12 W. Va. 70 | W. Va. | 1877
delivered the opinion of the Court:
The first point which arises on this record is : should this appeal be dismissed because impío vidently awarded? If the decree of February 17, 1847, was a final decree, then this appeal, being taken more than five years after its rendition, ought to be dismissed as improvidently awarded, otherwise it should not. The decisions in Virginia on the question, what decree is final and what interlocutory, are very numerous, and perhaps not altogether consistent; most of them are referred to in the case of Manion v. Fahy, reported in 11 W. Va. Perhaps the distinctions between decrees in this respect is as well stated by Judge Carr, in the case of Thornton v. Fitzhugh, 4 Leigh 209, as anywhere else. His language is.: “The cases seem to me'to take the true and clear distinction : where anything is reserved by the court for future adjudication to settle the matters in controversy, the decree is interlocutory; but when upo n the
Applying these principles, the decree of 1847 is not final. The bill was filed by parties, who claimed to be tenants in common with the defendants, and asked among other things for a partition of the land and for general relief. If the case stated in the bill was established, the complainants had not only a right to a partition of the land, but also to an account of the rents and profits received by the defendant in possession. No decree therefore should be regarded as final, till these objects sought by the bill have been finally acted upon by the court, or abandoned by the parties. And the decree of 1847, while it determined that the allegations in the bill of the plaintiffs had been proven, and that they were entitled to this relief, did not give the relief, but directed certain officers of the court to do certain acts and report to the court, that it might give such relief,
The appeal from the last and final decree therefore necessarily opens for consideration all prior orders and decrees, upon which such final decree is based. Camden v. Haymond, 9 W. Va.; Atkinson v. Munks, 1 Cow. 702; Teal v. Woodsworth, 3 Paige 470.
There is another preliminary question raised in this case necessary to be disposed of before examining into the merits of the cause, that is : did the court err in rendering any decision in this cause on the 5th of October 1869, after the suggestion of the death of the complainants by the defendants. When this suggestion was made, the cause had been pending upwards of thirty-six years. As a reason for proceeding to render a decree in favor of the plaintiffs, after such suggestion of their death, the court below in its decree says: “ that the court is of opinion that the proof is not sufficient to -prove the death of complainants; and the same comes too late, and is made for the purposes of delay, it being made at the lime the papers were offered to the court for final decree.” The original practice, in case of the death of the plaintiff in a chancery cause, was for his representatives
But a still further reason is urged why this cause should have been dismissed without its merits being considered. Bailey in his answer alleges, that he is informed and believes that the complainants a few days before the commencement of this suit, by a deed, while he was in the adversary possession of the.land, conveyed it to John J. Jackson, their attorney, for $300.00, of which $200.00 was to be paid on a contingency; and that John J. Jackson was prosecuting this suit at his own costs and for his own benefit in the name of the complainants; and the complainants having no interest in said land, when this suit was brought, and said Jackson being guilty of maintenance and champerty, the suit ought to be dismissed. This answer was replied to generally; and this being affirmative matter, ought to have been proven, to have the effect claimed. It is proven in the cause, that John J. Jackson did
Having disposed of all the preliminary questions, I will now consider the case on its merits. The complainants, John Gillespie and Esther Gillespie, for the sum of $80.00, on July 8, 1803, by a deed or contract under seal of that date, sold their interest in the real and personal estate of the father of the female complainant,
These positions I do not understand to be controverted by the counsel on either side in this cause.
It is,clear too, that the institution of this suit, in which the complainants ask the court to declare this deed or contract void, is an avoidance of it, if when the suit was instituted, John Gillespie had a right to avoid this contract, which he certainly had, though twenty-seven years had elapsed since he attained his full age, unless he had by some positive act affirmed this contract since he attained his majority, or unless the mere lapse of time and surrounding circumstances amounted, in itself by operation of law to an affirmance of the contract. The real question in controversy is, whether the failure of John Gillespie for a period of twenty-seven years, after he attained his full age, to do any act disaffirming this contract, or indicating that he was dissatisfied with it, under the circumstánces,
A distinction has, as we shall presently see, been taken
Decree Affirmed.