92 W. Va. 430 | W. Va. | 1922
The State by her bill proceeded against the Duquesne Coal Company, a copartnership, and the individual members composing the same, and Edgar B. Rowe, Fairmont & Clarks-
The defendants comprising the several members of the Duquesne Coal Company intervened by pleading ■ styled a demurrer, petition, cross-bill and answer, deraigning its title to all of said property proceeded against and other lands and mining rights, conveyed to them by one Charles G. Moore, and wife, who is alleged to have purchased and taken title to all of said property as trustee for their said firm at a judicial sale thereof by Hoffheimer, special commissioner, the purchase money for which had all been provided and paid by them prior to the deed from -Hoffheimer to Moore and prior to the date of the deed from Moore purporting to convey the property to respondents. Upon the showing made by this petition and answer, the court below, by decree of June 27, 1917, ascertained the amount of taxes for which the two tracts of land were sold and purchased by the state and the amount of all subsequent taxes accrued against the same, with the interest thereon, aggregating some $1,514.60, which being paid into court into the hands of the commissioner of school lands, the court decreed that the said two tracts be and the same were redeemed by said petitioners and respondents comprising said firm, so far as the titles thereto were in the State of West Virginia, and in so far as said redemp-tioners were entitled to redeem the same.
And the further order of the court was that as to all other matters in issue arising between the defendants upon the cross-bill and answer and not therein adjudicated, they should be and the same were adjourned and continued until a future term of the court and until which time the said cause was continued.
It is conceded that upon this decree of redemption all matters in issue between the State and the defendants to its bill were fully settled and adjudicated, and that nothing
On November 3, 1917, following said decree of redemption, the defendants Rush Smith and Minnie Smith, and Rush Smith and William D. Ireland as administrators c. t. a. of the estate of said Carrie Smith, deceased, appeared in open court and tendered and were permitted to file their several demurrers and answers to the bill of the State and to the cross-bill of appellees Peter Strom and others, partners trading as the Duquesne Coal Company, the answers of the other respondents adopting as their own the answer .'■"d cross-bill of the said Rush Smith.
After the filing of this cross-bill answer of Smith, the appellees, on August 13, 1918, tendered and filed an amended and supplemental answer and cross-bill, in which, after making their cross-bill a part thereof, and in order that their original cross-bill might not be treated , as an admission of the execution of the note for $26,733.32, not mentioned in the deed of said Moore to them, they denied the execution thereof by them or of any one authorized by them, denied any previous knowledge thereof, and denied that they at any time owed said Moore the amount represented by said note and vendor’s lien; and they denied all previous knowledge of the assignment of said note and lien to said Carrie Smith. They alleged that said deed was never delivered to them by said Moore, and alleged that they had no knowledge thereof until years afterwards, and that just before the State’s suit the said deed with the assignment thereof and of the vendor’s lien by said Moore was placed on record by the administrators of said Carrie Smith or her assigns, and that said note constituted a forgery, and the reserved lien for purchase money a fraud upon them. The prayer of their pleading was that said note be canceled and delivered to the plaintiffs, and also that the alleged lien be also canceled and annulled.
By the decree appealed from, pronounced on July 26, 1921,
It is apparent at once that the matters of the cross-bill have no substantial connection with or relation to the subject matter of the State’s suit, filed pursuant to chapter 105 of the Code. The State’s suit involved solely the rights of the State to sell the land purchased by it at a sale thereof for delinquent taxes, for the benefit of the school fund. In that suit it was necessary that the former owners and all persons having or appearing to have liens thereon should be made parties thereto, that the one having the right might avail himself in that suit of the right of redemption, or to the surplus of proceeds in the event of the sale thereof. The former owners and the lien creditors each had the right, and their rights were not conflicting, but stood on the same basis. Redemption by the former would inure to the benefit of the lien creditors, and vice versa.
But what possible relationship had these questions to .those sought to be presented by the respective cross-bills, namely, whether in the first instance the note made by Moore on behalf of the Duquesne Coal Company was a forgery and void, and the reservation in the deed of a lien therefor as purchase money and the attempted assignment thereof to Carrie Smith constituted a fraud upon the rights of appellees and a cloud upon their title, which should be removed; and in the second instance whether the right of the holders of such alleged note could be enforced against the land and against the redemp-tioners. Of course there could be no substantial connection between these questions and the issue presented by the State’s bill. Such being the fact, our decisions hold without exception that no relief can be afforded upon cross-bills between codefendants not presenting issues germane to the subject of the original bill. West Virginia Oil & Oil Land Co. v. Vinal, 14 W. Va. 637, 684; Hansford v. Chesapeake Coal Co., 22 W.
But should the court have retained jurisdiction and treated the appellees’ original and amended and supplemental cross-bills as original bills, and adjudicated the rights of the parties depending on the facts pleaded therein and the issues presented by the answer and cross-bill of the appellants, as the court by the decree appealed from undertook to do ? The decisions of this court mainly relied upon to support the decree are Sturm v. Fleming, 22 W. Va. 404, and Riggs v. Armstrong, 23 W. Va. 760, and the subsequent decisions which follow those cases, among which are: Skaggs v. Mann, 46 W. Va. 209; Coombs v. Shisler, 47 W. Va. 373; Pethtel v. McCullough, 49 W. Va. 520; Law v. Law, 55 W. Va. 4; and the later case of Plumley v. Bank of Hinton, 76 W. Va. 635.
It is unnecessary, we think, to enter upon any extended review of these and other cases bearing upon the subject. It is sufficient, we think, to say of all of them, that wherever 'the cross-bill, answer, petition or bill of review or other pleadings have been treated as original bills and the rights of the parties have been adjudicated thereon, the matters of such pleadings have had direct relation to the cause of action involved in or adjudicated upon the original bill and growing out of the same subject matter, and the codefendants had some conflicting rights therein opposed to the matter of the original bill. In Riggs v. Armstrong, for example, the cross-bill plaintiffs set up rights, not only against the claims of Riggs, the plaintiff in the original bill, but also against the trust creditors of Jones and Hanes. In that case it was held that the original cross-bill introduced into the record a new and independent cause of action not involved in the Riggs ease, but that as Riggs and his cause of action were eliminated by the settlement of his .claim, and as the'amended bill omitted the controversy with Riggs, the multifariousness pertaining
In Law v. Law, supra, the bill of review', involved was to set aside a decree entered upon the original bill, as having been obtained by fraud. It' related to the very subject matter of and decree upon the original bill. While for reasons stated it was held that the facts alleged did not present a proper case for a bill of review, nevertheless, as proposed, the bill should have been amended and treated as an original bill in the nature of a bill of review. In the case of Skaggs v. Mann, supra, the suit by the original plaintiff was to have a deed obtained by one of the defendants at a trustee’s sale decreed to be in trust for plaintiff and others as per contract entered into between the parties. The wife of the trust debtor intervened by petition, and upon grounds alleged sought to have the purchaser at the trustee’s sale decreed to be trustee for her, alleging that her husband fraudulently took- title to the property, and without her knowledge or consent deeded it to a trustee to secure his debts, who made sale thereof in fraud of her rights. In that case it was held that her petition might be treated as an original bill. Manifestly, that was. a ease justifying the maintenance of her petition as an original pleading. In Pethtel v. McCullough, supra, the original suit was by one creditor to set aside a fraudulent conveyance, in which another creditor, not a party to the suit and having a distinct debt against the debtor, filed his petition. An order subsequently entered in the cause dismissed the original case agreed; and it was held that this dismissal did not take with it the petition of the intervening creditor, but that his petition might be maintained as an original bill to obtain the relief prayed for. In Coombs v. Shisler, supra, a suit by the administrator of the decedent’s estate, there was a petition filed after a final decree, by the receiver of the court, in whose favor there had been a decree against the estate for a debt due from the decedent incurred while holding the office of general receiver. The petition sought to implead and require
We find no case justifying the maintenance of a cross-bill or cross-pleading as an original bill, and a decree thereon, when the subject matter thereof has no substantial relation to the matter of the original bill or the decree thereon; and for that reason we are .of opinion that the decree below in so far as it undertook to adjudicate matters on defendants’ cross-bills should be reversed, and the cross-bills be dismissed.
Reversed; Gross-bills dismissed.