43 W. Va. 456 | W. Va. | 1897
Augustus Pack, of Boone county, died in November, 1884, seised of various tracts of land in Boone, Raleigh, and other counties of this State, in which his widow, Frances Pack, who has since intermarried with Leftwich Jarrell, was entitled to dower. Pack was largely involved in debt. Prior to his death, J. P. Underwood’s executor instituted a suit in Raleigh County circuit court to subject tliedands of said Pack in said county to the payment of the liens thereon; said lands consisting of two tracts of live thousand, six hundred and six, and twenty-four acres, respectively. Maid lands were sold under decree in said cause prior to Pack’s death, at which sale O. I). French, together with J. M. French and Gf. W. Easley, became the purchasers. The widow, Frances Pack, by J. M.. French, her counsel, filed her bill in Boone county, asking that her dower in all the lands of said Pack be assigned to her in the home lands in Boone County. ¡She afterwards filed a petition in said Raleigh County suit, asking that her dower be set apart in said Raleigh lands. On the 27th day of October, 1885, the Raleigh suit came on again to be further heard, when J. M. French, one of the purchasers of the Raleigh lands, ap
J. N. Valley filed his answer to the bill, admitting 1ns in
At. the June rules, 1898, plaintiff filed her amended and supplemental bill, alleging, in addition to the allegations of the original bill, that she had never been assigned, or in any way received, dower in the Raleigh county lands; that J. M. French had been her husband’s attorney for a considerable time prior to his death, and was retained by him as his legal adviser, and acted in nearly if not all of the numerous suits brought by her husband, as well as acted for him in suits brought against him; that being cognizant of all the facts, and of the intimate acquaintance of the said defendant James M. French with all the business of her late husband, even to its minutest details, 'and relying upon his integrity and ability as an attorney at law, she employed him to take whatever steps were necessary to protect her interests and recover her rights in the estate left by her late husband; that a suit was instituted in Boone county and decree had therein as alleged in the original bill; that a petition was also filed in the suit of Underwood’s executor against Pack and others in the circuit court of Raleigh county, asking that her dower be assigned in the Raleigh county lands; that defendant French was employed by her to file said petition and bring said suit in Boone county, and she relied upon him, as attorney, to attend to her interests, and, while he was so acting and she was so relying upon him, he became the purchaser of an interest in the lands sold in the Underwood case ; that that fact was not known to her for a long time, — not until, in fact, a short time before the filing of her original bill; that he became interested in the purchase of said lands on the 27th day of April, 1885, and on the 27th day of October, 1885, he caused the decree of dismissal of her petition filed in the suit to be entered, which was done without her knowledge or consent; that she was informed that O. 13. French and Easley were joint
Defendant James M. French filed his demurrer .and answer to the amended bill, referring to his answer to the original bill, and making it apart of this answer, so far as it is applicable and responsive to the allegations contained in said amended bill. And in answer to the additional and supplemental matters, if any there be set up in plain'tiff’s amended bill, defendant says that it may be true, as is charged therein, that plaintiff has never received ra-been assigned dower in the Raleigh county lands, in the original and amended bills described, but avers that it is for the reason that she is not entitled now, and never was entitled, to (lower in-the Raleigh county lands, and, even if she ever was so entitled, she waived and lost her right thereto by reason of claiming and taking her dower in the Boone county lands, and by filing her petition in the chancery suit of Underwood in Raleigh county, and then dismissing her petition therein. Denying that.he had filed said petition for her, but that it was filed by William E. Chilton, her attorney, and dismissed by her direction. Admitting that he had been employed in matters of Back’s litigation in Boone and Raleigh counties, but not in all
O. D. French filed an answer denying the allegations of the bill, and claiming that plaintiff was estopped from claiming dower in • this land because her former petition had been dismissed at her own instance, by her direction and authority, and that after the dismissal and abandonment of her claim she stood by for years, saw the sale of the land confirmed to the defendants, the purchase money paid into court, and the same disbursed to the creditors of Augustus Back, without protest on her part, which works an estoppel.
Appellants’ first assignment of error is that “plaintiff, having filed her petition in the Underwood suit in Raleigh circuit court, praying for assignment of her dower in lauds sold therein for the benefit of lien creditors, and after-wards dismissing her said petition, admitting that she had theretofore filed her bill in the circuit court of Boone county (where her husband had other lands) for the purpose of having dower laid off to her in all the lands belonging to
The. second assignment of error, as stated, is that, “in the suit brought by the plaintiff in Boone county for dower as aforesaid, dower was assigned to the plaintiff in all the lands of her late husband, including the Raleigh
The third assignment' is that “the plaintilf represented to the petitioner, O. I). French, after he had purchased the said Raleigh county lands, but before he paid the purchase money therefor, that she had filed her bill in Boone county for dower in all of her late husband’s lands, and that she did not intend to claim dower in the Raleigh lands purchased by him; thus inducing him to pay all the purchase money for said lands, and permitting it to be distributed to said Back’s creditors. Hhe is estopped from setting up dower in said lands now.” The circumstances of the case, the interest of the co-purchasers (the said U. D. French being a large lien creditor of Back, to the amount of four thousand four hundred and nineteen dollars, which was paid out of the proceeds of the sale of the Raleigh lands), and the relationship of one of them (of attorney and counsel) to the plaintiff, together with the direct conflict of testimony taken and filed in the cause, fully authorize the court’s finding. Smith v. Yoke, 27 W. Va. 639.
The fourth assignment is that “if she ever had any claim in the Raleigh county lands, it ought to have been assigned to her out of the unaliened lands of her husband, Augustus Back. Stimson v. Thorn, 25 Grat. 278.” The appellants rely, under this assignment, on Stimson v. Thorn; but the circumstances of this case take it without the purview of that case, because, without the fault of plaintiff, the suit-
The fifth assignment is that “plaintiff has waived all claim to dower in said Raleigh county lands.” This is simply a repetition in another form of the third assignment.
The sixth assignment is, “Plaintiff is not entitled to dower in these lands, by reason of an ante-nuptial contract made with her late husband, which is referred to in the answer of petitioner, J. M. French, and not denied by the plaintiff in this cause.” It is true, such a contract is mentioned in the answer of J. M. French, but therein called a “postnuptial contract” (I presume, by mistake, as it is referred to in appellants’ brief as an “antenuptial contract”), to which answer there is replication, and the proof to establish said contract wholly fails. No proof was taken to establish any such contraed.
The'eighth assignment is, “The decree • complained of shows that it was rendered by Thomas G. Mann, Esq., but the decree does not show that he was a resident of the ¡State, and a practicing attorney in some court in this State.” The decree complained of starts out with: “It appearing that the judge of this Court is so situated as to render it improper for him to sit in this case, an election was ordered to be held by the clerk of this Court for the purpose of electing a special judge to try the same. Thereupon an election was held according to law, and Thomas G. Mann was elected special judge1 to try this case, and, after taking the oath prescribed by law, proceeded to hear the same, and rendered this decree.” No objection was raised to his service in that capacity. If he was not properly elected, the objection should have been made then, and it is too late to raise it in this Court for the first time, State v. Lowe, 21 W. Va. 782, syl, 3.
Reversed.