123 Va. 147 | Va. | 1918
delivered the opinion of the court.
The parties to this litigation have at great trouble and expense endeavored to prepare the suit for a hearing on the merits, and have presented for our consideration a printed record of upwards of five hundred pages. The suit was brought in 1907. A large number of depositions have been taken in the case, and it is with regret that we find that, on account of defect of parties, the matters in controversy cannot now be determined on their merits.
The bill was filed in the Circuit Court of Fauquier county by Eustace Jeffries against James P. Jeffries, his nephew and attorney, charging the latter with many acts and transactions by which it is alleged he had fradulently possessed himself of nearly the entire estate of the complainant. The bill also charges that James P. Jeffries had fraudulently and without consideration conveyed to Mary H. Jeffries, his wife, all of the property of the complainant so acquired as aforesaid; and that his wife had notice of the fraud affecting her title; and the bill prays that the various fradulent transactions charged, including the deed to his wife, may be set aside as clouds on complainant’s title, that the title to the land be declared to be in the complainant, and that sundry deeds mentioned in the bill be set aside as clouds on his title. The only parties made defendants were James P. Jeffries and his wife, Mary H. Jeffries. Soon after the bill was filed James P. Jeffries was adjudged to be of unsound mind and C. M. White, who was counsel for the said Mary
The bill is very lengthy, and sets forth in great detail all of the alleged fraudulent acts and transactions sought to be annulled. The deed above mentioned from Jeffries to his wife was not filed as an exhibit with the bill, but was subsequently introduced in evidence. After setting out the details of the alleged fraud, the bill makes the following charge with reference to the deed from Jeffries to his wife: “Your orator shows that said James P. Jeffries, still intending and contriving, after your orator became aware of his perfidious and unfaithful conduct, to prevent your orator from compelling him to make restitution, and intending to keep to himself the fruits of his fraudulent efforts, and intending. still further to • hinder, delay and defraud your orator, by deed dated the......day of ..........'....., 19...., and recorded in the clerk’s office of Fauquier county, Virginia, in deed "book ........, page ........, fraudulently and deceitfully, and without valuable consideration, conveyed to Mary H. Jeffries, his Wife, all of his property, including that purchased by him, as above; who, with notice of the fraud affecting his title thereto, has accepted and retained the title to the same, and refused to make restitution to your orator.” The prayer of the bill, after asking that various transactions be set aside, also asks that “his subsequent conveyance thereof to his wife be set aside and annulled as clouds on your orator’s title.” The bill contains no statement of any fact affecting the interest of the children of James P. Jeffries, makes no charge of fraud on their part; and, in fact, does not mention them: But in the course of the introduction of evidence in the
In April, 1915, counsel for Mrs. Jeffries stated to counsel
When the case was revived as to James P. Jeffries, in June, 1908, the recital in the decree of revival plainly shows that it was revived against his children as heirs of James P. Jeffries, and not as remaindermen in the deed from Jeffries to his wife. Indeed, it could not have been otherwise,. as there was not an allegation in the bill in any way affecting the children. There was nothing in the pleadings to show that they had any manner of interest in the litigation, and if they had been made parties during the lifetime of their father, the case would have been dismissed as to them for lack of interest in the litigation upon the face of the pleadings. Under the allegations of the bill, there was no more reason why they should be made parties than any other persons in Fauquier county. Why they were not made parties i‘n the first instance is a mere matter of conjecture, but it would seem, from reading the charges of the bill, and its prayer, that the wife only was made a party because counsel in the preparation of the bill overlooked the fact that the two children had a direct ^nd substantial interest in two hundred acres of the most valuable land in controversy. This interest is in no way assailed by the bill, and they are unaffected by any decree that has been, or could have been, made in the case, in its then condition, affecting their interest under the deed from James P. Jeffries to his wife. They could not, with propriety, have been made parties defendant to that suit, otherwise than as heirs
But even if the bill had been so amended as to contain the needful allegations, the failure to appear in response to the notice by publication would not have been a confession of the allegations of the bill, nor a waiver of the notice required to take the depositions in the case. When a suit in equity is matured by order of publication against a nonresident, who does not appear, the bill is not taken for confessed, but the case is simply set for hearing on the process thus executed. It is the duty, therefore, of the complainant, to prove his case. If, as in the instant case, this proof is offered in the form of depositions, the defendant is entitled to notice of the time and place of taking them, else they cannot be read against him. This notice may be constructive, as well as the notice to commence the suit. But there must be notice of some kind and this notice must be given before the depositions are taken. Notice afterwards comes too late. Compare Pennoyer v. Neff, 95 U. S. 714,
It is insisted by counsel for the appellee that the objection of the want of proper parties .cannot be made for the first time in this court, and the following cases are cited to support that position: Blue v. Poling, 68 W. Va. 547, 70 S. E. 279; N. & P. Co. v. Norfolk, 115 Va. 169, 78 S. E. 545, Ann. Cas. 1914 D, 1067; Redd v. Supervisors, 31 Gratt. (72 Va.) 685. In the instant case, as to the two infant defendants, there was neither process against, nor appearance for, them while infants. There was no charge in the bill as to the deed to their mother which they were called upon to answer, and the order of publication, awarded against them after they became of age, was not awarded until all the evidence against them had been taken. ' This evidence, as we have seen, could not be read against them, and there was no evidence in the case upon which to base a decree affecting their interests under the deed from James P. Jeffries to his wife. It was necessary that the case should be in a proper condition to pass upon their rights under this deed before any decree could be made affecting the interest of Mrs. Jeffries under the same deed. The interests of the children of James P. Jeffries arising under the deed to his wife are so intimately connected with the jnterest of his wife arising under that deed that the latter cannot be passed upon without also passing upon the interests of said children who have had no opportunity to be heard on the questions involved. Under these conditions, we have held that, “Where there is such a defect of parties to-a suit that injustice may be done if the absent parties be not before the court, this court will remand the case in order that proper parties may be brought before the court, although no objection on that ground was made either in the trial court or here.” Wasserman v. Metzger, 102 Va.
For these reasons, the decree of the circuit court must be reversed, and the cause remanded, with direction to the circuit court to permit the complainants, if they shall be so advised, to so amend their bill as to put in issue the right of the children under said deed, or else to disclaim any purpose to question their rights thereunder.
Reversed and remanded.