45 W. Va. 290 | W. Va. | 1898
This was an action of unlawful entry and detainer, brought by William E. Watson, executor of Thomas F. Watson, deceased, against J. C. Watson, before a justice of the peace of Barbour County, on the 23d of November, 1896. The parties appeared, and the defendant filed his answer denying that he unlawfully detained the premises mentioned, or that any damages had been sustained by the plaintiff by reason thereof or otherwise; also claiming- that in the trial of said action the title to the premises described in the warrant would come in question, and for that reason the justice had no jurisdiction thereof. In his answer the defendant also set out the following facts tending to show that the title would come in question, to wit: That in the year 1894, when the land in question was bought and conveyed to plaintiff’s testator, the same was bought by him for defendant, who was his relative; that defendant was placed by him in possession thereof, which he had since held under said purchase; that testator was a wealthy man, who had reared defendant, was unmarried, and about the time of said purchase defendant had come to West Virginia from his home in Kansas to take possession of said land under a parol gift to defendant of same; that testator gave the land to defendant, and under the gift he took possession of it as his own, used it, paid the taxes thereon, and is in undisturbed possession of it, save by this suit and a chancery suit then pending in the circuit court of Barbour County styled “Wm. E. Watson, Ex’r, v. J. Creed Watson,” which was made part of said answer and defense; that of ali these facts the plaintiff, by himself and his agent, had full'and complete notice, and had had from the date of said purchase by testator and the conveyance to him by Worthington Ward by deed dated March 13, 1894, of the land in controversy.
The question presented for our consideration and determination in this case is whether the defendant at the date of the summons unlawfully withheld from the plaintiff the possession of the premises in controversy. Defendant, by his pleadings, claims that this question is res adjudicata; that it has already been heard and determined by a court of competent jurisdiction, in a suit between the same parties and in regard to the same subject-matter, and exhibits
In the case of Schoonover v. Bright, 24 W. Va., 698, this Court held that: “(1) An injunction will be dissolved on the hearing, if the answer fully, plainly, and positively denies all the material allegations of the bill on which the injunction was founded, and there is no proof to establish said allegations. (2) To warrant the interference of a court of law to restrain a trespass two conditions must coexist: First, the plaintiff’s title must be undisputed or established by legal adjudication; and, second, the injury complained of must be irreparable in its nature.” In the above chancery suits as we have seen, every material allegation of the bill was denied, and we must also infer that there was no proof to support said allegations; secondly, it appears that the plaintiff’s title was disputed, and nothing was brought forward to properly establish it. The bill asserted the right of the plaintiff to possession of the property, and there was a prayer for general relief, and while
There is another ground upon which I believe the circuit court was right in dismissing the plaintiff’s action. The suit was instituted before the justice and appealed to the circuit court, an answer of title was filed before the justice, and a supplemental answer of title was filed after the case came on the docket in the circuit court. Neither the plaintiff nor his agent or attorney filed an affidavit denying the truth of such facts, either before the justice or in the circuit court, — which state of facts made it the duty of the justice to dismiss the action, and he not doing so, it was the duty of the circuit court on appeal to have dismissed the action when such fact was brought to its attention by the supplemental answer of title. This was held in the case of Hughes v. Mount, 23 W. Va., 130, which was a warrant of .unlawful detainer issued by a justice. Answer of title was filed which was replied to by affidavit of the plaintiff, and the warrant was dismissed by the justice. On appeal to the circuit court the action of the justice was approved, and from that decision a writ of error was obtained, and the case brought to this Court, which held that: “If in such a case the justice has so dismissed such warrant, and an appeal to be taken from his judgment to the circuit court, and the same state of facts appear to the satisfaction of such court, either by the defendant’s answer or upon the trial of such warrant upon such appeal, it is the duty of such court to dismiss the
Affirmed.