McGowan v. Elroy, 28 App. D.C. 188

McGowan v. Elroy

28 App. D.C. 188 | D.C. | 1906

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. A bill of review lies either for errors of law appearing in the body of the decree, or for new matter arising or discovered after it has been rendered. Purcell v. Miner (Purcell v. Coleman) 4 Wall. 519, 521, 18 L. ed. 459, 460; Ballard v. Searls, 130 U. S. 50, 55, 32 L. ed. 846, 848, 9 Sup. Ct. Rep. 418.

It seems that, where the first ground only is relied on, the bill may be filed without obtaining leave; but, where the second ground is alleged, leave must be applied for and granted. And both grounds may be joined in one bill, in which case it can only be filed upon leave. Ricker v. Powell, 100 U. S. 104, 109, 25 L. ed. 527, 528.

The bill in this case joins the two grounds, and it is contended, on behalf of the appellees, that no appeal can be entertained *196from tbe order dismissing it, because no leave to file was granted. Tbis is upon the assumption that the order appealed from is one refusing leave to file. In our opinion, however, the decree is one, substantially, of dismissal upon the merits. The petition was in the form of a bill of review setting out the complainant’s entire case, and, while no formal order of leave was entered, it was permitted to be filed as such, and a rule issued to show cause why its several prayers, including one for the appointment of a receiver, should not be granted. The respondents entered a general demurrer, which was sustained, and the rule was then discharged, with costs. It is too late now to object • that no special order of leave to file the paper as a bill of review was entered.

Other objections to the bill as being multifarious and supported by an insufficient oath need not be discussed.

2. The only error alleged as appearing in the body of the decree sought to be reviewed is that the equity court had no jurisdiction. The contention is that it is apparent from the allegations of the original bill that the complainants had a plain, adequate, and complete remedy at law by action of ejectment. No objection to the jurisdiction was made by the pleading, nor was suggested on the hearing. Whether sufficient or not to show that there was no adequate remedy at law, the bill was for the cancelation of a deed, presenting, therefore, a subject-matter of a class over which equity has always had jurisdiction. Consequently, the equity court was under m> obligation to consider the question of jurisdiction, of its own motion, upon the failure of the defendants to suggest, or call it in question in any manner. Nor would an appellate court thereafter, on direct appeal, be compelled to entertain the suggestion, though it might be within its discretion to do so of its own motion even. Certainly, under ordinary circumstances, — as, where the subject-matter of the bill is of a class within the general jurisdiction of equity, — it will rarely, if ever, exercise such discretion. Tyler v. Moses, 13 App. D. C. 428, 443; Slater v. Hamacher, 15 App. D. C. 558, 569; Smith v. Olcott, 19 App. D. C. 61, 13; Southern P. R. Co. v. United States, 200 U. S. 341. 349, 50 L. ed. 507, 510, 26 Sup. Ct. Rep. 296.

*1973. It remains to consider whether the bill ought to have been sustained on the alleged ground of new matter arising after the decree and which could not have been put in evidence in the original cause. As has been set forth fully in the statement of the case, this new matter consisted of the probate of a will of Susan Turner, had after the rendition of the decree. This will, made some months before the conveyance annulled by the decree, devised the premises in question to the appellants. It appears to have been filed in the office of the register of wills cm February 6, 1902, by the executor named therein, who is one of the appellants, but no petition for its probate was filed until February 1G, 1905, six days after the entry of the decree in the original cause. Having been made after the enactment of the act of Congress approved June 8, 1898, providing for the probate of wills relating to real property, the unprobated will could not have been offered in evidence, as an additional title on the part of the defendants, in the original case. As will be seen in the statement of the case, also, the original bill sought to obtain cancelation of this will for fraud and undue influence prac-tised in obtaining its execution, and to restrain proceedings for its probate, but the court sustained the defendant’s demurrer to the allegations relating thereto, and they were omitted in the amended bill, on which the case went to hearing. The will, having been subsequently admitted to probate, after trial upon a caveat filed by the appellees, vests in the appellant the title to the premises which they have been compelled to deliver into the possession of the appellees by the terms of the decree, which they, for that reason, seek now to review and vacate. Moreover, by the same decree, the appellees recovered of them the value of the rents of the premises from the time of the death of Susan Turner to the time of the decree, when ascertained by the auditor.

The case is a novel one, and its conditions appeal strongly to a court of equity. Notwithstanding, we are constrained to deny the relief sought in this proceeding. Equity must be called into activity by the exercise of due diligence. In this respect the appellants have failed. The original bill attacking the title claimed by the appellants under the deed was filed April 19, *1981902, and the final decree was not rendered until Feburary 10, 1905.

"While the statutes regulating the probate of wills provides no time within which probate shall be applied for, yet they contemplate that this shall be speedily done. Code, secs. 1635a and 830 [32 Stat. at L. 535, 545, chap. 1329].

The will was promptly filed with the register of wills, but the appellants, both of them devisees, and one of them the executor named in the will, took no steps to have it probated until after the decree canceling the deed was rendered. Ample time was afforded them to procure probate during the nearly three years in which this litigation was carried on; and, doubtless, the hearing thereof would have been further postponed upon application to give reasonable time therefor, if necessary. Instead, they deliberately elected to rest their claim of title upon the deed alone, and were only stirred into activity in the matter of the probate of the will by the unsuccessful result of that election. As they could not have proved title under the will until after its probate, they are not necessarily concluded by such election, in respect of their ultimate rights thereunder, by reason of the decree canceling their deed. And to prevent their possible conclusion by the dismissal of the bill of review, the decree therefor may be modified so as to show that it is without prejudice to them. Any right that they may have by virtue of the subsequently established will may, therefore, be hereafter asserted in such proceedings as they may be advised to take. Whatever incidental injury they may sustain through their failure to promptly probate the will, will be the consequence of their laches therein.

4. In view of the possibility of further proceedings in prosecution of their rights under the will, it is proper to briefly consider two other questions raised by the appellees in support of the finality and conclusiveness of the decree sought to be reviewed.

(1) The first of these is that by the terms of the will of Susan Turner, as stated in the bill of review, nothing more than a life estate is vested thereby in the appellants. There is no occasion to interpret the will in that respect, — a question that *199may hereafter become necessary in any other proceeding thereunder, — because the devisees are living, and their estate for life, at least, is conceded.

(2) The second point is that the deed, having been made subsequent to the execution of the will, necessarily operates as a complete revocation of the will, notwithstanding its cancelation for fraud and undue influence practised in its procurement.

It seems to have been an established rule of the common law that a subsequent conveyance of land previously devised, or a binding contract for conveyance by the testator, worked a revocation of the previous will, although the same estate may become reinvested in the testator by reconveyance or release made during his life. See Walton v. Walton, 7 Johns. Ch. 258, 269, 11 Am. Dec. 456, where the English authorities were fully reviewed by Chancellor Kent. Those authorities do not cover the precise question here involved, namely, the effect of a conveyance declared void and of no effect. On the other hand, the proposition that a conveyance of the title, subsequently declared void, does not operate, as a revocation of a previous will, seems to be reasonable, and has the support of weighty authority. Hawes v. Wyatt, 3 Bro. Ch. 156, 160; 1 Redf. Wills, p. 344.

In the language of Lord Thurlow in the case above cited: “Whoever orders it to be delivered up declares it to be no deed.’' The question is an unimportant one, however, in view of the provision of our Code, which declares the manner in which wills shall be revoked, and concludes with the words, “any former law or usage to the contrary notwithstanding.” Code, sec. 1626. [31 Stat. at L. 1433, chap. 854]. This is a substantial readoption of the early Maryland statute then in force in the District of Columbia. Of course, a valid conveyance by the testator of lands before demised necessarily operates as a virtual revocation pro tanto, not by way of revocation of the will, however, but because there is no estate left in the testator to pass under the will.

Eor the reasons given, the decree dismissing the bill of review will be modified so as to read without prejudice to the appellants and, so modified, will be affirmed, with costs. It is so ordered. Modified and affirmed.