48 W. Va. 639 | W. Va. | 1900
Anthony Huffman, Rebecca E. Huffman, Anthony B. Poling and Yerney Poling made and entered into the following contract in writing: “An article of agreement, made and entered into December the 2d, 1890, between Anthony Huffman, of the first part, and Anthony Poling, of the second part, all of the county of Barbour and State of West Virginia: Now said Anthony Huffman doth covenant and agree with said Anthony Poling that he shall have one crop of grain off of the land that he fences and cleans up; then said Anthony Poling agrees
Rebecca E. Huffman died March 4, 1892. On the 21st of November, 1898, more than six months after the death of said Rebecca, her estate, on motion of Anthony B. Poling, was committed to JamesA. Williamson, sheriff of Barbour County, to be administered, and immediately after the appointment of such administrator, Anthony B. Poling and Venffey Poling brought their suit to enforce their claim for services under said contract
“First. Because he reports as the first rien upon the fifty-four acres of land descended from Rebecca Huffman the decree of this court in favor of the plaintiffs for one thousand one hundred and forty dollars.
“Second. Because he reports as a lien upon all the personal estate of said decedent, the first lien on said one hundred and thirty-two acres and as a lien second upon the said fifty-four acres and the debt of Sami Y. Woods for one hundred and nine dollars and twenty-six cents, which should have been reported as a lien first in order of priority on said fifty-four acres of land.
“Third. Because he reports as a lien upon any of the real estate the said decree for one thousand one hundred and forty dollars in favor of the plaintiffs.
“Fourth. Because he so reports the said one thousand one hundred and forty dollars without settling the administration accounts of Jacob W. Robinson, administrator of said Rebecca Huffman."
The cause was again heard on the 28th day of February, 1899, on said report, the proofs taken and returned therewith, and upon the four exceptions endorsed on said report, and upon all other proofs and records in said cause], “and it appearing to the court from the pleadings and proofs that there are no assets in
“First. It was error to overrule the demurrer to the amended biR.
“Second. It was error to reform the first report of Commissioner Kittle and reform the report and raise the amount found due from four hundred and thirty dollars and seventy-seven cents, with interest, to eight hundred and fifty-five dollars, with*648 interest, and decree for the aggregate, one thousand one hundred and forty dollars.
“Third. It was error to decree upon the second report of Commissioner Kittle, as reformed by the court, without recommitting the same, for the sum of one ttiousand one hundred and forty dollars with interest, aggregating one thousand three hundred and eighty-five dollars and ten cents.
“Fourth. It was error to include in said several aggregate sums the interest upon the interest, which had theretofore been aggregated upon the first and original sum found by the commissioner of four hundred and thirty dollars and seventy-seven cents.
“Fifth. It was error to overrule petitioner’s exceptions to said commissioner’s report, particularly to his report of February 28, 1899.
“Sixth. It was error to decree to said Woods any sum, unless there was decreed to him the three sums found due by the commissioner, aggregating one hundred and thirty-nine dollars and twenty-six cents.
“Seventh. It was error to enter a final decree in this cause ordering a sale of the real estate converted into personalty by the will until the questions arising upon the validity of the will were determined.
“Eighth. It was error to reserve the question of liability upon petitioner for the timber cut and removed upon the said fifty-four acres of land under the pleadings in this cause.”
As to the demurrer, defendant did not seem to rely upon it when ho entered it as he offered no grounds for it and permitted it to be overruled without opposition, but it is now said plaintiffs brought in no new parties and no new subject matter, and could be of no possible assistance in reaching a just and equitable conclusion upon the matters set forth in the original bill. This is not a. correct view of the matter. On the death of Anthony Huffman, the cause was revived only as to his executor. There being no personalty to satisfy any recovery which might be had the heirs and devisees of Anthony Huffman were neces-saiy parties and it was proper that they should be brought in the bill and was proper-to be filed. Fowler v. Kelly's Heirs, 3 W. Va. 71; Rex v. Creel, 22 W. Va. 373; Sommerville v. Sommerville, 26 W. Va. 484. And in connection with this error or immediately following it in his brief appellant insists that it was error in the
Reversed.