3 W. Va. 522 | W. Va. | 1869
The appellee obtained an injunction in the circuit court of Kanawha county to prevent the appellant from enforciug a judgment obtained in said court against the said Granville Gibson for the possession of a tract of 200 acres of land. The bill charges that after the marriage of the complainants a tract of 200 acres of land was con-vejmd to the said Polly Gibson, and her heirs, by deed, bearinsr date in 1847; that the said tract of land was sold
Howell, Harrison and Sperry were made defendants, all of whom demurred to the bill. The defendants, Sperry aud Harrison filed a joint answer and admitted that the land was sold in the name of Polly Gibson, purchased by Howell and conveyed afterwards, as charged in the bill, and that a judgment was obtained, as charged, for the possession of 'the said land. They say that if the deed was obtained by fraud'they know nothing about it. They further deny that a tender to the party who purchased the land is sufficient, if refused by him. They also deny that Polly GiK son has any right to redeem while she remains a feme covert.
The defendant, Howell, filed a separate answer, and made
I think it sufficiently appears, from the evidence, that Mrs. Gibson did, before the expiration of the two years from the date of the purchase by Howell, tender to him, as charged in the bill, the amount for which the land was sold, with the additional taxes he had paid thereon • and interest on the same at ten per centum per annum from the time when paid. It was the duty of Howell to have received the money when tendered, and to have released to Mrs. Gibson the benefit of his purchase, but having failed to do so, she has the right to go into a court of equity to compel him, his heirs or assigns, to do so. The decree of' the court, therefore, so far as it affects the rights of Mrs. Gibson, is substantially correct. It is claimed, however, that the judgment in the action of ejectment against her husband is conclusive against him and cannot be inquired into in a court of equity, because he might have defended himself at law but failed to do so.
It is a general rule that where a party may defend himself at law, equity will not interfere; and where he might have done so but has failed to do it, he shall not have relief by bill in equity unless he was prevented by fraud or accident, or the act of the opposite party unmixed with negligence on his part. How does this rule apply in this ease? Gibson was not prevented by fraud, accident, surprise, or the act of the opposite party, from making his defence. But was his defence such as could have been made in a court of law ? The plaintiffs’ right to recover depended upon the tax deed to Howell, the deed from Howell to Harrison, and from Harrison to him, all of which were regular, formal, legal deeds. The plaintiff had the legal right to recover the possession of the land from the husband who held it in right of his wife, not in any right of his own. The fact that the wife had made the tender and offered to redeem the land could not have been set up in a court of law by the
The form of the decree complained of probably might have been different from what it is, hut it is substantially correct, and must be affirmed, witlvdamages and costs to the appellees.
Decree affirmed.