89 W. Va. 170 | W. Va. | 1921
The subject of complaint on this appeal is a decree perpetually enjoining the prosecution of an action of ejectment, commenced in the Circuit Court of Wood County, against the plaintiff and appellee herein, by Ií. R. Furbee in bis lifetime. While this suit was pending, Furbee died and it was revived against the executrix of his will and his legatees and devisees.
The subject matter of the litigation is Lot No. 64 of Stewart’s Second Addition to the City of Parkersburg, together with the dwelling house and other improvements thereon. In a divorce suit instituted and prosecuted to a final decree, in the Intermediate Court of Marion County, this property was twice judicially sold and conveyed, and Furbee claims the title mediately under the first of the two sales. Under the second, made after the first had been set aside by proceedings in the same cause, the plaintiff in this suit, I Earl Foggin, became the purchaser and obtained a deed for the property.
As has been suggested, this controversy has grown out of proceedings in a divorce suit in the Intermediate Court of Marion County. Within a month or two after his marriage, Earnest M. Foggin residing in Marion County, deserted his wife, Marie E. Foggin, transferred his business and property in Fairmont to his father and left the state. In November, 1909, the deserted wife brought her suit for a divorce from bed and board, in which she obtained a decree against the defendant, on June 1, 1910, for the sum of $200.00 to be paid within twenty days from that date, and $25.00 per month beginning on July 1, 1910, as alimony, and for the further sum of $100.00 for counsel fees and costs. At about the date of the institution of the suit, an attachment was sued out, directed to the sheriff of Wood County, and levied on the property in eontroversj'-. At the same time, a notice of Us pendens was filed and recorded in the Clerk’s office of the County Court of said county. On November 7, 1910, an order of sale of the house and lot, based upon the levy of the attachment, was entered. Before this order was executed, it was discovered that the trustee in a deed of trust by which the defendant had conveyed the property to secure a debt to a building and loan association, had conveyed it to an uncle of the defendant, under the pretense of having made sale thereof to him under the deed of trust, and that the uncle had subsequently conveyed it to the defendant’s mother, Mary Foggin. Thereupon, an amended and supplemental bill was filed, in which the trustee, the uncle, the mother, the plaintiff
Reversal of the decree of May, 1911, by motion under sec. 5, ch. 134 of the Code, after notice filed in the cause, November 10, 1911, as aforesaid, was sought upon nine different grounds specified in the notice. As that decree is not now before this court for review, it is not necessary to mention any of the grounds except the one sustained upon the motion, namely, authorization of the sale of the house and lot situated in Wood County, at the front door of the Court House of Marion County, after advertisement thereof in some newspaper published in Marion County. For this deviation from the law, in the decree of May 22, 1911, it was reversed in so far as it decreed the sale of the property, and the subsequent decree confirming the sale and ordering a deed to be made to the purchaser was set aside and the writ of possession awarded by it quashed. Then the decree of May, 1911, was modified and reformed so as to provide that unless the defendant or some one for him should pay the amount decreed to the plaintiff within thirty days, the property should be sold at the front door of the Court House of Wood County, after due advertisement thereof, instead of the front door of the Court House of Marion County. Properly interpreted, this decree did not reverse the former decree in so far as it adjudged the right of 'the plaintiff to have the property sold. It merely set aside the sale, corrected the error in the decree as to the manner and place of the sale, and then directed
Although neither the original bill nor the amended bill filed in this cause specifically charges bad faith between the commissioner and the purchaser at the first sale, or Marie E. Fog-gin and Shriver, to whom she conveyed, the court in its final decree found and adjudged that Marie E. Foggin was not a purchaser in good faith and that the purchase was made for the benefit of the commissioner. It further finds that Shriver had notice of the non-payment of the purchase money by Marie E. Foggin and that she had merely taken the title to protect the special commissioner, who was her attorney. As to Furbee to whom Shriver conveyed, there is no such finding nor adjudication in the decree. Upon the theory that he was a purchaser pendente lite and therefore took the property subject to the final disposition thereof in the divorce suit, such right as he obtained by the deed from Shriver was held to have been inferior and subordinate to that conferred upon I. Earl Foggin by the decree under which he purchased and the decrees confirming the sale to him and ordering a deed to be made to him.
While these proceedings were pending in Marion County, Furbee was endeavoring to obtain possession of the property by an action of unlawful detainer in Wood County. Before a justice of the peace and in the Circuit Court on appeal, he obtained judgments and a writ of possession, but, after reversal of the decree of May 22, 1911, his writ was quashed. Then he began his action of ejectment and this suit to enjoin followed.
Although the allegations of the bill are rather vague, its purpose is clear. It seeks cancellation of the deeds from Marie E. Foggin to Shriver and from Shriver to Furbee, as clouds upon the plainti^s title, and also an injunction against the prosecution of the action of ejectment, founded
As the original bill in this cause disclosed nothing more than clouds on the plaintiff’s alleged title, by its allegations and claims, the demurrers to it were improperly overruled. But there is a replication to the answer of the defendants, in which there are allegations of collusion and fraud on the part of the special commissioner, Marie E. Foggin, Shriver and Furbee, which, if true, made the conveyance fraudulent in law, if not in fact. These matters were brought into the cause in a very irregular and. unusual way. They should have been set up by an amendment'to the bill. However, in our practice, form is generally disregarded and pleadings treated and dealt with according to their substance. As these matters are in the pleadings under an erroneous designation and in bad form, they may be deemed, nevertheless, to have been brought in by way of amendment, and they were evidently so regarded by the trial court. In part, the decree stands on them and the evidence was taken as if they were part of the plaintiff’s bill. The defect in the bill has thus been cured, if these allegations taken in connection with the original bill make out a good cause of action.
In our opinion, the bill, treated as having been so amended, discloses only an equity in the plaintiff, of which he could not avail himself in the action at law. Although the de-' cree under which the first sale was made was reversed and
Obviously, Furbee’s purchase is not within tbe rule Us pendens. That rule is very rigid and harsh when it applies. Being so, its limitations are equally rigid and sometimes arbitrary. One of them is that tbe purchase must have been made from a party to tbe litigation. French v. The Loyal Company, 5 Leigh 680; Carr v. Callaghan, 3 Littell (Ky.) 365; Macy v. Fenwick’s Adm’r., 9 Dana 198. Shriver was in no sense a party to any suit at the time of his conveyance to Furbee, nor, having purchased after final decree, was he a purchaser from a party to a pending suit.
It does not follow, however, that the title he acquired may not be affected with an equity in favor of the plaintiff, arising out of actual knowledge of facts creating such an equity.
There is no direct proof of knowledge on the part of Shriver, at the time of his purchase, that Marie E. Foggin had not paid the purchase money, nor that she was not a purchaser in good faith. She had no money with which to buy the property and in fact did not pay the purchase price in money. As she was the sole creditor represented in the suit and her lien exceeded the sum she agreed to pay, the commissioner reported it as having been paid and brought into court. It may have been treated as having been paid and disbursed-to her, though the report does not say so. Then her attorney, after having conveyed the property to her, as special commissioner, and procured recognition of her title by the Foggins and their agreement to pay her rent as her tenants, found a purchaser of it, for her, in the person of his brother-in-law, Shriver, whose check in payment of the contract price, $310.00, payable to her attorney, has been produced and filed as evidence. The price thus paid, as well as the amount of her bid $210.00, was inadequate, but this fact as well as the relations of the parties, contractual and otherwise, are mere circumstances to be considered. The relations subsisting among them are not evidence of fraud. They merely call for more careful and scrutinous consideration of facts and circumstances tending to prove fraud, and give unusual probative force to such facts and circumstances. Farmers Transportation Co. v. Swaney, 48 W. Va. 272; Livey v. Winton, 30 W. Va. 554; Knight v. Capito, 23 W. Va. 639; Moore v. Tearney, 62 W. Va. 72, 82. Looking to the other circumstances, it is found that the purchaser at the judicial
The bill charging fraud was taken for confessed as to Shriver, be not having appeared to it or made any defense. His admission thus made, however, cannot affect tbe title of Furbee whose answer denied, for Shriver as well as himself, all charges of collusion, fraud and knowledge of facts sufficient to put them, or either of them, upon inquiry as to any equities against Marie E. Foggin and ber attorney. Subsequent declarations or admissions of a grantor in a conveyance assailed on tbe ground of fraud are generally inadmissible. Colston v. Miller, 55 W. Va. 490, 494. Nothing exceptional is perceived in this case, upon which it can be excluded from the operation of tbe general rule.
It is unnecessary to inquire whether knowledge on Shriver’s part, of the error for which the first sale was set aside would have precluded right in him, to purchase, for there is no proof of such knowledge. Having purchased after final decree in the cause, sale of the property and confirmation of the sale without notice of any fraud or any equity affecting
Barring invalidity for lack of jurisdiction in the court, he could pass such title to Furbee, even though the latter may have known Marie E. Foggin’s purchase was not made in good faith. King v. Porter, 69 W. Va. 80, 84; Curtis v. Lunn, 6 Munf. 42.
The error for which the decree of sale was reversed in part was not an act in excess of the court’s jurisdiction. Of course the sale should have been made in the county in which the property was, to the end that it might bring as nearly its true value as possible, and authorization of a sale thereof in another county was a palpable error. But jurisdiction is not, in all cases, limited to the county in which the court sits. In a proper manner and in proper cases, it can sell land in another county and nothing in the statute expressly inhibits the making of a sale of land situated in one county, in another county in which the court sits. Such a sale is not like that o? land situated beyond the territorial limits of the state, to which the court’s jurisdiction could not extend under any circumstances. Authorization of the making of the sale in Marion County was, therefore, a mere error in the exercise of jurisdiction. 16 R. C. L., p. 47; 24 Cyc. p. 23.
Nor was it beyond the power of the Intermediate Court of Marion County, in the divorce suit, to charge the alimony •and suit money allowed the plaintiff therein, upon the property of the defendant, situated in Wood County, as a lien, and decree a sale thereof to satisfy it. The jurisdiction is vested by sec. 11, ch. 64 of the Code, empowering the court on decreeing a divorce, to make “such further decree as it shall deem expedient concerning the estate and maintenance of the parties." Goff v. Goff, 60 W. Va. 9; Reynolds v. Reynolds, 68 W. Va. 15; Crowder v. Crowder, (Va.) 99 S. E. 746. If it were not so provided, it would often be within the power of a faithless husband wholly to defeat the wife’s right to alimony.
There is nothing in the contention that the Furbee title has
From these principles and conclusions, it results that tbe decree complained of must be reversed, tbe injunction dissolved and tbe bill and amended bill dismissed.
Reversed; Injunction dissolved; Bill dismissed.