46 W. Va. 209 | W. Va. | 1899
Judson Skaggs filed his bill in equity in the circuit court of Summers County at the January rules, 1895, against James Mann, A. W. Burdett, R. M. Burdett, W. C. Fades, L. J. Burdett, J. J. Swope, and W. J. Lemon, trustee, defendants, alleging that the defendant, L. J. Burdett was the owner of valuable real estate, upon which he lived in said county; that said L. J. Burdett became and was financially embarrassed; that defendants A. W. Burdett, R. M. Burdett, and J. J. Swope and plaintiff were creditors and indorsers of said L. J. Burdett, who, to save his creditors and indorsers, and secure them from loss by reason of their indorsements, executed a deed of trust to defen
Defendant Mann filed his demurrer to said bill, and, without waiving his demurrer, answered the same; admits the deed of trust executed by L. J. Burdett to defendant Lemon, trustee, and the written agreement; says they were executed by him in good faith; that he purchased the land at trustee’s sale at one thouasnd two hundred dollars; that he paid all the purchase money therefor, none of which was refunded to him by plaintiff or either of defendants; that the notes executed to said trustee were by respondent, J. J. Swope, plaintiff, R. M. Burdett, and A. W. Burdett, but were wholly paid by respondent, as well as costs of said sale; that out of the proceeds of said notes and sale of the land the John Graham debt represented by said agreement was paid, and the said agreement assigned to respondent, and the balance of the fund from the sale of the land was distributed as follows: One hundred dollars paid by trustee to Swope, one hundred dollars to plaintiff, and the residue thirty-seven dollars and forty-one cents, to other and minor creditors, secured by said trust; denies that plaintiff or either of defendants paid off the debts or either of them, that respondent was indorser on
Depositions of all the parties plaintiff and defendant who were interested, and other witnesses, were taken and filed in the cause, and on the 1st day of September, 1897, the cause was heard, when the court overruled the demurrers of defendant James Mann both to the bill and to the petition of Susan Burdett, as well as the several excep
On the 1st day of January, 1884, appellant wrote the trust deed which was executed by L. J. Burdett on the 28th day of August, 1885, and on that day entered of record, and the deed from T. D. Burdett and wife to L. J..Bur-dett was recorded on the same day. Susan Burdett knew nothing of the trust deed being executed by her husband until a short time before the sale under it, and did not know that the deed from T. E. Burdett and wife was not made to her until after this suit was brought. The petition of Susan Burdett is in the nature of an original bill. It makes all the necessary parties; and, taken in connection with the bill filed in the case and the exhibits therewith, which are referred to, is sufficiently clear in its allegations und its prayer to “duly apprise the parties of the essential inquiry to enable them to meet it by testimony.” Sturm v. Fleming, 22 W. Va. 404. Judge SNYDkr in his opinion in that case says: “I do not deem it necessay to enter upon any extended review of the authorities to prove that the form of chancery pleadings has in England, and perhaps to a greater degree in this country, ceased to be of any practical importance. Such pleadings in both countries have been greatly simplified. An informal claim or complaint is substituted in many cases for a bill; and the bill, when used, is only a concise narrative or statement of .the material part of the complainant’s case, with a prayer for the appropriate relief or for general relief, which will be sufficient in most cases. A rigid and technical construction of bills and other pleadings is exploded. Mayo v. Murchie, 3 Munf. 384. The name and the form are immaterial; substance is all that is required. In Virginia the practice of courts of equity, which is the rule
It will be observed that the plaintiff, Skaggs, raised no question about the petition, neither objecting nor excepting to the petition nor to the filing thereof, and the same was taken for confessed as to plaintiff, Judson Skaggs, and all the defendants except James Mann, and his answer was filed to said petition and general replication thereto bj^ petitioner; and thus the issue was fairly and clearly raised thereon between Susan Burdett and said Mann, who was claiming the title in fee to the lands in question. It is true the proceeding is somewhat irregular and not exactly in line of technical pleading to permit a petition in the nature of an original bill thrust into a pending chancery cause by one who was uot a party to the suit, yet it would seem that when an issue has been thus clearly made, involving the whole of the subject-matter of the original suit, in the cause has been fully and fairly heard as much so as it would be possible to be under an original bill and answer, and testimony taken therein, and a final decree adjudicating the rights of the parties who are all before the court, with all their depositions, that,, under section 4, chapter 134, Code, which provides: “No decree shall be reversed for want of a replication to the answer, where the defendant has taken depositions as if there had been a replication; nor shall a decree be reversed at the instance of a party who has taken depositions, for an informality in the proceedings, when it appears that there was a full and fair hearing upon the merits, and that substantial justice has been done,” — the decree should not be disturbed by the appellate court for a mere irregularity or technicality. Should this decree be reversed., and the petitioner, Susan Burdett, remanded to her original bill and proceedings to have the relief which is given her by this decree, the pleadings could not vary materiallv from those in this case on the petition and answer, and it is not probable that the testimony would be materially different. “It is the disposition of courts of equity to regard substance rather than mere form; hence in this case a bill filed as a cross bill, which could not be sustained as such, but having all the elements of an original bill, was held to
It is claimed by appellant that the claim of Susan Bur-dett is stale; that she is barred and estopped by laches and limitations that the land was purchased by L. J. Burdett in 1876 or 1877, under a written contract between himself and T. D. Burdett, and title taken in his name, and he was held out to the world as the owner; that on the credit of his .title he received large credit, and his neighbors indorsed his paper. ' It appears from the evidence that the land was contracted for by Mrs. Burdett herself, and that the deed was to be made to her as stated by herself and T. D. Burdett, who made the deed to L. J. Burdett, her husband; but that the writings were drawn afterwards at T. D. Burdett’s house, as stated by Marinda Burdett, wife of T. D. Burdett, who says she remembers distinctly that at the time L. J. Burdett said he wanted the land for his wife in place of the lands he owned where she was living, — he wanted the deed made to her. Witness was not present when the deed was made. Plaintiff, Skaggs, as a witness, says he knew at the time he indorsed for L. J. Burdett that the money paid on the purchase of the land was the proceeds of the sale of lands willed to Mrs. Bur-dett by her father. James Mann says he knew Mrs. Bur-dett had invested money in the Gap Mills property, but did not know what had become of it. He says L. J. Bur-dett told him the property was deeded to him, and his wife would not go into the deed of trust with him. and that Burdett always told him that the right was in himself. L. J. Burdett says that Mr. Mann was down at his house after they had purchased the property at Gap Mills, and they went together over the place; that he told Mr. Mann that the Scott money paid for the place, with the exception of about five hundred dollars, and Mann said he thought it was a good bargain; and that Burdett was not in debt at the time his wife gave him the money to buy the land in question. Burdett further says that, at the time Mann first went on his bond in the Bank of Union, he owed a debt, and one of the indorsers had become insolvent, and they wanted him to make the note stronger; that he asked Mann to indorse it for him. Mann said to him,
Afirmed.