7 W. Va. 152 | W. Va. | 1874
This cause was commenced in the circuit court of the county of Monroe in October, 1866, and the bill therein was filed at November rules of that year. The bill alleges thal on the 3d day of March, 1859, Thomas Johnson and William Hinchman, Jr., purchased of Douglas B. Layne three tracts of land, two of them called islands, one of which Layne purchased of General A. W. G. Davis, and the other of Col. John Alderson, and both together containing thirty-five acres; the third tract containing four hundred and fourteen acres, more or less,' which Layne purchased from Doctor Taylor, of Rockbridge county, and that Layne was to make them a good title by the first of December thereafter, but he was only to make such title to the islands as was vested in him; that afterwards, on the 23d day of November, 1859, Layne assigned a copy of the title bond of Davis and Alderson to Johnson and Hinchman, Jr. The copy of the title bond, with the assignment thereon by Layne, is filed with the bill, marked “No. 2That a deed of conveyance was made by Colonel John Alderson to Johnson and Hinch-man for the lot which he was to convey, and is of record
It is alleged in the bill that the widow and all the legal heirs of Layne, deceaséd, reside out of this State.
At January rules, 1867, the bill was ordered to be taken for confessed as to adult defendants, and the cause set down for hearing by the complainant’s counsel.
On the 25th day of April, 1867, a decree was made in the cause, by the court, before any depositions were taken or evidence filed,, other than the exhibits, so far as they were evidence, and the cause was referred to a master commissioner to take an account. In this decree, among other things, it is recited that “Sarah Miller, the wife of A. A. Miller, having departed this life leaving the following children and heirs at law, to-wit: James Miller, Elizabeth B. Miller, and George Miller, upon whose motion this cause is revived in their name, and: more than two months having elapsed since the filing of the plaintiff’s bill, and service of the subpoena upon the defendants Lewis Ballard, sheriff of this county, and as such administrator of Douglas B. Layne, deceased, Thomas G. Alderson, Sarah Davis, and Charles L. Davis, who failing to appear and answer the bill, the same is taken for confessed as to them, and the order of publication taken at rules against the defendants, Ann B. Layne, John J. Paxton and his wife, Orville T. Rodgers and his wife, William B. Sprowl and his wife, J. Emma Layne and Marietta Layne, and they still failing to answer, the cause is set down for hearing as to them, upon such evidence as the plaintiffs offered, and the cause coming on to be heard upon the bill, answer of the infant defendants, by their guardian ad litem, exhibits and arguments of counsel: Upon consideration whereof, &c.”
Afterwards, on the 8th of July, 1867, the court made this decree in the cause to-wit: “On the petition of Lewis Ballard, sheriff of Monroe county, and as such
On the 19th of September, 1867, the widow and adult heirs of Layne, deceased, with leave of the court, filed their answer to the bill, to which the plaintiffs replied generally. This answer admits the sale of the lands on the 3d day of March, 1859, as charged in the bill, and that respondents suppose the six thousand dollars was paid as charged in the bill, but they have no personal knowledge of the fact. These respondents also say that “they suppose and believe that Lewis P. Holloway, who was appointed a committee for their ancestor, L. B. Layne, made the compromise as is alleged in the bill.” But they deny that Holloway had the right or authority, to make the compromise made by him with Johnson and Hinchman, and insist that to make such a compromise was not within the scope and authority of the office of Holloway as such committee, and that in making it he transcended his authority, and that the alleged compromise is unequal and unjust, and ought not to be enforced by a court of conscience. They deny that the assessment valuation, made by Swope and Hines, filed by plaintiffs with their bill, is binding on them, it being ex parte. And they insist that Johnson and Hinchman having elected to make a contract of purchase “from an imbecile and weak-minded man, they should be compelled to abide by the same, and that the contract of. sale, as originally made, should be confirmed and executed; but that if Johnson and Hinchman persist in asserting that Layne was'a lunatic or weak and imbecile when the contract was made, and the contract of compromise should be confirmed, that, then, they should not-
On the 30th day of November, 1867, the court made a decree in this cause, as follows, to-wit: “It appearing to the court that in order to a proper decision of this cause, that the personal representative of Lewis P. Holloway, deceased, late committee of Douglas B. Layne, deceased, and also the securities of said Holloway, as such committee, should be represented in this suit, it is adjudged and decreed, that the plaintiffs amend their bill in this particular, so as to ascertain and make all the above named persons party defendants to this suit.”
On the 29th day of April, 1868, the court, by decree, without deciding any questions presented in the cause, referred the.cause to master commissioner, Alfred Phillips, to take an account, as therein specified.
On the 28th day of November, 1868, Lewis Ballard, sheriff, administrator, &c., appeared in court and filed a demurrer to the bill and the plaintiffs joined therein! and Ballard also filed his answer to which the plaintiffs replied generally. Ballard, in his answer, says that he never knew Douglas B. Layne, and cannot say whether he was sane or not; that he never knew Lewis P. Holloway, and he has no knowledge that Holloway was the committee of Layne, nor does he know that Layne was declared a lunatic; that he knows but little about the facts of the case, except what the papers in the cause show; that he believes it would be to the interest of the estate, which he represents to have the sale by Layne to Hinchman and Johnson confirmed, and that he thinks the equity of the case requires such decree.
On the 2nd day of December, 1868, the court made a decree reciting, that on that day the cause again came on to be heard upon the papers formerly read, and the report of master commissioner Alfred Phillips, made
On the 18th day of May, 1869, the court, on motion of the administrator, widow and heirs at law of Layne, deceased, by an order made in the cause, granted to them leave to file a cross-bill within thirty days, against the plaintiffs, for the purpose of enforcing any rights of the defendants, if any they have, against the plaintiff’s.
Afterwards, on the 5th day of June, 1869, a bill, called in the record a cross-bill, was filed in the clerk’s office and process issued thereon, but said bill’is in fact more in the nature of an original than a cross-bill. The plaintiffs, in the cross-bill, set up the contract of sale of the 3rd of March, 1859, and ask that the lands be sold to pay the purchase money, &c.
The infant defendants to this cross-bill answered the same, by guardian ad litem, on the 16th of September, 1869.
At the same time the adult defendants to the cross-bill filed their joint answer thereto. In this answer it is insisted “that the time for filing a cross-bill had transpired, there being a decree in the cause which it was not in the power of the court to vacate or disannul, and which settled the principles upon which a final decree should
To these answers to the cross-bill a general replication was filed.
Afterwards, on the 20th day of May, 1870, the cause was again heard upon the papers formerly read, the cross-bill, answers thereto, replication, exhibits and arguments of counsel, report of commissioner Phillips and excep-. tions thereto, and the court, by its decree, rescinded, set aside and annulled the contract of sale of the 3rd of March, 1859, and determined and decided that the contract of compromise dated the 29th of March, 1861, made by Holloway, committee, and Hinehman and Johnson, and filed as “exhibit 4,” should be carried into effect, and be duly executed. And the court, with the view of carrying into effect the last named contract, appointed M. J. Hester a special commissioner for the purpose, to complete the account directed to be taken by the decree of April, 1867, and referred the report of commissioner Phillips, with the exceptions thereto, to the special commissioner, with authority to adopt or modify the same; as he should think proper, from such evidence aa was;
On the 8th day of August, 1871, the cause came on to be further heard on the papers formerly read, and report -of M. J. Kester, special commissioner, with the exceptions thereto, and the exceptions to depositions, and was argued by counsel; Upon consideration whereof the -court adopted the second statement of this report, whereby it appears that the estate of U. B. Layne, deceased, is indebted to the plaintiffs in the sum of $8,540.11, as of the 18th of March, 1871, and decreed that the plaintiffs recover against the estate of Layne, deceased, the .sum of $8,540.11, with interest thereon from the 18th day of March, 1871, until paid, and the costs of suit; .and overruled all the exceptions to the report inconsistent with said second statement. The court further de•creed that unless said sum, with interest and costs, were paid to the plaintiffs within thirty days from the date of this decree, that Samuel Price and others, who were appointed commissioners for the purpose, should proceed to sell the tract of land in the bill and proceedings mentioned, on Greenbrier river, after giving notice, &c.
After this decree was entered, the defendants to the •original bill in the court below, appealed in the manner prescribed by law, and it is now the duty of this Court to determine whether there is error in the proceedings •of the circuit court, or whether those proceedings shall be affirmed as being right, just and equitable.
I have given as full a statement of the proceedings of •the circuit court in this cause as is necessary to present the material questions to be determined here, and, in my judgment, a statement less full would fail to present those questions in such manner as to make the case, and the points determined by this Court, clearly understood.
It must be observed that the original bill and the record fail to disclose when the committee Holloway, died,
The plaintiffs filed with their bill a copy of the order of the county court of Alleghany county, Virginia, made at the April term, 1860, thereof, appointing L. P. Holloway, committee to take charge of the estate of Douglas B. Layne. At the end of the copy is appended these words, to-wit: “A true transcript from the records of the said court. Teste : Joseph A. Fudge, Clerk.” The copy is headed “Alleghany county court, April Term, 1860.” This is the only record evidence found in. the cause proving or tending to prove, that Holloway was appointed committee of Layne, deceased.
First. It is objected, and insisted by appellant’s counsel that this copy should not have been read as evidence by the circuit court and cannot be in this Court, because it is not properly certified. It appears by the record that the reading of the copy as evidence, was excepted to in the circuit court upon the ground, that, “it is not properly certified,” and also upon the ground that “it is not competent evidence.” The order is, in the usual form, sufficiently full, and if it is sufficiently certified to, enti
Second. It is also objected by the appellants, that all the orders, decrees and proceedings of the circuit court made in the cause, after the 2nd day of December, 1868, are erroneous, and should be reversed and set aside, because the decree made by the court, at that date, adjudged, that unless the plaintiffs, within thirty days from the date of the decree, amended their bill, and made the personal representative of Holloway, a party defendant to the suit', that then the plaintiffs’ bill should stand dismissed out of this court, with costs to the defendants, but without prejudice to any other suit,” &c.; and as the plaintiffs failed to so amend their bill, within the thirty days, the cause, by operation of the decree,' stood dismissed out of court.
Third. It is objected by appellants, that the court erred in not overruling the demurrer filed to the plaintiffs bill before proceeding to decree. It must be considered that the court, in making the decree of May 20, 1870, did consider the sufficiency of the bill and substantially overrule the demurrer. This objection must therefore be overruled.
Fourth. It is also objected, by the appellants, that the decrees of the circuit court of the 20th of May, 1870, and of the 8th of August, 1871, are erroneous, and should be reversed, because, under the circumstances, the alleged contract of compromise and recission set up in the bill, .and prayed to be enforced against the personal represen-"
The alleged contract of recission and compromise is in these words, viz : “This article of agreement, made and entered into this 29th day of March, 1861, between Lewis P. Holloway, committee of D. B. Layne, of the one part, and William Hinchman, Jr., and Thomas Johnson, of the other part, witnesseth : That the said Lewis P. Holloway pledges himself to come to the house of the said Thomas Johnson on the 18th day of April, 1861, for the purpose of consummating a compromise of a suit in chancery instituted in the circuit court of Monroe county, in which said Holloway is plaintiff and the said Hinchman and Johnson are defendants, upon the following terms here agreed upon, to-wit: That the said
Witness the following signatures and seals:
(Signed.) Lewis P. Holloway, Com., (Seal.)
Thomas JohnboN, . (Seal.)
William HiNchman. (Seal.)”
The fiftieth section of chapter eighty-five, of the Code of Virginia of 1860, provides that, “If a person be found to be insane, by justices before whom he may be examined, or in a court in which he may be charged with crime, as aforesaid, the court of the county or corporation, of which'he is an inhabitant, shall appoint a committee of him.” The fifty-second section of same chapter provides, that, “If a person residing in this state, not so found, be suspected to be insane, the court
The first section of chapter thirty-six of the Code of 1860 provides, that where an infant, insane person or married woman is entitled to or bound to renew any lease, any person on his or her behalf, or any person interested, may apply, by petition or motion, in any summary way, to the circuit court of the county or corporation in which the lands leased, or some part thereof, may lie, and by the order of the said court any person appointed by it, may, from time to time, surrender, or accept a surrender, of such lease, or take or make a new lease of the same premises, for such term and with such provisions as the court shall direct. Such reasonable sums as may be incurred to renew any such lease shall, with interest thereon, be paid out of the profits of the leasehold premises and be a charge thereon till such payment.
And the second section of the same chapter provides, that if the guardian of any minor, or the committee of any insane person, think that the interest of the ward or insane person will be promoted by a sale of his estate, or estate in which he is interested with other infants or adults such guardian or committee, whether he or the minor, insane person or any of the persons interested reside in this State or not, may for the purpose of obtaining such
Each and all these provisions of the Code of 1860 were in force in "Virginia at the time Holloway was appointed committee, and continued in force therein until the formation of this State, and from thence till the adop- ■ tion of the Code of 1868 of this State, now in force ; and were substantially, if not literally, re-enacted and contained in the Code of 1868, except the last sentence of section two of chapter of one hundred and twenty-eight, and are still in force.
In the laws as contained in the Code of 1860, which I have quoted, and the ancient established rules governing courts of equity, is to be found, and from them is deduced, the power and authority of the committee Holloway to make the alleged contract of recision and compromise set up in this case, if such power and authority exists. From the laws cited by me, we see that although the committee is required to take possession of the estate of the lunatic, and may sue and be sued in respect thereto, still if the personal estate of the insane person is not sufficient for the discharge of his debts, or if the personal estate or residue thereof after payment of the debts, and the rents and profits of his real estate are insufficient for his maintenance and that of his family, the committee is not authorized to mortgage, lease or rent the realty of the insane person to raise money for the purpose. But the court, by which he was appointed, upon the petition of the committee, upon a proper case being made thereon, after all parties interested are heard, is empowered to make an order to direct the realty, or so much thereof as may be necessary for the purpose, to be mortgaged,
The committee is not authorized to change the nature <of the estate of an insane person without the direction or approval of a court having jurisdiction of the subject,
Eonblanque in his work on Equity says, “the committee of a non compos is but a bailee, and accountable to his representatives.” Side page 57. In ex parte Marchioness of Annandale, 1 Ambler 81, Lord Hardwicke states it to be “a rule never departed from, not to vary or change, the property of a lunatic, so as to effect any alteration as to the succession to itbut in ex parte Grimstone, 1 Ambler 706, Lord Apsley, C., decreed incumbran-ces paid off in the lifetime of the lunatic, out of savings of the estate, to be assigned to attend the inheritance, and not in trust for the next of kin; he considering the ruling principle in the management of a lunatic’s estate, to bé the doing of that which is most beneficial to the lunatic.' “In the management of a lunatic’s estate, the interest of the lunatic is more regarded than the contingent interest of those who may be entitled to the succession. And the court, if it be for the interest of the lunatic, will direct timber, on the land of the lunatic, to be sold. So the real estate may be converted into • personal, or personal into real, if for the benefit of the lunatic.” 3 Johns. Ch.(N. Y.)347. “If the committee misconducts himself or becomes bankrupt, he will be removed.” 2 Mad. Ch. 745. “The committee of a lunatic’s estate is not authorized to purchase real estate with savings,. and alter the nature of -the propertyj and land so purchased will be considered as personal estate.” Same author 747. “Money may be laid out in improvements, if no ’ good reason be shown why it should not. But in these cases-the committee acts at-his-; peril, unless'.he has pre
It is competent for the committee in a proper case to-institute suit to set aside acts done by the insane person during his lunacy, and prior to the appointment of the committee, especially where such acts are prejudicial,, and not beneficial to the interest of the lunatic. But it is for the court to say whether the act shall or ought to' be set aside under the circumstances of the case. Chief Justice Story, in the first volume of his Eq. Juris., section 228, says: “But courts of equity deal with the subject upon the most enlightened principles; and watch with the most jealous care any attempt to deal with persons non compotes mentis. Wherever, from the nature of the transaction, there is not evidence of entire good faith (uberrimce fidei) or the contract or other act, is not seen to be j ust in itself, or for the benefit of these persons, courts of equity will set it aside, or make it subservient to their just rights and interests. And so,, if a purchase is made in good faith, without any knowledge of the incapacity, and no advantage has been taken of the party, courts of equity will not interfere to set aside the contract, if injustice will thereby be done to-the other side, and the parties cannot be placed in statu quo or in the state in which they were before the purchase.”
It cannot be held with any assurance or confidence-of safety to the unfortunate insane, their families or estates, that the fact, that a committee may sue or be sued touching the real estate of the insane person, gives hinj such complete control, and arbitrary discretion in the disposition of the subject of the suit, as to authorize him, at his pleasure, to make a contract of compromise with the same binding arid conclusive effect, against .the
The defendants at some stage of the case, took the depositions of several witnesses to prove that Layne was insane on the 3rd of March, 1859, and before and after; but none of these witnesses were the attending physician of Layne, if he had any, or experts in such cases, and they simply give their opinions, generally, as to the state of his mind without stating the facts, circumstances or anything upon which their opinions are based, and none of them seem to have been present when the contract was made, or testify that they saw him on that day. Such evidence, while perhaps it may be read and considered, is entitled to but little weight or force, in and of itself, and is, I think, alone, generally insufficient to authorize a court to declare or decide, any person to be insane, especially where it is otherwise shown, by the circumstances and other competent evidence. “ But the mere fact that a person is of weak understanding, if there be no fraud or surprise, is not an adequate cause of relief.” Adam’s Equity 432 and 433. “Mere weakness of mind, short of actual idiocy or insanity, whether produced by old age or other causes, is not enough to call for the in
If Holloway, as committee, could make a contract binding upon the insane person, his estate, personal representative or heirs of the character I have been considering, and a court of equity would enforce it, still I do not think the alleged contract is a final contract, such as courts of equity require to entitle the party claiming the benefit thereof to a decree of specific performance. Lewis P. Holloway pledges himself to come to the house of the said Thomas Johnson on the 18th day of April, 1861, lor the purpose of consummating a compromise of a suit, &c., upon the following terms here agreed upon, to-wit, &c.: The word ‘consummating/ as here used must be construed to mean ‘completing’ the times of payment of the money Johnson and Hinchman had paid Echols is not fixed, though it is evident it was not contemplátéd that it should all be paid in hand. The amount of the rent to be paid is not specified, except the rent for that season. Holloway is to pay Johnson and Hinchman “for the improvements they have made upon said land, and if they connot agree as to the value of said imrove-ments, they are to choose-disinterested persons to value the same.” The number of persons to be chosen, or who, in case of disagreement, are not specified. The ■contract of sale of 3d of March, 1859, is not mentioned, or the description of writing Hinchman and Johnson
The court will refuse to act, even when it only rests reasonably doubtful whether what passed was only treaty, let the progress towards the confines of agreement be more or less. Per. Lord Eldon in Huddleston v. Briscoe, 11 Ves. Ch. (Jr.) 592; Fry on Spec. Per. Con., 232.
For these reasons, I think said decrees are also erroneous, and should be reversed.
Sixth. The appellees insist that the court erred in allowing Ballard, administrator, and the widow and heirs of Layne, deceased, to file their answers, and also the cross-bill, after the decree of 25th of April, 1867 ; and also erred in setting aside that decree on the 8th of July, 1867.
The decree is interlocutory and might be opened or set aside by the court on petition for a rehearing. Laidley v. Merrifield, 7 Leigh, 346. Cocke’s Adm’r v. Gilpin, 1 Rob., 20. In the case last cited judge Baldwin, on page 31, says: “Where can be the mischief or inconvenience, whenever the judicial action of the court itself,, in the cause, has not been perfected, of permitting it to control the ministration of its servants, and even to turn back and correct its own errors .of omission and commission, instead of driving the parties into an appellate forum ?” The fifty-third section of chapter one hundred and twenty-five of the Code of this State is in these words :
Several other points were made in the case by the appellants, but under the views expressed upon the merits of the case, and the disposition which must be made of it, those points are immaterial, and are not necessary to be now considered and determined.
For these reasons the decrees rendered in this cause, by the circuit court of the county of Monroe, on the 20th day of May, 1870, and the 8th day of August, 1870, must be reversed and annulled and the appellants recover against the appellees their costs in this Court expended, And this Court proceeding to render such decree as the court below should have rendered, it is adjudged, ordered and decreed that the original bill filed in the cause be dismissed and that the defendants in said original cause recover against the plaintiffs therein their costs about their defence in the court below therein expended. But this dismissal of said original bill is without prejudice to any of the rights of the defendants therein, or any of them under the said contract of sale by Douglas B. Layne to Thomas Johnson and William Hinchman, Jr., of the lands in the original bill mentioned, and without prejudice to any rights set up in the said cross-bill and the right to prosecute the same furth-
Decrees ON OrigiNAl Bill Reversed AND Cross-Bill Cause Remauded for Further Proceedings.