32 W. Va. 556 | W. Va. | 1889
On the 4th day of December, 1882, Jacob Lorentz applied to the Circuit Court of Braxton county for leave to file a bill of review, to reverse two decrees pronounced in this cause,—
The defendant, Miffiin Lorentz, appeared and demurred to the plaintiff’s bill of review and also filed an answer thereto, and some depositions were taken for both plaintiff and defendants upon the questions of fact raised by said bill, and on the 11th day of February, 1885, a decree was rendered by the said Circuit Court ofUpshur county dismissing the plaintiff’s bill; and, although the decree does not in express terms pass upon the demurrer, the effect thereof is to sustain the satire, the decree having been in favor of defendants.
In the case of Nichols v. Heirs of Nichols, 8 W. Va. 175, we find, that this Court held in the seventh point of syllabus, that when a bill of review is brought, upon new matter or evidence, and the defendant thinks it is not relevant, he may demur; and in the eighth point of the syllabus, that upon a bill of review for errors apparent upon the face of the decree it is not allowable to look into the evidence in the case
The plaintiff also seeks to review said decrees on the ground of the newly-discovered evidence, which is set forth in the affidavit of Perry C. Lorentz, which is filed with and made part of said bill; but on looking at said affidavit of said Perry‘C. Lorentz in connection with the allegations of the bill we find, that the newly-discovered evidence consists of declarations made by Jacob Lorentz, Sr., before and after the execution of the deed for the Bridge Run property in the bill mentioned, and in order to admit such testimony the-instrument must be attacked on the ground of undue influence in obtaining the same, or incapacity in the grantor. In the case of Dinges v. Branson, 14 W. Va. 100, this Court held “that the declarations of a testator or grantor- made either before or after the execution of the instrument are admissible evidence, where the issue involves the mental capacity of' the testator or grantor, at the time the instrument was executed, or that undue influence was exercised over him at that time;” and these, it is believed, are the only instances, in which such declarations can be proven, unless made at the time the instrument is executed.
The evidence then, which the plaintiff claims he has discovered, is immaterial, and the bill can not be sustained on that ground; and, even if there were any errors in law’ set forth in the bill, which would ordinarily entitle the-plaintiff to review said decree, it having been brought to the attention of the court below, that the plaintiff had applied to this Court for an appeal from the decree complained of, which appeal had been refused, because this Court was of opinion, that the decree complained of -was plainly right, the court beio-w acted rightly in dismissing said bill. See the case of
AEEIRMED.