87 W. Va. 694 | W. Va. | 1921
The decree whose correctness is challenged upon this appeal sustained defendant’s demurrer to the bill and dismissed it without granting leave to amend, and held the bill unamendable.
The plaintiffs, Kelley and Lawson, who, together with Isner, the trustee, and the Smiths, were defendants in the Thompson suit, trace their title to the engine, boiler and feed grinder to their purchase of the grist and flour mill, then owned by the Smiths, at a judicial sale authorized by decree of the same court entered in the suit of G-. M. Hart against the Smiths and a. man named Canfield, the engine, boiler and feed grinder having, prior to the sale under the decree, been attached to or installed in and as a part of the mill and operated in connection therewith by the Smiths. To the Hart-Canfield suit neither Thompson nor plaintiffs Kelley and Lawson were parties, but they were present when the sale was made and the mill property purchased by Kelley and Lawson, and, with the acquiescence or permission of Isner, who executed the decree of sale, Thompson publicly announced his ownership of the engine, boiler and
To establish his right to enforce in his favor the lien under the terms of the deed of trust by .the Smiths to Isner, Thompson brought his suit against them, Kelley and Lawson, and upon a full hearing on the merits of the controverted title to the engine, boiler and feed grinder a decree, now questioned on the ground • of fraudulent procurement, sustained Thompson’s right to the property and ordered it to be sold and the proceeds applied to the satisfaction of the liens and liability so secured. This order also appointed Isner to make the sale, and Thompson became the purchaser.
' The specific ground alleged by plaintiffs in their bill for the .-annulment of that decree is the formation by Thompson and -the Smiths of a conspiracy to defeat the right claimed by Kelley and Lawson by virtue of their purchase of the mill sold -•under the order of the court in the Haft-Canfield proceeding. In ■other words, the bill charges that Thompson and the Smiths, ■combined to procure and did procure the decree in the suit of 'Thompson against the Smiths, Kelley and Lawson by perjury land false swearing designed and effected by them to defraud Kelley and Lawson of their right and interest in the engine, boiler and feed grinder.
Although not as certain and definite in its statements of the grounds of relief as a bill of the kind ordinarily should be, its
Although the bill filed by Kelley and Lawson may, and perhaps does, contain sufficient allegations concerning the unlawful eombination and the perjury and false swearing thereby consummated, yet they are not as definite or as specific as they ■should be in that respect. They are somewhat vague and uncertain and do not state with particularity how or in what .respect the fraud practiced was the efficient cause for the decree ■complained of. Plaintiffs do not claim to have been’ surprised by the perjury, though they do say they did not know of it "when it was committed, and not until long afterwards. Unless there was such surprise operating as a fraud, perjury is not a .ground for a new trial or a rehearing or review, unless made so by statute, and there is in this state no legislation upon that •subject. But surprise alone is not sufficient; it must be coupled with other facts and circumstances of sufficient weight to justify the belief that but for the false and fraudulent testimony the litigation might have terminated otherwise than it did. Such deception usually is chargeable to the misconduct of the litigant who prevails. As such it is one of the grounds of equitable cognizance. Anderson v. Woodford, 8 Leigh 316, 327-328; Clark v. Sayres, 48 W. Va. 33; Bodkin v. Rollyson, 48 W. Va. 453; Plant v. Humphries, 66 W. Va. 88; Fulton v. Ramsey, 76 W. Va. 45, 49; 14 Enc. Pl. & Pr. 739. “If a decree has
Plaintiffs’ bill, however, is not verified, nor is it accompanied by affidavits showing or attempting to show in what respect or to what extent there was perjury or false swearing on the part of the Smiths or Thompson, or in what way the fraud was perpetrated and accomplished the intended purpose. The bill also is equally at fault in this respect. These omissions are not fatal but are curable by amendment. Though the defects-are such as to render the pleading demurrable, the omission may be supplied, and for this reason the court should have granted plaintiffs leave to amend, instead of holding the bill unamendable.
There is not sufficient foundation for the motion of the appellee to dismiss this appeal as improvidently awarded, as it is predicated upon the conception that less than the jurisdictional amount is involved; in other words, that the grinder alone is the subject matter of the litigation, and that its value is less than $100. In whomsoever may be the ownership of the engine and boiler, plaintiffs claim title thereto by purchase at the judicial sale mentioned, and the validity of their title-is one of ithe matters adjudicated adversely to them in the Thompson suit, and it is from that decree that plaintiffs seek to purge the fraud alleged to have been committed by Thompson and the Smiths; wherefore the motion to dismiss is overruled.
For the several reasons given, our order will affirm the decree in so. far as it sustains the demurrer, but reverse it in' so-far as it dismissed the bill, and remand the cause with leave-to amend in the particulars mentioned, if plaintiffs be so advised, with direction, however, to re-enter the decree of dismissal
Reversed, and remanded.