Thompson v. Edwards

| W. Va. | Aug 15, 1869

Maxwell, J.

The appellants purchased a tract -of land from the appellee Edwards, and took a conveyance of the same with covenants of general warranty, and at the same time executed a deed of trust on the land to secure the payment of the unpaid purchase money. When default was made in the 'payment of one of the installments, the purchasers obtained an injunction to restrain the trustees from selling the land, as they were instructed to do bythe vendor Edwards. After the injunction was obtained, three supplemental bills were filed. On the 14th day of December, 1863, the injunction was dissolved, and on the 16th day of April, 1864, the bill was dismissed.

And afterwards, on the 14th day of April, 1866, the appellants offered to file a bill to review these decrees, but the' court refused to allow the bill to be filed on the ground that in its opinion there was no error in the two said decrees, or in either of them.

The appellants have appealed to this court, alleging error in the order refusing them permission to file their bill of review, and also error in the decree dissolving the injunction and dismissing their original bill. The bill of review proposed to be filed, alleges twelve distinct causes of error apparent on the face of the decrees sought to be reviewed. Assignment of error in the petition here claims four errors apparent on the face of the decrees complained of, for which it is claimed the bill of review ought to have been allowed to be filed, thus intending to abandon probably all the errors charged in the bill of review not here assigned as causes of error. Whether it was the design or not to abandon them, there seems to be nothing in them. And as to the first, second and third errors assigned here as apparent on the face of the decrees sought to be reviewed, they are not errors, if errors at all, to be reached by bill of review. Story’s Eq. Pl., sec. 407.

The fourth cause of error assigned is, that the cause was dismissed before the report of commissioner Cole came in, and before the trustees paid the 1000 dollars into court. By the decree dissolving the injunction it was ordered that the trustee.or trustees selling the land for the unpaid portion of the purchase money, retain the sum of 1000 dollars and paj?-the same into court, subject to the order of the court; and it was further ordered, that commissioner Cole state and report to the court an account showing the reasonable value of certain timber privileges mentioned in the decree. It is manifest that this decree left the rights of the parties undetermined. It is true that the court indirectly estimated the value of the timber privileges at not exceeding 1000 dollars, and directs its commissioner to ascertain their value, and directs the money to be paid into court, subject to the order of the court, leaving it to a future order of the court to determine what is to be done with it, and what amount is to be abated from the purchase money on account of the timber privileges. But the court dismissed the bill in April, 1864, without any reference being made to the former decree, or to the rights of the parties arising under it. For this, there is error in the decree of April 16th, 1864, and it is such apparent error, that it was error in the court to refuse to allow the bill of review to be filed to review it, but for no other purpose.

The causes of error in the decree of December 14th, 1864, dissolving the injunction, assigned here, are numerous, and will be considered in their order.

The first cause of error assigned is, that there were no answers filed to the three supplemental bills, and no motion made to dissolve the injunction awarded on the 12th day of February, 1859, upon the supplemental bill. The reading of the order dissolving the injunction does not show plainly which or what injunction the motion was made to dissolve, but as the court dissolved both injunctions, the fair presumption is, that the motion was to dissolve both; but whether it was or was not, is wholly immaterial, because a dissolution of the injunction on the original bill would necessarily carry with it the dissolution of the injunction awarded on the 12th of February, 1859, on the supplemental bill.

The second cause of error is that, “no answer having been filed to the three supplemental bills, they were taken for confessed and set for hearing; and at the hearing, all of their allegations are to be taken and considered as true. They disclose the fact that there was at the time of the dissolution, a serious shadow upon the title, — William H. Green claiming to own 15-32 parts of the land, and seeking to collect the unpaid purchase money from your orators. Edwards being a grantor with general warranty covenants, it was error in the court to dissolve the injunction until it was shown that the cloud did not exist, or that it had been removed.”

The first supplemental bill charges that William EL Green had instituted a suit in the circuit court for Spottsyl-vania county, Virginia, claiming that the said Green is the equitable owner of 15-32 parts of the land sold by Edwards to the appellants, and attaches the money owing by them to Edwards on their purchase, and refers to a copy of an amended bill filed by Green for proof of the allegation. Upon examination of the copy referred to, the allegation of the bill is not sustained. If anything is shown, it is, that Edwards was the owner of the entire tract of land, and not that Green was entitled to 15-32 parts thereof.

The third cause of error assigned is that, “the original injunction was obtained upon the allegation that Michael R. Keeney, Steirs J. Keeney, John Jarrett, and John Thompson, were in possession of a part of the land sold by Edwards, claiming and holding it as their own. It appears from the face of the decree that these outstanding, adverse claimants, had not been purchased out; it was, therefore, erroneous to dissolve the injunction.” As to Michael R. Keeney, he shows by his own evidence that he has no interest. - The answer of Edwards in the general denial, denies that Steirs J. Kee-ney has any interest. All that the bill shows is, that lie conveyed what interest he may have had, to Laidley & Brown, as trustees, to secure a certain debt, and the equity of redemption only would have remained in him. Nothing is shown in the evidence as to his interest; and upon bill and answer it must be taken that he has no claim on any part of the laud in controversy. The answer of Edwards, contained also in the general denial, denies that John Jarrett claims any interest in the land, and the weight of evidence is to sustain the answer.

The proof pretty fully establishes the fact that the John Thompson mentioned in the bill, and in the assignment of error, is the William Thompson who has released all his claims to Edwards.

The fourth cause of error assigned is that, “ it appears from the deed of Robert Poor and wife, which is made part of the decree which dissolves the injunction, that Poor retains one hundred acres of the land conveyed by Edwards to your orators, with covenants of general warranty.” It is plain from the evidence of Alvah Hansford, Sinnett and E. GL Hansford, that the one hundred acres reserved by Poor, is the one hundred acres laid down on the Sinnett map, and reserved in the conveyance from Edwards to the appellants.

The fifth cause of error is, that Moses W. Keeney, and others named, have reserved certain timber privileges on the land conveyed to appellants. This is a reservation that can be estimated in value, and the amount abated from the purchase money, as was attempted by the decree dissolving the injunction.

It is claimed in the sixth cause of error assigned, that there is nothing in the cause to show that the sum of 1000 dollars is a sufficient sum to compensate for the timber privileges reserved. How the court arrived at this amount does not very clearly appear, but it seems to have estimated that this sum was sufficient to cover the value of it, and a commissioner was directed to ascertain the amount. Alvah Hansford, in bis testimony, estimates the value of the loss of the land fronting on the creek, at about 500 dollars. It is not very certain what land this witness is referring to, but he seems to be referring to the land on which the timber privilege is reserved, and may be so understood; and if so, the court may very well have concluded that 1000 dollars would be ample to cover the value of the timber privileges reserved on the same land.

There can be nothing in the seventh assignment of error, that the deeds were made to Edwards instead of the purchaser of the land, because Edwards had conveyed with general warranty. It is claimed that the decree of April 16th, 1864, is erroneous, because the cause was dismissed before commissioner Cole made his report and the trustees paid into court the 1000 dollars as directed by the decree of December 14th, 1863. Both of these questions were considered w’hen considering the cause of error assigued in the order refusing permission to file the bill of review.

There- is error then, as before stated, in the decree of April 16th, 1864, because the cause was dismissed before commissioner Cole made his report, and before the trustees paid into court the sum of 1000 dollars as directed by the decree of December 14th, 1863, and before the said money was disposed of by order of the court.

Therefore, because of the error of the court below in refusing to allow the bill of review to be filed to review these errors in the decree of April 16th, 1864, and because of the errors themselves, the order of April 14th, 1866, and the decree of April 16th, 1864, will have to be reversed, with costs to the appellants, and the cause remanded for further proceedings to be had therein; but as the decree of April 16th, 1864, is reversed as far as it might have been reviewed upon bill of review, there will be no eause to allow the said bill to be filed if again offered in the court below.

The other judges concurred.

Decree reversed.