42 W. Va. 384 | W. Va. | 1896
A. A. Goff filed her bill in equity, setting up that E. E. Mouse and B. L. Mouse had conveyed land to Israel Price, taking for the purchase money five notes, retaining a lien for them, and that the Mouses had assigued one of them to the plaintiff", and she prayed for the sale of the land to pay her note. She made Price and the two Mouses parties. The Mouses did not appear. Price filed an answer, alleging that the Mouses bad pretended to him that the title was good, but it was in fact subject to a large lien, affecting his title in favor of Good, and asking a recission of the deed from the Mouses to him, and a cancellation of the notes. A decree was entered canceling the deed and notes, and requiring the Mouses to pay Goff the amount of the note they had assigned to her on Price, by reason, of their liability as assignors; and then the Mouses filed a bill of review, asking the reversal of that decree, which, upon demurrer, was dismissed, and the Mouses appeal.
Could there be a decree in favor of Goff against the Mouses, upon the pleadings as they are, under the liability of the Mouses as assignors to Goff upon the cancellation of the deed and note ? Such decree could not rest on the bill. This bill prayed no such relief, but asked only a sale of the land to pay the note. Had it asked the sale, or, on failure of such relief, then alternative relief against the Mouses, such relief would, perhaps, be warranted. And, indeed, on the facts the bill does contain, if it contained a prayer for general relief, such decree might be entered, but not without such special or general prayer. Vance Shoe Co. v. Haught, 41 W. Va. 275 (23 S. E. 553). Next, take Price’s answer. The decree is sought to be based on it. But the demand of Goff" against the Mouses was not a right in favor of Price, to be enforced by him, by answer or otherwise as he was a stranger to the contract of assignment; and therefore, had he asked such a decree by a proper prayer in his answer, it ought not to have been granted. But this answer contains no such effectual special prayer. After stating Price’s defense, this answer prays the cancellation of the deed and notes, then adding, “and that, instead of plaintiff’s following respondent for the amount of the note, she should be
Another question is whether the matter of this answer is to be regarded in its nature as calling for a special reply under Code, c. 125, s. 35; for it is contended that, as such reply is wanting, the matter of the answer is taken for confessed against both plaintiff and the defendants Mouse, under section 36. This matter is that the Mouses represented falsely to Price that the title to the laud was good and free of incumbrance, whereas it was under a lieu. It struck me, on first impression, that this was mere matter of defense, availableby ordinary answer before this statute, even though such answer called for reeission of the contract or deed; for surely that matter could be used as a defense by ordinary answer, and the further relief of reeission would be a mere incident, and not necessarily make the answer one to require a reply. And a search has led me to the case of Cunningham v. Hedrick, 23 W. Va. 579, from which we may see that while such defense may be the subject of a cross bill, yet it could before the statute have been made by answer. And as, under that case, and Foutty v. Poar, 35 W. Va. 70 (12 S. E. 1096) and others, it is well settled that, where a defense could, under practice before that statute, be made by answer, no reply under the statute is necessary to an answer containing such matter, the allegations in Price’s answer of the matters w'hich are claimed to justify this decree could not be taken for confessed against the Mouses, even without a general replication, as a có-defendant can not put in a general replication, because the matter of an ordinary answer is not taken for true against him, and never -was evidence against him. It is only an answer containing new matter calling for affirmative relief that is taken
As to giving relief on an answer, the rule of practice as laid down everywhere, apart from statute provision, is that an answer can only pray for dismissal of the bill, and not for affirmative relief, and that, if any relief further is asked, it must be done by cross-bills. 1 Enc. Pl. & Prac. 871. But this rule has often been departed from in Virginia, as shown in Cunningham v. Hedrick, supra; Bart. Ch. Prac. 304; 4 Minor, Inst. 1380; Adkins v. Edwards, 83 Va. 300 (2 S. E. 435); Cralle v. Cralle, 79 Va. 182; Sayers v. Wall, 26 Gratt. 354; Tate v. Vance, 27 Gratt. 571; Scott v. Rowland, 82 Va. 484 (4 S. E. 595). The true rule generally prevalent being that, for a defendant to obtain affirmative relief beyond dismiss al of the bill, even against the plaintiff, he can only do so by cross-bill, there is stronger reason to say that one defendant can not have such relief against another defendant without such cross-bill; and I hardly think the Virginia cases, relaxing, in some instances, the general rule, would justify relief between defendants without cross-bill, unless it is proper as growing out of the pleading and proof between plaintiff and defendant. Thus the answer would justify the decree of cancellation as to Goff; but, even if Price could ask the decree against the Mouses, treating this answer as an ordinary answer, he could not ask that decree by such answer, but only by cross-bill under ordinary chancery practice, or a proper answer under the statute, and it is not, as above shown, good under the statute.
Upon this answer another question presents itself. Under section 35, chapter 125, C.ode, an answer containing such matter as calls for affirmative relief in favor of the party filing it is made the basis of relief, not only as between that defendant and the plaintiff, but as between that defendant and other defendants. Prior to this provision, relief could be decreed between co-defendants only when it was justified or called for by the pleading and proof between the plain
In Fletcher v. Holmes, 25 Ind. 458, a statute authorized the court to determine all rights between the parties, and a party filed claim of lien as older than that of another lienor; and the court said, as the act did not prescribe a mode of procedure, and did not call for process, the rules of practice in courts of chancery ought to prevail, and as, under chancery practice, -when a defendant sought relief against a co-defendant as to matters not apparent on the face of the original bill, he must file a cross-bill making parties such defendants as are necessary to the relief sought and process was necessary to bring them in, the decree giving priority of lien to the prejudice of a co-defendant without process was violative of the fundamental principle that a party shall not be bound by adversary proceedings without notice. In Walker v. Byers, 14 Ark. 246, the court said, and held, that a defendant can, in geueral, by his answer, pray only for dismissal of the bill; that “if he has any relief to pray for, he must do so by a bill of his own, or by answer in the nature of a cross-bill, under the statute, and if he seeks such relief against a co-defendant by this statutory means, he must, after answering the original bill, proceed to charge his co-defendant as he would by a regular cross-bill, and take steps to get his answer, because, otherwise, although it might be in the nature of a cross-bill as against the complainant, it would not be as against his co-defendant.” No process against a complainant on a cross-bill is required in Arkansas. In Joyce v. Whitney, 57 Ind. 550, it was held that the complaint of one defendant against another, to establish his suretyship for the former and place first liability on him, is a proceeding original, though filed in a pending action, which can not be tried upon the summons issued by the plaintiff. This was not on a statute allowing an answer to operate as a cross-bill,
It will not do to say that, being in court for one purpose» the defendant is there for all possible purposes in the suit, for that would dispense with process to answer the new matter of an amended or supplemental bill; and it seems to me that it would be more plausible to dispense with process on an amended or supplemental bill than with process to a co-defendant upon an answer claiming relief against him, as the plaintiff has once summoned him to answer his cause, whereas the co-defendant assailing him has not. That late invaluable work, Encyclopedia of Pleading & Practice (volume 5, p. 628) speaking of answers filed under statutes like ours, having the function of cross-bills, says: “The rules governing answers filed as cross-bills, it is"apprehended, are practically the same as those governing ordinary cross-bills” — and, proceeding to discuss the subject of cross-bills, says (what is to the point here): “In the absence of statute providing otherwise, service of process on the defendants to a cross-bill, though parties to the original bill, and in court for all the purposes thereof, is necessary
I have said this, much touching practice under this statute, in view of its daily use and importance, and as I am under the impression that this holding as to the necessity of process upon such an answer may be counter to the prevalent opinion in the legal profession and the practice in the courts, though I am not certainly informed as to what is the practice in the various circuits. As connected with this subject, it may not be amiss to say that, as an answer containing new matter calling for affirmative relief is
A question is made that no lien exists such as is set up as an incumbrance in Price’s answer. The land conveyed by the Mouses to Price was fifty acres. The Mouses had acquired it from Good, they conveyingto Good, in exchange for it, a tract of one hundred and sixteen and three-fourth acres, which had been conveyed to one of the Mouses by Stalnaker and wife. When Good conveyed to the Mouses the fifty acres, he recited that the consideration was the conveyance to him of one hundred and sixteen and three-fourth acres, conveyed by Stalnaker to E. E. Mouse on March 29, 1892, and he retained on the fifty acres a lien “to secure any payment due said Stalnaker on said land.” And in Stalnaker’s deed to the Mouses for the fifty acres, he fully described four deferred payments of purchase money, and recited that “the said Enoch E. Mouse has this day executed his four several notes for the said sums of money,
The court erred in dismissing the bill of review. As the appeal asks reversal of the decree dismissing the bill of review and the other decree too, we do not send the bill of review back; but, as it is founded on error of law [Gillispie v. Allen, 37 W. Va. 675 (17 S. E. 184)] we reverse the decree dismissing it, and so much of the decree it sought to reverse (that part decreeing in favor of Goff against the