114 Va. 325 | Va. | 1912
delivered the opinion of the court.
Spangler filed his bill in the Circuit Court of Bedford county, in which he shows that about the year 1902 one Amos Ziegler, desiring to purchase certain mineral rights
Alleging that he was remediless in a court of law, Spangler, after stating with much detail in his bill what we
There was a demurrer to the bill by the defendants, which was overruled, and the defendants answered; and thereupon such proceedings were had as resulted in a decree of March 18, 1910, that 'unless the complainant, Spangler, should elect to pay to the defendants, who are the plaintiffs in the actions of assumpsit, the several sums claimed in those suits before the next term of court a decree for the sale of the property attached would be entered, which was accordingly done, the plaintiff, Spangler, having elected not to pay the sums demanded of him; and thereupon an appeal was awarded, which brings the case before us for review.
The appellant is, of course, in no position to assign as error in the decree of which he complains, that the demurrer to the bill which he himself filed was overruled. It therefore devolves upon the court, of its own motion, to act in the matter, or else to permit a controversy to be heard and determined in a court of equity with respect to which-such courts have no jurisdiction.
The whole controversy turns upon whether or not Ziegler was the agent of Spangler, and that is a matter which in all its phases can be fully heard and determined in a court of law, whether the rights of the plaintiffs in the actions at law depend upon the actual or implied agency of Ziegler, or upon a subsequent adoption and ratification of such agency by Spangler by reason of his having availed himself of the benefits of a contract entered into by an unauthorized agent. Of course we mean to intimate no opinion upon any of these questions. All we now decide
That it is not only within the power of this court, of‘its own motion, to dismiss a bill under such circumstances, but that it is its bounden duty to do so, is shown by many cases which appear in our reports.
“If at the hearing of a cause, the case made on the pleadings and proofs is one of which a court of equity has no jurisdiction, the bill should be dismissed, though defendant made no objection to jurisdiction, either by demurrer, plea, or. answer, but defended on the merits.” Green v. Massie, 21 Gratt. (62 Va.) 356.
“The question of jurisdiction of a bill in equity may always be raised by demurrer, and though no objection has been so taken, the court will dismiss the .bill at the hearing if it does not state a cause proper for relief.” Poindexter v. Burwell, 82 Va. 507.
“The rights of a seller under a contract by which he retains the ownership of the article sold until payment is made are enforceable only at law, and a court of equity has no jurisdiction to enforce such rights under a bill claiming a statutory lien on other property of the purchaser, to which the complainant is not entitled; and, on an adverse determination of his right to equitable relief, the bill will be dismissed, though no objection for want of jurisdiction was taken by demurrer.” Boston Blower Co. v. Carman Lumber Co., 94 Va. 94, 26 S. E. 390.
For the foregoing reasons we are of opinion that the decree should be reversed and the bill dismissed.
Reversed.