47 W. Va. 50 | W. Va. | 1899
America J. Sprinsgton and J. B. Springston, her husband, filed their original bill in nature of a bill of review, in the circuit court of Ritchie County against the administrator of the estate of S. D. Webb, deceased, and others, in which it is alleged: That the said America J. Springston is an heir at law and distributee of the estate of said S. D. Webb deceased. That in said court about the 1st day of May, 1891, one J. R. Sigler filed a general creditors’ bill against the three heirs of said Webb to ascertain the debts, and the property liable to the payment of the same, and enforce the sale thereof. The debts and property were ascertained by reference to a commission, and a decree was entered directing a sale of two tracts of land, one containing one hundred and eighty-three and a half acres, and the other five acres; and also an order was entered consolidating said cause with another suit instituted by H. E. McGregor, and to enforce a judgment lien against J. V. Webb, who .vas an heir at law of S. D. Webb, deceased. That the special commissioners, H. Peck and B. F. Ayres, advertised and sold the said one hundred and eighty-three and a half acres of land on the 1st day of the June term of court, 1893 (being the 20th day of June), to A. J. Patton and R. W. Morris at the price of five hundred and fifty-one dollars. The report of sale was returned by one of the special commissioners (Ayres), to which the plaintiffs took exceptions for inadequacy of price, and filed affidavits to sustain the same, showing the land to be worth at least one thousand two hundred dollars. Plaintiffs also made an upset bid of seven hundred dollars, and filed a bond to secure the same; and the plaintiffs understood the sale would be set aside, and the cause continued until the next term of court. That with this understanding the plaintiff
Defendants insist that the plaintiffs have no .right to question the recitals of the decree confirming the sale. State v. Vest, 21 W. Va. 796. This is not the rule where a decree is directly impeached for fraud or surprise in its procurement. It may be an absolute verity as to what oc-cured in court and was there recorded, but not as to the recitals therein contained as to what occurred other than in the presence of the court at the time of the entry of the decree, Black. Judgm. § 238. If such rule were to be held good in all cases, no decree could be impeached for
The motion to dismiss for failure to print the omitted portions of the record will be overruled, from the fact that such portions of the record are not before this Court for its inspection., Affidavits cannot supply the place of the records, and the court will not act upon them, but only from self-inspection on return of the certiorari. It appears that the clerk of the circuit court would not copy them, for the reasons that neither party would pay him therefor. It is a rule of this Court, that the party applying for the writ of certiorari must pay for the copying of the alleged omitted portions of the record, and if he refused to do so, that this will amount to a waiver of the writ, • and be so regarded.
For the foregoing reasons the decree of the circuit court dismissing the plaintiffs’ bill is reversed and annulled at the costs of the appellees Ayers, Morris, and Patton; and the order entered by it on the 29th day of June, 1893, in the case of Sigler and others against Musgrave and others, confirming the alleged sale of the one hundred and eighty-three and one-half acres of land, is also set aside, reversed, and annulled, and this cause is remanded to the circuit court to be further proceeded in according to the rules and principles governing courts of equity.
Reversed.