32 W. Va. 195 | W. Va. | 1889
On the 28th day of December, 1845, Thomas Hoffman ex-
On the 21st day of November, 1853, an agreement in writing was entered into between said Shaw and one William Powell, whereby said Shaw contracted to sell to said Powell said sixteen acres of land ; and in said agreement it was expressly, stipulated, that, in case the said Shaw should obtain possession of said land and be able to hold the same against the claim of said Hoffman, said Shaw should convey it by deed of special warranty with relinquishment of dower unto said Powell on or before the 15th of April, 1856. In consideration whereof the said Powmll agreed to pay said Shaw the sum of $200.00 at the time of the delivery of such deed. At tile date of this agreement said Hoffman seems to have been in possession of said land by his tenant,'the said William Powell, who on the same day took a lease from said Shaw for two years commencing on the 15th'day of April, 1854, for said tract of land; and on the face of said lease it is stipulated between the said Powell and the said Shaw, that the said Shaw should in no event be held responsible for the sum of $25.00, the cash rent paid for said term, whether the said Powell should be able to obtain or retain possession of said land for or during said term or not. A short time after-wards said West sold said land to said Powell in consideration of $200.00 and transferred the same to William II. Shields who in turn transferred it to one Thomas Newlon;
Out of these proceedings four suits originated, all of which are so intimately connected, that they were eventually heard together. In the first place, in 1856, said Thomas ,M. West brought a suit against said Shaw to obtain a deed in pursuance of the contract of November 21,1853. Said Shaw then sued said West for the purchase-money. In 1865 these two suits were brought on and heard together, and a decree ■was rendered on the 25th day of November in that year in said consolidated cases directing said Thomas M. West to pay to the complainant, William Shaw, the sum of $200.00 with interest thereon from the 15th day of April, 1856, until paid and costs; and said decree further provided, that the said William Shaw before receiving the same should procure from the defendant, Charles AN. Newlon, trustee as aforesaid, the legal title to the land in the said bills and proceedings mentioned and should execute and acknowledge for record a deed with covenants of special warranty with his wife’s relinquishment of dower therein conveying to the said Thomas M. West the said tract of land and file the same in the papers of the cause.. In 1866 said Thomas A. Hoffman brought a chancery suit against said Thomas M. West,William Shaw, William Powell, William II. Shields, Thomas New-lon and Charles W. Newlon, reciting the proceedings, which had been taken-in the two first-named cases, and praying that the decree obtained .in the cause of Thomas M. West against William Shaw and William Shaw against William Powell might be set aside and be rendered of no effect, and that a decree might be entered compelling the said Charles W. Newlon, trustee as aforesaid, by deed to re-convey said land to plaintiff', and that all conveyances, leases and shifts between the said parties relative to said land be annulled and cancelled.
On the 21st day of September, 1868, the three cases of Thomas M. West v. William Shaw et al., William. Shaw v. William Powell et al., Thomas Hoffman v. William, Shaw et al. were consolidated and heard together; and a decree was therein rendered, in which it was held, that said Iloffmau in the last-named suit was entitled to the legal title to the land
In October, 1869, the said Thomas M. West filed a bill in said court against the administrator, of said William Shaw and others, in which he recites a history of the transactions between these parties with reference to said land, setting out briefly, what had been done in said former suits, and the fact, that Hoffman had been decreed to havé the best claim to the legal title to said land, and that he had conveyed the same to him in obedience to the direction of said former decree, and claiming, that, as the title of said Shaw to said land had been set aside on the ground of legal, if not actual, fraud, he should release his decree against said West, but that, instead of discontinuing his decree and claim for purchase-money, after his title to said land proved to be worthless, he had sued out a writ of fieri facias on his decree and had the same levied on the cattle and other property of plaintiff' and will make the money, if not x-estrained by the order of a
Can this bill filed by said Thomas M. West be regarded and treated as a bill 'of review ? “The causes for which a bill of review may be maintained are limited to these. (1) There must be error in law apparent upon the face of the decree ; or (2) the party seeking to review the decree must allege and prove the discovery of new matter which could not have been used at the time of making the decree in consequence-of the party’s ignorance that such matter existed.” Sands suit in Eq. § 631. This bill, if a bill of review at all, is based upon error in law apparent upon the face of the decrees; and in 4 Minor Inst. § 1253, it is stated that “no previous leave of the court is requisite in order to file a bill of review for error of law apparent on the face of the proceedings.”
When we examine the bill, we find, that, although it does not state concisely the errors of law relied upon, it does in general terms call attention tb the errors of law apparent on the face of the record. In the first place it calls attention to the fact, that as a condition precedent to the right of recovery of the $200.00 purchase-money from Powell, under whom appellant took as assignee, said land was to be paid for, when said Shaw should make a deed for the same; and that there was a further condition, that the sale should become valid, only if he (said Shaw) could hold the land against the claim of said Hoffman. Said bill recites the proceedings had in the chancery suit of appellant against said Shaw and others and also in the suit of Shaw against appellant and others; that these cases were heard together; and that the court decreed, that said Shaw should convey said sixteen acres of land to appellant, and that appellant should pay $200.00, the purchase-money, and interest from the 15th day of April, 1856, till paid and costs, and that said land should be sold, if the purchase-money was not paid. The plaintiff states, that this
How, if this prayer bo allowed, it would result in reversing and annulling the only portion of said decrees, that appellant cared to complain of, and the only part of the decree, that was affecting his interests and said prayer is in effect the same, as if he had prayed, that said decree be reviewed and reversed, so far as it directed said judgment to be enforced against him, after the consideration proved worthless.
In the case of Sturm v. Fleming, 22 W. Va. 404, it is held : “ In chancery pleadings, it is the disposition and practice of courts of equity to regard substance rather'than more form or name, and to so mould and treat the pleadings as to attain the real justice of the case; consequently a complaint styled by the pleader a ‘ petition,’ which has all the elements of a bill in the nature of a bill of review, will be treated as such, if it has the necessary parties with sufficient averments and prayer for relief.-’
In the case of Goolsby v. St. John, 25 Gratt. 163, in which there was a decree perpetuating an injunction, setting aside
In the case of Middleton v. Selby, 19 W. Va. 168, third point of syllabus, it is held : “In determining what is error of law apparent on the face of the decree, the court can not look into the evidence in order to see if the decree is erroneous, as that is the proper office of the court upon appeal; but in determining this'question it is necessary to look at the whole record, including the testimony, to ascertain whether upon the whole case error of law has been committed.”
In the case of Martin v. Smith, 25 W. Va. 579, a bill of review was treated and considered as a petition for a rehearing, and the decrees complained of wore reviewed. In that ease (page 583) Snyder, J. in delivering the opinion of.the court says : “In many other cases in this State and in Virginia, it has been held that a literal compliance with form's is not required by courts of equity. They regard substance rather than mere form, and so mould and treat pleadings as to attain the justice of the case. Under this rule, a petition for a rehearing has been treated as a bill of review, when the facts made it necessary to so regard it, and a notice to correct a decree on a hill taken for confessed hás been treated as a petition for a rehearing;” citing numerous authorities.
In this case I am of opinion, that this Court would be fully warranted in holding and treating the last bill filed by appellant as a bill of review; and treating it thus there can be no question as to.the error existing in the decree of September 21, 1868, awarding execution against the property of appellant on a decree, which had been obtained upon a claim, which had proved utterly worthless, and instead of issuing execution upon said decree the court should have cancelled and anulled the same. Treating then the bill filed by appellant not as an injunction-bill but as a bill of review, the decree rendered therein by the Circuit Court of Taylor county on the 31st day of March, 1888, must be reversed and annulled; and the decree directing appellant to pay the said William Shaw the sum of $200.00 with interest thereon from April, 1856 and costs being dependent upon said Shaw’s obtaining the legal title to the sixteen acres of land in the bill mentioned, and he having failed to obtain said legal title, said decree and the decree of September 21, 1868, awarding execution on said former decree are reversed, so far as they give said decree for $200.00 and interest and costs and award execution upon the same; and the appellant must recover from the estate of said William Shaw the costs of this appeal.
BEVERSED in PART.