in writing by them so to do, he conveyed that lot to Altizer. By a deed dated, January 21, 1902, the heirs of Charles Mullins executed a deed to Altizer in which they recited and confirmed the conveyance made to him by Ragland, special commissioner, pursuant to the decree of July 4, 1887. That deed contains this recital: "Whereas, the parties of the first part, before receiving a deed for their father’s share in the said real estate from said Special Commissioner sold the same to the said W. F. Altizer,
The lines of contention are drawn around and upon the partition agreement; the decree confirming the sale made to Charles Mullins and Conel Jarrell, in 1876; the recital of the acquisition of Lot No. 2, by B. W. White, and Lot No. 5, by the heirs of Charles Mullins, in the decree of July 4, 1887; rather indefinite ■ and conflicting oral testimony as to an alleged exchange of Lot No. 2, by Charles Mullins, with Margaret Mullins, for Lot No. 5, aside from the recital and as early -as 1875, and their respective holdings, claims and residences, before the partition agreement was made, and from the date thereof until the decree of July 4, 1887, was entered; and the subsequent deeds and other acts of the parties, tending to establish title in the plaintiffs by estoppel. Loss of title by Charles Mullins’ heirs, by estoppel, is resisted and denied, on the ground of their infancy, at the date of the alleged exchange of Lots; and such loss by Margaret Browning is denied, on the ground of her coverture. Invalidity of the decree of July 4, 1887, in so far as it purports to recognize and enforce the alleged exchange, between Charles Mul
Harriet Jarrell, wife of Paris'Jarrell and one of the heirs, was omitted from the summons. It purports to make five other children of B. W. Mullins parties. Henry, Charles, Amanda and Minerva Jarrell, nee Mullins, are correctly named. The other one is designated as Margaret Manerva Mullins. These five and Harriet Jarrell constituted all of the heirs. The summons was executed on Margaret Mullins hy her right name. The very informal hill is worse than the summons. It omits Henry Mullins as well as Harriet Jarrell, and correctly names Charles Mullins, Amanda Mullins and Minerva Jarrell. It names another person as defendant and describes her as “Margaret Jarrell, late Margaret Mullins.” Both the summons and the hill describe all the parties as heirs of B. W. Mullins, deceased. Erroneous insertion of a middle name in the summons, for Margaret Mullins, obviously did not invalidate it as to her, for, in law, the middle name is ignored and treated as no part of the name. Slingluff v. Gainer, 49 W. Va. 7; Long v. Campbell, 37 W. Va. 665. That struck out, the summons read Margaret Mullins. The bill erroneously describes her as the wife of Paris Jarrell, but gives her maiden name as Margaret Mullins. A comparison of the bill with the summons would have left no doubt of the intention of the pleader to charge Margaret Mullins. These virtually self-correcting misnomers did not prevent the jurisdiction of the court from attaching. Tomblin v. Peck, 73 W. Va., 336; Chapman v. Branch, 72 W. Va. 54. The omission of Harriet Jarrell, a necessary and proper party to the suit, does not render the proceedings void as to those who were parties. It would have been good ground for reversal on appeal. Unless she made herself a party by signing the partition agreement, the proceedings were void as to her, but, until reversed, the decree was binding upon all who were parties to the suit, and the right of appeal has long since expired. Gebhart v. Shrader, 75 W. Va. 159.
The argument seems erroneously to assume that Margaret Browning, at sometime, had sole and separate legal title to> Lot No. 5, and Charles Mullins or his heirs, separate and distinct legal title to Lot No. 2. There was no such title in either case. The partition agreement did not sever the legal title. At the date of that agreement and afterwards, they and the-other heirs of B. W. Mullins held the legal title to the entire-tract in common, whatever their equities may have been. The partition agreement amounted to nothing more than a
Two of the Charles Mullins heirs admit, in their testimony, that Altizer paid them a consideration for their execution of the quit claim deed of January 21, 1902. No doubt something was paid to all the others. One of these heirs, C. H. Mullins, executed this deed before he became of age. After obtaining his majority, he brought a suit against M. B. Mullins, to whom Altizer conveyed, and M. B. Mullins’ grantees, to avoid the deed, and then compromised the suit and executed a new deed, in consideration of $1,500.00, at least $500.00 of which went to one of his brothers. Another one of the heirs, Essie Burgess, Avas a married woman at the time of the execution of the quit claim deed, and it is contended her recitals in that deed do not estop her from claiming title to Lot No. 2. For reasons already stated, we are clearly of the opinion that all of them were effectually estopped from claiming any title to Lot No. 2. They took Lot No. 5, and dealt with it as their own and conveyed it away for a consideration. Presumptively, they directed Ragland, special commissioner, to convey it for them and afterwards confirmed his deed. Thus, they got what they were legally entitled to, although they may have unwisely and improvidently disposed of it, in ignorance of its real value.
The decree, however, properly construed and interpreted, was not a decree of partition, but a decree of sale. Notwithstanding the partition agreement brought to the attention of the court, the titles recognized in that instrument were within the control of the court and under its power of disposition to satisfy the debts on the estate, which were superior to the rights of the heirs. The court ascertained that B. W. White was to take the three interests or lots described and designated in the agreement for his wife, Amanda White, Minerva Jarrell and Charles Mullins, respectively, for the equitable portions of the indebtedness due on them, and pay it in consideration of a conveyance of the title thereto by the court, through its special commissioner. It also ascertained that the heirs of Charles Mullins were willing to take and pay for Lot No. 5, designated in the agreement, as the lot of Margaret Browning, in the same manner, and that M. B. Mullins would take the lot designated therein for Harriet Jarrell, and the heirs of Henry Mullins were willing to take the lot set apart therein for their father, at prices equal to the equitable proportions to the indebtedness due thereon. These propositions the court accepted and directed its special commissioner, on payment of the amounts the parties had signified their willingness to pay, respectively, to convey the land to them. For the purpose of sale, the court could have divided the land into such lots. Finding the heirs had caused a survey and division of the land into convenient lots for their purposes,
All courts say the effect of an ambiguous judgment or decree is to be determined by reference to the pleadings and other proceedings in the case. St. Lawrence Boom Lumber Co. v. Holt and Mathews, 51 W. Va. 352, 376; Walker v. Page, 21 Gratt. 646; Norvell v. Lessueur, 33 Gratt. 222;
In so far as the defenses made rest upon claims of title by adverse possession, no cognizance of them can be taken in this suit. The jurisdiction cannot go beyond the limits of privity. Conflict between the B. W. Mullins title and strange, hostile titles, dependent upon issues of fact, proper for jury determination, if there be such, must be saved and excluded for determination in a court of law. Miller v. Morrison, 47 W. Va. 664; Freer v. Davis, 52 W. Va. 1; Bright v. Knight, 35 W. Va. 40; Davis v. Settle, 43 W. Va. 17. The doctrine that equity jurisdiction for one purpose gives such jurisdiction for all, is subject to this limitation. Under no circumstances, will a court of equity determine questions of title by adverse possession, dependent upon issues of fact, for, in such case, there can be no equity between the parties, relating to the adverse title. An equity respecting only one title cannot be treated as an equity pertaining to another wholly distinct, strange and hostile, for the purpose of conferring equity jurisdiction and depriving the adverse claimant of his constitutional right of trial by jury. An exception dispensing with that high privilege must be founded upon some
Reversal of the decree complained of is an inevitable consequence of the conclusion here stated, but, as has been stated, the Boone County Coal Corporation has the B. W. Mullins title to lots Nos. 2 and 5, as against all parties to the decree of July 4, 1887, and their heirs, by virtue of that decree and the conveyances made under it, and the lien of the plaintiffs upon that title is valid, binding and superior to any claim thereto set up by any of such parties and their heirs, wherefore there is neither occasion nor right to require the execution of any new deeds. In so far as the deeds executed by Jerusha Brown to W. S. Browning, by Sarilda Browning and Alexander Browning to Eddie Mullins and by Rosa Estes to .E. R. Ellis, purport to pass the B. W. Mullins title to portions of Lot No. 5, they are mere clouds upon that title and must be -cancelled and declared to be void and of no effect as to it. Deeds made by C. ET. Mullins, an heir of Charles Mullins, to P. M. Mullins, Apr. 2, 1906, and by Jerusha A. Brown, an heir of Margaret Browning, and her husband, to Chas. E. White and Milde W. White, Feby. 27, 1908, purporting to convey interests in said Lot No. 2 will be cancelled in like manner and to the same extent. But. the prayers for injunctions and writs, of possession must be denied, in view of the claims of title by adverse possession.
What relief the plaintiffs are entitled to, if any, against the heirs of Harriet Jarrell, who was not a party to the suit of Hinchman v. Mullins’ Heirs, and to whom Lot No. 3 was assigned in the partition agreement, but from whom it was transferred to M. B. Mullins by the decree of July 4, 1887, the record is too meager and indefinite to enable us to say. Plaintiffs do not claim to have owned that lot, but they may be entitled to a decree extinguishing the apparent interests of her heirs in Lots Nos. 1, 2, 4, 5 and 6. Lot No. 6, was assigned in the agreement to Henry Mullins and decreed to his heirs. Plaintiffs claim to have obtained the entire title to it, but an undivided one-eighth of it was claimed by Madora B. Mullins, a daughter of Henry Mullins. The final decree, however, recites a withdrawal of her answer. For settlement
Reversed. Decree for Complainants. Remanded.