80 W. Va. 68 | W. Va. | 1917
George W. Harman and W. F. Harman have appealed from a decree pronounced on the 13th of March, 1916, in this cause, which is a bill of review filed by Hattie Harrison, now Mrs. Hattie Harrison Stone, one of the heirs at law of Henry Harrison, deceased, praying to have- reviewed and reversed, for errors apparent on the record, certain decrees made in the chancery cause of D. G. Sayers and G. W. Harman against the administrator and heirs at law of said Henry Harrison, deceased, by which a portion of the lands of which Henry Harrison died seized, then in the hands of certain ones of his heirs, were sold to satisfy a debt alleged by said Sayers and G. W. Harman to be due them from the estate. All of the decrees entered in that cause were set aside and annulled by the decree appealed from in so far as they affected the interest of this plaintiff, her interest being a one undivided sixth of the lands sold. This is the second appeal in the review proceedings. The first was taken by plaintiff from a decree entered on the 11th of February, 1913, sustaining a demurrer to her bill and a motion to dismiss her suit on the alleged ground that she had not brought it in time. That appeal resulted in a reversal of the decree and a remanding of the cause for further proceedings with leave to defendants to answer. 76 W. Va. 412. That decision was an adjudication that the averments of plaintiff’s bill showed errors in the decrees complained of, entitling her to have them reviewed and corrected, and that she was not barred by the statute of limitations. All the parties to the original suit are made parties to the bill of review.
Henry 'Harrison died intestate leaving twelve children as his only heirs at law. Six of them had aliened their interests in the inherited lands before the original suit was brought and the court decreed a salé of the remaining six-twelfths belonging to those heirs who had not disposed of their interests. The interest of plaintiff only is here involved. At the time the land was sold she was an infant of tender years, and she filed her bill of review within three years after she attained her majority. George W. Harman,
After the case was remanded, George W. Harman and W. P. Harman, who had purchased from him an interest in the land, answered averring matters as a defense which do not appear in the original record. On a bill of review, for errors apparent on the record, the court can look only to the pleadings and decrees entered in the original suit in order to ascertain whether there is error. Matters dehors the record are no defense to such a bill. Not even the depositions, if any had been filed in the original cause, could be considered, for that would be for the purpose ' of determining whether the chancellor had erred in his finding of a fact, not that he had erred as to a question of law, and an error of that kind is correctible only by appeal. 1 Barton’s Chan. Prac., (2nd ed.), 356; Wethered v. Elliott, 45 W. Va. 436; Dunfee v. Childs, 59 W. Va. 225; and Dunn’s Exrs. v. Renick, 40 W. Va. 349. In the ease last cited the law is laid down in point 9 of the syllabus as follows: “On a bill of review for error of law, that error must be collected from the pleadings and exhibits filed with the pleadings and orders and decrees, and must be made out on facts admitted in the pleadings, or stated in the decree as facts found. The depositions can not be looked to. An error of the court in reaching a wrong conclusion as to facts upon the evidence is not correctible by bill of review, but by appeal.” A bill of review for errors of record is analogous to an appeal, and the questions presented must be determined by the record, as if on appeal. Although not technically an appeal, it is in fact an application'to the court that committed the errors to review its record and correct them, and all questions are determinable by the record and it can not be aided by matters dehors. The former appeal adjudicated that plaintiff'had filed her bill within the time prescribed by law and that it presented a case entitling her to relief. Those questions can not be reopened. It may be that defendants are entitled to show, if they can, that plaintiff is estopped to claim the land against them, if she has done
It is contended by counsel for plaintiff that the averments in the original bill are not sufficient to show that plaintiffs therein had a right to subject the lands of Henry Harrison, deceased, to the payment of their claim, that they were not creditors and had no right to maintain the suit and, consequently, the decrees complained of in the bill of review are not simply erroneous, but absolutely void for want of jurisdiction, citing Hull v. Hull, 26 W. Va. 1, and Hoback v. Miller, 44 W. Va. 635. We do not accede to this proposition. Their bill averred that Harman, Harrison and Sayers were jointly liable for the breach of a joint covenant of warranty of title to land which they owned jointly and jointly conveyed to Henry Bowen and others, with covenants of general warranty of title, and that the land was thereafter recovered from their vendees by suit in the federal court, by the Burk-hart heirs, by virtue of a superior title, and vouched the record of that proceeding. The bill further averred that they, (D. G-. Sayers and G. W. Harman), settled that joint liability for the breach of warranty by executing to their said vendees their bond ‘ ‘ for said amount with security which was approved by the parties. ’ ’ The date and amount of the bond is also alleged. We think these averments showed a novation of the joint liability and, as between the vendees and Harrison’s estate, was a discharge of liability. Prior to that adjustment the claim was one for unliquidated damages. It was then determined and settled and a bond for a certain sum of money, with satisfactory security, was accepted in satisfac
But the error, justifying a reversal of the decrees, was committed by taking the averments of the bill pro confesso against Hattie Harrison who was then an infant. No proof was taken to establish those averments. Henry Harrison was a resident of Virginia at the time of his death and, at the time the original suit was brought, most of his heirs, including this plaintiff, resided in that state, and were proceeded against by order of publication. Although Hattie Harrison answered by guardian ad litem, that did not relieve plaintiffs
The error being one for which this court would reverse upon appeal, if one had been taken within time, and being an error appearing on the face of the record, the court that
As previously remarked Harman has conveyed two undivided thirds of the land which he purchased, but he is still the owner of the other third, or two-sixth, as to one-half of which, on reversal of the decrees in the original suit, by the decree appealed from, his title fails. That decree also sets aside the deed made by W. H. Stokes, special commissioner, only in so far as it purports to convey the title of Hattie Harrison. As there had been no partition of the land among the heirs, her one-sixth can be restored out of the two sixths now claimed by G. ~W. Harman. But the reversal of these decrees does not necessarily restore to Hattie Harrison her interest in the land unencumbered by plaintiffs’ debt. Her interest is still liable for its proportion of the debt, when properly proven. It is still an asset in her hands as an heir of Henry Harrison, deceased, liable for its ratable share of Sayers and Harman’s claim for contribution from the estate of their co-warrantor.
Although the decree appealed from settled the principles of the cause and is, therefore, appealable, the cause was continued on the docket for the determination of' matters that may yet properly arise. Those matters are averred in appellants’ answer to the crossbill, but can not now be considered. G. W. Harman is entitled to be reimbursed the money expended in perfecting and protecting appellee’s title. His redemption of th.e land from forfeiture enured to her benefit as well as his own, and he is entitled to an accounting.
The decree appealed from will be affirmed and the cause remanded for further proceedings.
Affirmed, and cause remanded.