Gilkeson v. Smith

5 W. Va. 128 | W. Va. | 1872

Maxwell, J.

The defendants demurred to the bill, and answered also. The demurrers were overruled, and a decree rendered for the plaintiffs. The appellants insist here that the demurrers were improperly overruled for several reasons. In the first pla'ce it is insisted that the plaintiffs, Avho claim as devisees of William Smith, do not make a case to entitle them to relief in a court of equity; but that if they are entitled to any relief it is in a court of law.

The case of Gaines and wife vs. Chew and others, 2 Howard, 619, is relied on by the appellees to sustain the bill in this case. The bill in the case of Gaines vs. Oliew was to set up a will alleged to have been executed in 1813, in place of a former will made by the same party in 1811, and charged that Relf and Chew had fraudulently suppressed and destroyed the will of 1818, and had fraudulently set up and proved the will of 1811; that they fraudulently took possession of the real and personal estate of the deceased, and disposed of portions of the real estate to the defendants named, who had notice of the fraud committed by Relf and Chew in setting up and proving the will of 1811. The court thought that as a bill might have been filed against each of the defendants separately, there was no good reason why they might not all be included in the same bill.

But the bill in the case under consideration is different. It contains no charge of fraud against any of the purchasers of the lots of ground mentioned. If the legal title of the lots of ground is in the devisees of Smith, as charged in the bilb and the defendants are in possession of them without any title, as charged in the bill, the remedy is in a court of law. The demurrer ought therefore to have been sustained and the bill dismissed as to the claim of the devisees of Smith; but as to the plaintiff Caldwell, he might, in the discretion of the court, be allowed to proceed with the bill to enforce his debt against the estate of Smith; but additional parties may be necessary.

The decree complained of will have to be reversed, with costs to the appellants, against the devisees of Smith, who are plaintiffs; the demurrers sustained and the cause remanded, with leave to the plaintiff Caldwell to proceed with the suit, if he wishes to do so, for the purpose of enforcing his debt against the estate of the said William Smith, deceased.

The other judges concurred.

Decree reversed.