59 W. Va. 130 | W. Va. | 1906
W. R. Lilly, guardian of John W. Claypool, an infant, instituted in the circuit court of Logan county summary proceedings under chapter 83 of the Code, to sell the timber on two tracts of land, the property of said infant, containing 229 and 310 acres respectively in said county devised tó him by the will of his father, Robert Claypool; said guardian representing in his petition that a creditor’s suit was pending to enforce the collection of debts due the creditors of said testator and that the said creditors were willing that the timber should be sold to satisfy their debts and thus relieve the said land so devised to the infant, and for the payment of taxes in arrears against the property and to pay the taxes for the subsequent years. Notice was given the infant, who was
John Glaypool made a proposition in writing to purchase the timber at prices named therein for the various kinds of timber on the terms mentioned in the decree, the bidder to have two years to remove from said tracts of land- said timber, and to give bond with approved security for the deferred payments of purchase money. This proposition was reported to the court by W. R. Lilly, the guardian, together with a bond of the purchaser in the penalty of $3,000 with Millard McDonald and J. M. Vance surities therein payable to said guardian and conditioned for the payment of all the purchase money for said timber according to the terms of sale. And on the Jth of November, 1903, the court upon a further hearing of the matter and taking evidence as to the adequacy of the price paid, &c., confirmed the sale as being one that would promote the interests of the said infant and approved the security offered by the purchaser, and the court appointed Dick Perry and J. M. Vance commissioners to count said timber and report to the guardian and to the court the amount, kinds and sizes of the timber on said two tracts. Said commissioners , filed their report showing that the timber of said two tracts of land at the prices named made a total of $2,606.25, which report not being excepted to was confirmed. Afterwards, on the 4th day of May, 1905, Millard McDonald appeared in court and presented a deed from John Claypool to himself assigning to him the contract for the purchase of said timber and by oral representation showed to the court
Afterwards W. H. File was substituted for the said E. A. McDonald to make said survey. File filed his report, to which the guardian W. R>. Lilly and the guardian ad litem excepted. First: Because none of the timber reported in said report as being out of the boundary of the land upon which the timber was sold was in fact off of said land and all of the timber sold by the decree was upon the land owned by the infant defendant, John W. Claypool; Second: Because there were no facts before the court at the time the order of survey was directed which warranted the directing of the survey. “No evidence being introduced and only the statements of counsel as to the supposed fact that some of the timber was not on the land; and Third: That if any, or all, of the timber should be found to be off the land of the infant
By decree entered on the 11th of December the court overruled the exceptions of the guardian and guardian ad litem to the report of File and decreed a rebate or credit on the purchese money “of $624.00 béing the purchase price for the timber both cut and branded outside of the lines of said land as run by W. II. File, which the court finds to be the correct line of said survey.” From these decrees the guardian W. it. Lilly and the infant John W. Olaypool appealed.
This proceeding was for the purpose of selling the said timber, the property of the infant, John W. Olaypool; and the decrees, extending the time for getting the timber off, which is in effect making a new contract or changing the terms of the contract between the parties, and granting the rebate of the purchase money are based upon no pleadings whatever, but upon the mere oral suggestion or represen1 tation of said McDonald, who was in nowise a party to the proceedings and though interested as the assignee of the purchaser filed no petition setting forth any grounds for relief In the premises. There is no principle better settled than, that a judgment or decree cannot be entered in the absence of pleadings upon which to found the same. McNutt v. Trogden, 29 W. Va. 469; Pickens v. Love, 44 Id. 725: Bland v. Stewart, 35 Id. 518; Renick v. Ludington, 20 Id. 511, 536; Chapman v. Railroad Co., 18 Id. 184; Roberts v. Coleman, 37 Id. 143; McCoy v. Allen, 16 Id. 724; Moseley v. Cocke, 7 Leigh 224. The decrees extending the time for getting the timber off in the contract and making rebate of $624.00 on the purchase money are void and of no effect.
For the reasons stated, the said decrees áre reversed and set aside.
Reversed.