61 W. Va. 78 | W. Va. | 1906
From the allegations of the bill and other parts of the record, the following facts appear: Mary E. Poling, wife of A. J. Poling, died intestate in Barbour county in July, 1894, survived by her husband and a number of children. Shortly previous to her death, being the owner of a tract of land (mentioned in the record as 68 acres) in said county, and while living with her husband, she made a deed for the land to him. At September rules, 1895, the husband, A. J. Poling, filed his bill in equity against the children and heirs of his deceased wife, substantially for the purpose of restoring the said deed made by her to him, alleging that the deed had been lost or destroyed without being recorded. That suit resulted in a decree in effect restoring the deed, by adjudicating that the decree stand in place of the deed and as the evidence of title of said A. J. Poling to the 68 acres of land, and that a copy of the decree be recorded in the office of the clerk of the county court of Barbour county in the proper deed book, etc. Afterwards, a lien-creditors’ suit was instituted in the circuit court of said county by Crislip, for the use of Chesapeake Guano Co., against A. J. Poling, to subject the 68 acres of land to the satisfaction of lien debts against him. In that suit a decree was entered confirming a sale of the land to John F. Woodruff at the price o'f $675.00, and directing a deed to him by a special commissioner. The decree confirming the sale was entered on the first day of June, 1898. Afterwards, the nine children and heirs at law of the wife, Mary E. Poling, instituted this suit in chancery in the circuit court of said county, and filed their bill therein at July rules, 1901, against A. J. Poling and John F. Woodruff to set aside the decree restoring the lost deed, and also to set aside the sale of the land to Wood-ruff. This suit resulted in a decree wholly dismissing the plaintiff’s bill, from which the plaintiffs, the children and heirs at law of Mary E.. Poling, appeal.
It is alleged in the bill in this cause that four of the plaintiffs — namely, Weslie, Earnest, Edna and Nina Poling — are infants, and they sue by their next friend. It is also alleged in the bill that Dennis Poling, another of the plaintiffs, was over fourteen and under twenty-one years of' age when the suit to restore the lost deed was instituted; and that Charles
For the purpose of determining the questions arising, we find it necessary to classify the plaintiffs as follows: (l) The four infant plaintiffs who were infant defendants in the suit to restore the deed: (2) the three plaintiffs who were adults at the time of the decree restoring the deed; (3) the two plaintiffs who were infants at the time of the decree restoring the deed, and were adults at the time of the institution of this suit. The rights of each class will be considered in the order named.
(1) The rights of the four infant plaintiffs who were defendants in the suit to restore the deed. The statutory right given to infants under section 7, chapter 132, Code 1906, to show cause against an order or decree at any time during their minority and within six months thereafter, is undoubted and unquestioned. Infants durinig their minority may do so by next friend. Within six months after attaining their majority, they may do so in their own names. The law is liberal in the form of procedure which they may adopt. They may show cause against the decree by original bill, bill of review, supplemental bill in the nature of a bill of review, petition, or answer, and perhaps by other forms of procedure. They may show error of law in the record of the suit in which the decree was pronounced, and the whole record will be examined for the purpose of determining whether or not there is error therein, or thej^ may show fraud or surprise. Lafferty v. Lafferty, 42 W. Va. 783; Ewing v. Winters, 39 W. Va. 489; Stewart v. Tennant, 52 W. Va. 559; and other cases. By the bill in this cause, the plaintiffs point out that the deed restored by the decree complained of was void, because made by a wife to her husband while they were living
The bill in this cause also prays that the sale to Woodruff' in the lien-creditors’ suit be set aside. The bill alleges, and the answer does not substantially deny, that the plaintiffs
(2) The rights of the three plaintiffs who were adults when the decree restoring the deed was -entered. It will be observed that this suit was instituted nearly six years after the decree restoring the deed was entered. Section 7, chapter 132, Code 1906, does not give additional rights or remedies to adult parties to a suit to show cause against a decree therein, or extend the time in which they may do so by any procedure available to them. Adult parties who have waited until the time has passed for anjT other remedy given them by law to obtain a reversal of a decree for error appearing in the record, are not entitled to join with infant parties in an original bill to reverse the decree for an error appearing in the record. These three adult parties cannot maintain the bill to remove a cloud upon the legal title to the land, because they also áre not in possession. It is not perceived that there is any other ground upon which these three adult plaintiffs can maintain this bill, under the pleadings and proofs.
(3) The rights of the two plaintiffs who were adults when this suit was instituted, and were infants when the decree restoring the deed was entered. It does not appear that this suit was instituted within six months after these two plaintiffs
We have not considered the demurrer to the bill separately. No point was made in argument on the demurrer, and our disposition of the merits likewise disposes of the questions arising on demurrer. The bill seems entirely sufficient as to the infant plaintiffs, for the purpose of showing error in the decree restoring the deed.
Our conclusion is that the final decree in this suit must be reversed as to the infant plaintiffs, and affirmed as to the adult plaintiffs; and that the decree entered at October term, 1895, in the cause of A. J. Poling against L. 0. Poling and others, in effect restoring the deed made by Mary E. Poling-to her husband, A. J. Poling, and adjudicating that the decree stand in place of the deed as the evidence of title of said A. J. Poling, and that the decree be recorded, etc., be reversed, set aside and annulled as to the infant plaintiffs in this suit. This decision is without prejudice to any remedy at law to which the plaintiffs are entitled for the purpose of adjudicating the question of title to the land.
Reversed m, Part.