74 W. Va. 93 | W. Va. | 1914
By deed dated February 8, 1908, Alvilda Grant, who was the owner of the fee, and her husband conveyed to John H. Swank and his wife, EL J. 0. Swank, a tract of 102 acres of land in Pleasants county. The deed recites a consideration of ‘ ‘ eighteen hundred dollars, cash in hand, the receipt whereof is here acknowledged, and other considerations hereinafter mentioned”. The only recitals indicative of “other considerations” are that the grantees “doth herein agree to care for and support the said Alvilda Grant and A. J. Grant with money and other necessaries for their support their natural life”. The deed contains no provision indicative of an intent to charge or burden the land, or to reserve a lien thereon to secure the faithful discharge of the obligations assumed by the grantees.
H. J. 0. Swank, by deed of June 2, 1909, purporting to pass the fee in the entire acreage, but in which John EL Swank did not join, granted the land to J. Warren Reed.
Elis wife having died, A. J. Grant instituted this suit, to charge the lands with the expenses paid by him incident to her illness and death, and those incurred in the maintenance and support of himself since her death, and to enforce the same by a sale under the decree of the court. Ele bases his
The Swanks and J. Warren Reed are named as defendants, but were not personally served with process. They were proceeded against by publication. Reed tendered an answer, which the court permitted him to file, and to which plaintiff replied generally. H. J. 0. Swank did not appear for any purpose. While one of the decrees entered in the cause recites the tender and filing of an answer by J. H. Swank and general replication thereto, no such answer appears in the record. If filed, we can not ascertain what it contains. Although in other respects Reed denies the averments of plaintiff’s bill, he does not controvert the statement contained therein as to the real consideration for the grant to the Swanks. Nor does he offer any proof to show that Mrs. Swank was, at the date of her deed, in fact divorced from her husband, warranting the failure to join him as grantor therein; nor does he directly aver that she had obtained a divorce. The only averment of the fact of divorce is'that at the date of her deed she was a single woman, “having been divorced from her former husband, John Swank”. The mere recital in the deed that the grantor was “usually called Oregon Swank, formerly wife of John H. Swank”, and in the certificate of acknowledgment that she. was ‘ ‘ a single -woman of lawful age”, do not negative the continuance of a relation existing only a year before.
Having found “that there was reserved a life estate (in the Grant deed) for the’ support of the grantors therein”, and “that the life estate so reserved in said deed is a charge
The death of J. Warren Eeed being noted of record, the court directed the cause to proceed against Cecil P. Reed, his only son and heir at law; and, confirming the findings of the master, decreed "that.the plaintiff do recover of and against the defendants herein the sum of $72.70 with interest from September 2, 1912, and the sum of $615, being the item for support and maintenance found due in favor of the plaintiff for the period of 123 weeks at the rate of $5 per week from September 23, 1908, until February 8, 1911, with interest” from the date last named; that said sums "be and they are declared to be a charge upon the real estate of the defend-' ants”; and directed a sale of the land to satisfy the sums so charged thereon.
Thereafter, but before sale, Cecil P. Reed appeared and tendered his petition, averring the death of J. Warren Reed intestate, that petitioner was his only child and heir at law, that during the previous proceedings in the cause and at the time of filing the petition he was a non-resident of this state, and that he had not therefore been served with process or appeared as a party in the cause. He copies and adopts the answer of his father theretofore filed, and prays to be admitted as such party. The petition, however, contains no prayer for a rehearing or review of the previous proceedings in the cause. But, having found no error, the court approved and confirmed the preceding decrees. Hence this appeal by the petitioner.
While courts of other jurisdictions have, in an apparent
Though Bates v. Swiger, 40 W. Va. 420, McClure v. Cook, 39 W. Va. 579, and Pownal v. Taylor, 10 Leigh 172, held agreements sufficient for that purpose, it was because in each case there was either an express charge created by the deed, or language importing an intention to reserve a lien on.the land or a right to charge it with the expense incident to the wants and necessities of the grantors. Such reservation clearly appears in the Bates case. In the McClure case, the deed provided for retention by the grantors of the possession and occupancy of the land “where they now reside so long as they live”, and that the grantee “is not to sell or dispose of any part or interest in the property without the consent and approval of” the grantors; thus manifesting an intention on their part to secure themselves against the improvidence of the grantee and his lack of fidelity to the obligations thereby imposed. The deed in the Pownal case contained the covenant by the grantee for the support of the grantors, and declared the land bound therefor “unto whose hands soever it may come”. Even there, the court held the provision a mere charge upon the land, enforceable in equity.
But the bill contains allegations which, when sustained by proof, as in effect they are, fully warrant a decree responsive to the prayer for general relief, though not in response to the prayer for specific relief prayed or granted. The court, therefore, had jurisdiction to grant relief under the general prayer. 5 Ene. Dig. 132. As said in Stewart v. Tennant, 52 W. Va. 559: “Where the allegations of a bill are sufficient to support a decree, and there is a prayer for general relief, and such decree is pronounced, it will stand, although not specifi-' eally prayed for in the bill”. So here, had the court upon the hearing granted relief in accordance with the general prayer, by decreeing cancellation of the deed to the Swanks to the exoneration of A. J. Grant’s curtesy interest in the 102 acres, it would have had the support of competent authority. Furbee v. Furbee, 49 W. Va. 191, 202; Shoe Co. v. Haught, 41 W. Va. 275; Goff v. Price, 42 W. Va. 384; Cum-berledge v. Cumberledge, 72 W. Va. 773, 79 S. E. 1010; Wilfong v. Johnson, 41 W. Va. 283; White v. Bailey, 65 W. Va. 573. The first three cases sustain the right to grant the prayer for general relief; the others, the right to cancel deeds for failure to comply with agreements for maintenance and support.
Does the deed to Eeed interpose an insurmountable barrier to the grant of the prayer for general relief by way of cancellation? To this inquiry the response is, not any greater barrier to the general than to the special relief actually granted. But, as that answer is not fully responsive, we must search the record for another, and, if one appears, determine its preventive effect if any.
The Grant deed vested in the Swanks title to the 102 acres,
The decree is erroneous also in another respect. There is a personal decree against all the defendants. Mrs. Swank, though named as a party, did not appear for any purpose. She was not a resident of the state. The bill so avers. The decree of July 12, 1912, by recitals, shows that the only process invoked to convene defendants was by order of publication. Upon such process alone without an appearance in person or by counsel, it was error to pronounce a personal decree.
AWthout expressing an opinion as to the validity of the deed by IT. J. 0. Swank to J. Warren Reed, its due execution not being in issue, or as to other questions discussed in argument, none of which are important in view of what has been said, our conclusion is to reverse the decrees of September 19, 1911, July 12,1912, January 29 and March 20,1913; and to remand the cause, with leave to plaintiff to amend the bill if so advised.
Reversed amd Remanded.