82 W. Va. 757 | W. Va. | 1918
Claiming right and title to a certain stave mill, consisting of boiler, engine, saw-rig, saws, shafting, belting, tools and appliances connected therewith and used in operating said mill, first by deed of trust thereon in his favor executed by the defendant Mrs. G. E. Davis to G. T. Trump, trustee, on October 7, 1915, to secure him the payment of fifteen hundred dollars represented by her notes therein described, and, second by absolute purchase thereof from her subsequent to October 7, 1915, complainant by his original and amended bills sought to enjoin, restrain and inhibit the defendants Albert Davis and G. T. Trump, trustee, from making sale of said property, as then advertised and proposed by them under a prior deed of trust purporting to have been executed by the said G. E. Davis to G. T. Trump, trustee, on May 15, 1913, to secure to said Albert Davis the payment of the sum of two thousand dollars.
The bill alleges that prior to the purchase of said property by plaintiff, and the date of his deed of trust thereon, Albert Davis had released of record his deed of trust of May 15, 1913, but that regardless of such release and in violation of
Upon the filing of the demurrer and answer of Albert Davis to the original bill, the answer denying the validity of said release deed and that he had. ever executed or authorized the execution thereof, and praying that the same might be declared null and void and removed as a cloud on his right and title, plaintiff tendered and filed his amended bill miaking the said G-. E. Davis and Ira Davis parties defendant thereto, reaffirming the allegations of his original bill and making the same a part thereof, and by way of amendment further alleged that since the filing of his original bill he had learned that the said G-. E. Davis in truth and in fact had never executed to said Albert Davis the deed of trust of May 15, 1913, under which he and his trustee were attempting to sell said property, that though the same purported to be signed by her, the fact was, as he was informed and charged, that her husband, Ira Davis, son of the said Albert Davis, without authority had signed and acknowledged said deed of trust: in her name; and furthermore that said C-. E. Davis was not then indebted to said Albert Davis in said sum of two thousand dollars, and that said deed of trust was executed as aforesaid for the express purpose of defrauding plaintiff out of the price of said mill and fixtures and all of which plaintiff alleges on information and belief the said Albert Davis had notice.
The amended bill as well as the original bill was verified by plaintiff, and the answer of Albert Davis to the original bill was verified by him in the form prescribed by the statute, but .the joint answer of him and of said G. E. Davis and Ira Davis, though signed by counsel on behalf of all, was verified only by G-. E. Davis and Ira Davis. It denies that said deed of trust to Albert Davis of May 15, 1913, was signed and acknowledged by Ira Davis for the purposes and as alleged in the bill, but that the same was signed and acknowledged by
On final hearing on bills and answers and depositions taken on béhalf of the parties, the court sustained the motion of the defendants to suppress the depositions of Ira Davis taken on their behalf and decreed that the same should not be considered, but provided that it should remain a part of the record. And on motion of defendants to dissolve the injunction the court was of opinion to and did overrule the same and was further of opinion that plaintiff was entitled to the relief prayed for, and adjudged and decreed that the defendants Albert Davis and G-. T. Trump, trustee, be and they were thereby forever enjoined from selling said property under the said deed of trust of May 15, 1913, and that plaintiff recover his costs.
To reverse this decree appellant, Albert Davis, relies on several propositions which so far as they are pertinent or applicable to the case at bar are: First, that as plaintiff pleaded and relied on his deed of trust and legal title as purchaser of the property, and not alleging possession, equity had no jurisdiction to award him injunctive relief or to remove a cloud. We think the answer to the proposition is threefold; first, the parties are claiming under the same grantor, appellant by deed of trust, appellee by both deed of trust and absolute purchase from the grantor. There is therefore no question of title presented. Where both parties claim under a common grantor equity will entertain jurisdiction to settle their conflicting rights, regardless of the question of possession. Eastern Oil Co. v. Coulehan, 65 W. Va. 531, 536; Sult v. Hochstetter Oil Co., 63 W. Va. 317.
Appellant also relies on the allegations, of his cross-answer, that the alleged release of his prior deed of trust was a forgery. Fraud constitutes a distinct ground of equity jurisdiction. Besides, when the issue of fraud was thus presented by defendant’s answer, plaintiff amended his bill and charged, first, that the deed of trust to appellant was made to cheat
The second proposition to be considered is that the plaintiff took no evidence to sustain the allegations of his bills, and that for want of proof the injunction should have been dissolved and the bill dismissed. It is true plaintiff took no oral evidence to establish his right or title to the property, but he exhibited with his bill the deed of trust executed to him by Mrs. G-. E. Davis, which was signed, sealed and acknowledged by her before an officer with authority in that behalf. This deed acknowledged the indebtedness to plaintiff. Neither of the answers specifically deny the making and execution of said deed. There is a general denial of allegations not specifically admitted to be true, which is not good pleading when excepted to. Without a pleading specifically denying the making of said vriting, sworn to by the pleader as provided by §40, eh. 125 of the Code, no proof of handwriting was required. This deed of trust constitutes proof of plaintiff’s rights and title based thereon, and though the proof of his purchase and acquisition of the legal title to the property may be short or deficient, we could not say he stood in the court below wholly without proof of equitable right. We may say in this connection however that we do not understand why counsel vere content to risk their cause only half made up by legal evidence when the evidence was no doubt' available to make out a complete ease of purchase of the trust subject by plaintiff.
Is there anything in the record to sustain the theory of the amended bill that the trust of May 15, 1913, was executed to defraud plaintiff? It does not appear when plaintiff’s debt accrued to him, whether prior or subsequent to the trust of May 15, 1913. It does appear by recital in the deed of trust of October 7, 1915, that the mill conveyed thereby was then engaged in cutting for plaintiff, and it is altogether likely that the grantor’s liability to him accrued out of the operation of the mill, and prior thereto, but how long prior
Lastly, it is earnestly insisted that the alleged release of the deed of trust was a forged paper, and void. The burden of proof of this fact was upon appellant. He alleged it in his cross-answer. Prima facie it was valid, a duly recorded instrument. Appellant assumed this burden. He swore that he never signed, acknowledged or authorized the signing or acknowledgment of the said release on his behalf. Only in this indirect way does he charge fraud. He put his son Ira' Davis on the stand and took his deposition, but after the same was filed, moved the court to suppress it. We note this fact appearing in the record, for the court refused to allow the deposition to be withdrawn. Appellant to support his own evidence relies on the deposition of the Justice before whom the release purports to have been acknowledged. The Justice attempts to identify the person acknowledging the release as a one-armed man, the son of appellant. He says he knew Albert Davis, but by his nickname, Pig Davis, and not as
Affirmed.