82 W. Va. 158 | W. Va. | 1918
Lead Opinion
S. E. McCarty being the owner of a tract of land in Poco-hontas county, on the 31st day of October, 1906, conveyed the timber upon the same to T. A. Bruffey, trustee, to secure to J. E. Peck & Company the payment of certain debts mentioned in said deed of trust. Subsequently, on the 27th day of May, 1907, said McCarty conveyed the land, except the timber thereon, to the defendant J. H. McCarty. The deed of trust conveying the timber contained no limitations as to the time in which said timber should be removed from the land. The debt secured by said deed of trust remaining unpaid, J. E. Peck the cestui que trust therein, the trustee, and J. H. McCarty, the owner of the land, on the 24th day of April, 1909, entered into an agreement by which it was provided, among other things, that in case of a sale under said deed of trust, the purchaser at such sale should have three years from the date thereof within which to remove the timber. On the 1st day of June, 3909, the trustee made sale of the timber under said deed of trust, and on that day conveyed the same to the purchaser, the predecessor in title of the plaintiff, reciting in said deed the agreement made between McCarty, Peck and the trustee to the effect that the purchaser should be allowed three years within which to remove said timber. The timber was not removed within three years from the date of said purchase, and in the year 1916 the defendant J. H. McCarty sold the said timber to the defen4ant Spice Eun Lumber Company for the sum of one thousand dollars. The defendant lumber company, however, ascertaining that the plaintiff was making a claim to said timber, did not pay the purchase money to McCarty, but deposited the same in the
The jurisdiction of a court of equity to entertain the bill is challenged. The bill is filed upon the theory that the plaintiff, as successor to the purchaser at the sale made by the trustee, was the owner of the timber; that this fact appears from a proper construction of the title papers filed with the bill; that the defendant McCarty, when he sold this timber to the defendant Spice Run Lumber Company, was a trespasser and wrongdoer; and that the plaintiff may .waive his right to sue for damages for the trespass, and follow the proceeds derived from the sale of the timber, so long as the same can be identified, and so long as the rights of no innocent third party intervene. It the property involved in this case was the property of the plaintiff, then his equitable right to follow the proceeds of a sale of it by a wrongdoer, so long as he can identify such proceeds, can hardly be questioned. In equity such proceeds belong to the owner of the property, and they will be impressed with a trust in his favor so long as the same can be traced and definitely identified. 39 Cyc. 25. The fact that the plaintiff may have relief at law by a suit against McCarty, or against the Spice Run Lumber Company for damages, does not deny him the right to go into equity to secure the proceeds arising from a sale of his property. In this connection Mr. Justice Story in his work on Equity Jurisprudence, at § 1256, says: “It is true that Courts of Law now entertain jurisdiction in many cases of this sort, where formerly the remedy was solely in equity; as for example in an action of assumpsit for money had and received, where the money cannot conscientiously be withheld by the party; following out the rule of the civil law, ‘Quod condictio in-debiti non datur ultra quam locupletior factus est qui ac-cepitd But this does not oust the general jurisdiction of Courts of Equity oVer the subject-matter, which had for many ages before been in full exercise, although it renders a resort to them for relief less common as well as less necessary than it formerly was.” The theory upon which the courts
:t;i But wé nepd-not go beyond our-pwap bpr.deps-fprmffibority ¡¡.«clearly upholdingithe jurisdiction of’ equity in gujsh cages.,jin -rsthe aa¿és'o£ Ballard v. Balland, 25 W. Va. 470, and Barnett v. McAllister, 33 W. Va. 738; this, court ¡sustained) the.-juri'sdie-b'tion -of equity under¡.very .'similar •.circumstances, ,It is.:attempted to distinguish -thbse case’s-from,'the -ease herejUppn.the i ©facts: '-In thosfei cases the,owner' >of-real ¡estate;¡afte.ri malfing \fa¡'sale-of it by .executory' contract sold-iihito.-Ui. third; '¡patty-ii-Thé"court held that in such e.ase:the; purchaser 'Bnder>ithe > éiéciitory coiltracit held the ¡fulhequitable title, to the ¡prop epty, Xfand that ’.the; 'former! ¡ówhier, the' holder i of/thei legal jtifl,e,¡ wias Mb? efidity-'a’ trústpe fot;-sucll<¡purchaser -underi thej texecutpry u f-edntf áeíi,; and when-he-isold- •the- prppei'ty to, ;iu third; partyisuph -ypurohaffefi muden rthd ;eKéc.utory')eójD|tract! ¡wpuldoiprft) cptrtjof bjequittfl b'b > given the 1 benefit tof JtleneomtMcit; thlús) mad'e./i olf > i s otsfatfed»ítbatKth©he>',are;(ápecifi.c/ p,erfoí!maüc!oí)ca$esij(fufd¡(that
But it is contended that there is a controversy here as to the title to the timber, and that this controversy is one cognizable only in a court of law; that before the plaintiff could go into equity to follow the fruid he would have to first settle in a court of law his title to the timber. This contention might be correct if the plaintiff’s claim of title depended upon anything more than a construction of the title papers exhibited with the pleading. The title which he sets up and relies upon stands or falls with the construction given to the deeds and papers filed with his bill. It does not involve the trial of any question of fact, and where this is the case a court of equity is as competent to construe the papers and determine whether
It remains then for us to determine the effect of the deed made by the trustee conveying tMs timber to the plaintiff’s predecessor in title. It is earnestly contended by the plaintiff that this deed conveyed the timber on the land without any conditions, reservations or limitations, while on behalf of the defendant it is contended that the conveyance was upon the condition that the timber was to be removed within three years from the day of the sale by the trustee. It will be observed that the deed of trust made by McCarty to T. A. Bruffey, trustee, to secure Peck conveyed “all.of the timber
The circuit court therefore committed no error in sustaining the demurrer to the bill, and its action is affirmed.
Concurrence Opinion
(concurring):
I concur in affirming the decree dismissing plaintiff’s bill, but not for the reason given in the opinion. I do not think the bill presents a case for equity jurisdiction. It shows that the right to the fund in bank depends on the title to the timber from which it was derived and that the title was claimed adversely by J. IT. McCarty and by Williams, Trus
The title to the timber was purely legal, the ownership depending on the proper construction of the trust deed from S. E. McCarty to Bruffey, Trastee, and of his deed to A. D. Williams, a question which a court of law was as competent to determine as a court of equity. Poage v. Bell, 3 Rand. 586. No equities are involved. The insolvency of neither. J. H. McCarty nor the Spice Run Lumber Company is alleged, and by an action at law against either or both of them plaintiff had a full, complete and adequate remedy. Hence, there is no ground for equity jurisdiction. 1 Pomeroy’s Eq. Jur,, Sec. 130. No privity of contract existed between plaintiff and any of defendants and no relation of trust express or constructive. The bill does not disclose udiether plaintiff was a party to the arrangement with the bank or not. Presumably it was made between J. H. McCarty and the Spice Run Lumber Company only for the latter’s protection. But even if-plaintiff had been a party t,o it, that would not change the-situation so as to give equity jurisdiction of a suit by plain--
In Franks v. Cravens et al., 6 W. Va. 185, a deed of trust-to secure a debt had been given upon a tract of land on which' was located a boiler, engine and other machinery, used in connection with a sawmill. These articles were removed to another tract of land, another deed of trust given on them to secure a debt of another party, and they were subsequently sold under the second trust deed, whereupon the cestui que trust under the first deed of trust filed his bill in equity against the purchaser to compel restoration of the property to himself or his trustee, on the ground that it was trust property and was bought with notice of the facts. The court
Other authorities supporting the proposition that equity is without jurisdiction in the present case are the following: 1 Pom. Eq. Jur., Sec. 176; 2 Pom. Eq. Jur., Sec. 424; Fussell v. Gregg, 113 U. S. 550; Young v. Porter, 3 Woods (U. S. C. C.) 342; Cole v. Mette, 65 Ark. 503, 67 Am. St. Rep. 945; Galt v. Galloway, 4 Peters 332; Bassett v. Brown, 100 Mass. 355; Clausen v. Lafrenz, 4 G. Greene, (Iowa), 224; Morgan v. Palmer, 48 N. H. 336; Kimball v. Grafton Bank, 20 N. H. 347; Curtis et al. v. Blair, 26 Miss. 309; Vick v. Percy, 15 Miss. 245; and Hipp v. Babbin, 19 How. 271.
Ballard v. Ballard, 25 W. Va. 470; Barrett v. McAllister, 33 W. Va. 738; and Hogg v. McGuffin, 67 W. Va. 456, are cited to support equity jurisdiction in the present case. But each of them was a suit to compel specific performance, a remedy peculiarly equitable. Two of them involved contracts for the Sale of land, and the third, and last named, an option to purchase stock in a corporation, of peculiar value to plaintiff. Plaintiff had complied with the conditions, but defendant had sold the stock to an innocent purchaser for value, thereby putting it out of his power to comply with his contract. Compliance being impossible, the court there properly gave plaintiff a decree for the proceeds of the sale of the stock as an alternative, on his prayer for general relief, on the ground that Hogg’s option to acquire the stock imposed on McGuffin the duty to retain it so as to be able to comply with his contract in ease Hogg should elect to take it within the life of his option. It was impressed with a trust by virtue of the contract. Moreover, McGuffin’s insolvency was alleged and proven, therefore, his legal remedy was not adequate. In all three of those cases the subject-matter of suit was an. equitable claim or title, pure and simple, and the relief sought could be obtained only in a court of equity.
Wolf v. McGugin, 37 W. Va. 552, was a suit to avoid a preference which an insolvent debtor sought, by a sale of his
I find no authority in the books anywhere, in those jurisdictions where the distinction has been preserved between courts of law and courts of chancery, as it was originally established by a long course of practice in England, for the proposition that, where one of two adverse claimants of the legal title to property, whether it be real or personal, sells it, the other claimant can invoke the aid of a court of equity to recover the proceeds. It is a principle too firmly established to require any citation of authorities, that jurisdiction of a cause cannot be conferred by consent.
There is no better argument to show the lack of equity jurisdiction than the conclusion reached by the opinion itself. After holding that equity has jurisdiction, at the suit of the owner -of property, to pursue the fund derived from a sale thereof, wrongfully made, it reaches the conclusion that plaintiff had no title to the property when it was sold. I do not deny the correctness of the conclusion as a legal proposition, but I do deny our jurisdiction to decide it in this case, and would sirpply affirm the decree for- the same reason the lower. court sustained the demurrer to plaintiff’s bill and dismissed his suit, that is, for want of jurisdiction in equity.
Affirmed.