Laidley v. Jasper, 49 W. Va. 526

Laidley v. Jasper

49 W. Va. 526 | W. Va. | 1901

Brannon, President:

John B. Laidley in an action of ejectment in the circuit court *527of Cabell County recovered against Jackson Jasper and James J asper a verdict for a lot of land in the city of Huntington. The defendant made claim for improvements, and the jury fixed the value of the improvements at one thousand'five hundred dollars, and the value of the lot without the improvements at four hundred and fifty dollars; whereupon, under chapter 91 of the Code, Laidley elected to relinquish his title to the lot to the defendants and to take the money fixed as the value of the lot, and the defendants failing to pay that money, judgment was entered under said statute for the sale of the lot, and the lot was sold by a commissioner. J ames M. J asper filed exceptions to the sale, and the court having confirmed it, he took this writ of error.

One exception to the sale is, that notice of it was not properly published and posted; but the notice and its publication in a newspaper appear to be adequate, and as to posting, the sale report certifies that the sale was made “after advertising said land for the time and in the manner required by said order,” which wo must take as true until evidence of its untruth is shown.

A second objection is that a scire facias to revive the case against the heir of Jackson Jasper, who died pending the suit, was returnable at one term of court, and the revival was made at another. That is no matter. The scire facias being process issuing out of court, and not the individual act of the party, the revival could be made at any time, and was not confined to the day of its return. State v. Campbell, 42 W. Va. 247. As to the claim that the revival was made at a special term, not regularly called, it is apparently waived, and is untenable, as there is no evidence to show the irregularity, and we presume that the term was regularly called. State v. Winans, 22 W. Va. 678.

The third exception to the sale was that Isbell, the purchaser, at the date of sale was a defendant in a suit in equity in the United States circuit court of Collis P. Huntington v. John B. Laidley and others, in which an injunction was in force at the date of the sale restraining Laidley from prosecuting the ejectment, and that the case had gone to the Supreme Court of the United States, and was still there pending. It does not appear by record what was the matter involved in the Huntington suit, or that the injunction operated upon this ejectment or this property, or that Isbell or Jasper was a party. We are asked to look at the case as reported in 176 U. S. 668. That is not a part of this record to show facts in this case. Even if it were, we *528cannot there find legally the necessary facts to. say that the injunction tied up this case. An injunction awarded by a Federal court against a suit in a state court is contrary to U. S. Revised Statutes, s. 730, and void. This is conceded by the opinion in the Supreme Court in the report referred to at page 678. Being void, the injunction could be lawfully disregarded. Ruhl v. Ruhl, 24 W. Va. 279; Hebb v. County Court, 48 Id. 279, (37 S. E. 676). Still, I am not prepared to say that upon the question of confirmation of a sale made while such an injunction is pending, it would not be ground for refusing confirmation by reason of its deterring bidders, promoting sacrifice and casting-cloud over title.

Another exception to the sale is inadequacy of price. The jury valued the property at one thousand nine hundred and fifty dollars. This is all that appears as to value. The property may have somehow depreciated. No advance or upset bid was offered or guaranteed by Jasper. A property is worth what it brings. A court must see clearly a gross inadequacy, and a sale will not generally be set aside unless a guaranty of a better price be made. Hogg’s Equity 405.

Another error assigned» is that the plaintiff had died. His death was after verdict, after the judgment that the defendants pay him money in lieu of judgment for possession, and after the order of sale. Nothing remained to be done but to sell. Death of a plaintiff after verdict does not cause abatement or demand revival. 5 Ency. Pl. & Prac. 798; Code, chapter 127, section 1. Therefore we affirm the several orders and judgment complained O'f.

Affirmed.