Hill v. Proctor. Proctor

• Decision Date: 28 April 1877
• Citation: 10 W.Va. 59
• Parties: Hill and ux. v. Proctor. Proctor v. Hill and ux., et al.
• Court: West Virginia Supreme Court

10 W.Va. 59

Hill and ux.

v.Proctor.

Proctor

v.Hill and ux., et al.

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

1. A case where two causes relating to the same subject were heard

together and a final decree rendered, which in a great degree _ applies to the other, in which it was held that an appeal taken by the plaintiffs in one case, who were defendants in the other, from said final decree, brought up both causes for review by the appellate court, all the parties to said causes being before the appellate court either by summons executed and counsel, or voluntary appearance by counsel.

2. The existence of a controverted boundary does not constitute a

sufficient ground for the interposition of courts of equity to ascertain and fix that boundary. It is necessary to maintain such a bill that some peculiar equity should be superinduced. There must be some equitable ground attaching itself to the controversy.

3. An exception to a deposition, whether endorsed on it or taken

and entered on its face in the process of taking it, or written on a separate paper and filed in the cause, (except upon the ground of incompetency, in which no exception is necessary) not having been brought to the notice of the court below, or passed upon by that court, ought to be considered as having been waived, and cannot be noticed by the appellate court; and a general judgment or decree of the court below against the party making the exception, cannot be considered as involving a decision upon the exception.

4. In a suit by the vendee against the heirs of the vendor, to com-

pel the conveyance by deed of land sold by the vendor, in his lifetime, to the vendee, generally the personal representative of the deceased vendor is a necessary and proper party to the cause.

5. All persons materially interested in the subject of controversy ought to be made parties in equity, and if they are not the defect may be taken advantage of, either by demurrer or by the court at the hearing.

6. If it appear on the face of the record that the proper parties are wanting, the decree will be reversed by the appellate court, unless the objection was expressly waived in the court below.

7. If the plaintiff has shown a right to relief against the defend-

ant before the court, his bill ought not to be dismissed, because the proper relief cannot be extended to him, in consequence of his omission to make other necessary parties. But in such case the appellate court ill send the case back that proper parties may be made.

8. The twenty-second and twenty-third section of chapter one

hundred and thirty of the code of 1868, make no material change in the common law as to husband and wife giving evidence for or against each other in a cause in which they are parties, except in an action or suit between husband and wife. In such case, the twenty-third section, and especially the fifth exception thereof, so modifies the common law as to allow husband and wife to be witnesses for and against each other in suits between themselves. It may be that in some cases brought by husband and wife, for certain causes of action, the wife, where she is the meritorious cause of action, may be admitted to give evidence. But that question did not arise in this case, and is, therefore, not now decided.

9. Evidence is admissible to prove declarations as to the identity

of a particular corner tree or boundary, made by a person who is dead, and had peculiar means of knowing the fact; as for instance, the surveyor or chain carrier upon the original survey, or the owner of the tract, or of an adjoining tract calling for the same boundary, and also tenants and processioners and others, whose duty or interest would lead them to diligent enquiry and accurate information as to the fact, always excluding those declarations which are liable to the suspicion of bias from interest.

10. A case in which the declarations of a deceased former owner of land were admitted as evidence, and also in which it was held declarations of such former owner were inadmissible as evidence under the above rule. See opinion of the Court in this case.

An appeal from a decree of the circuit court of the county of Kanawha, pronounced on the 21st day of June, 1873, in two causes heard together, in one of which G. W. Hill and wife were plaintiffs, and Mayberry Proctor was defendant, and in the other Mayberry Proctor was plaintiff, and G. W. Hill and wife and others were defendants.

The appeal was granted upon the petition of G. W. Hill and wife.

The case sufficiently appears in the opinion of the Court.

The Hon. Joseph Smith, Judge of the seventh judicial circuit, presided at the hearing below.

J. H. &, 7. F. Brown for appellants: Smith & Knight for appellees:

Haymond, Judge:

At June rules, 1868, Mayberry Proctor tiled his bill in the circuit court of Kanawha county, against George W. Hill and Rebecca, his wife, James E. and Betsy Kendall and Biddy Ann Woody, as heirs at law of Joseph C. Kendall, deceased. The bill alleges, that on the 9th day of January, 1844, Joseph C. Kendall made a written contract, by which he agreed to convey to Berry Proctor (that being the name by which he was familiarly called) a tract of land in Kanawha county, on waters of Blue creek, to-wit, on the Big Fork of Blue creek, from the first hollow below the improvements where Simon Oxier lived, crossing the creek at right angles so as to include both improvements where Childers Branham then tended, and where said Oxier tended in 1843, and thence to said Kendall's upper line, excepting the minerals on said land. The said contract is exhibited with the bill, as exhibit "A." The bill further alleges, that the consideration to be paid by the plaintiff for said land was $300, of which $265 was paid at the date of the contract, and the balance has since been paid and discharged, as will be seen by the inspection of said contract and the endorsements there- on; that by the said contract, said Kendall bound himself, and his heirs, to make a conveyance for said land, when the balance due on the land should be paid. The bill further alleges that Joseph Kendall, at his death, left, as his heirs, James E. Kendall, Betsy Kendal], Rebecca Kendall, whose husband is George W. Hill, and Biddy Ann Woody, who married Woody, who has since died. The bill prays that, if necessary, a survey of said tract may be ordered by this Court to ascertain the true and precise boundaries of said tract of land, and that the defendants may be required to make to plaintiff a good and sufficient deed therefor. The bill also contains a prayer for general relief. The said contract is filed, but it does not appear to be marked "A." The contract is in these words:

" Know all men by these presents: That I, Joseph C. Kendall, am held and firmly bound to Berry Proctor, in the sum of $300, to make to him all my right, title and interest to a certain piece of land, lying on the Big Fork of Blue creek, from the first hollow below the improvement where Simon Oxier lived, crossing the creek at right angles, so as to include both improvements where Childers Branham tends, and were tended in 1843, and thence to Kendall's upper line, minerals excepted; and when said Proctor shall pay the residue of said $300, which is $45, the said Kendall having received $265,

then he, the said Kendall, binds himself and to the

above right.

" Given under my hand this 9th day of January, 1844. [Signed]" Joseph C. Kendall.

" Witness M. Jones."

This indorsement appears on said contract: "Received payment in full, by an order, verbal, on W. Tompkins, April 16, 1844."

[Signed]" J. E. Kendall."

A diminution of the record in this case was suggested by the appellees, and a writ of certiorari awarded by the court and duly issued to the clerk of the circuit court of Kanawha county, commanding him to certify and transmit to this court the omitted parts of said record, &c." And the clerk of said circuit court, in obedience to said writ, certified to this court a copy of an answer of said Hill and wife, which the clerk certifies has this indorsement thereon " 1868, July Hides. This ans. and ex. filed." The answer appears to have been sworn to by the defendant, Geo. W. Hill, on the 28th day of July, 1868. The said indorsement on the answer is not signed by the clerk, nor does it appear that the filing of the answer was entered on the rule book at July rules, or at any time. Nor is there any order of court showing the filing of said answer. It appears that on the 16th day of October, 1868, the cause " came to be heard upon the bill and exhibits taken for confessed, and set for hearing as to all the defendants, they having been duly served with process, and still failing to appear and plead, demur or make answer thereto, and was argued by counsel And on motion of complainant, it is adjudged, ordered and decreed, that the surveyor of this county, do, after giving reasonable notice to the parties, go upon the premises described in complainant's bill and claimed by him to have been purchased of Joseph C. Kendall, and survey and lay off the bounds of the same according to the description made thereof in the title bond of said Joseph C. Kendall to the complainant, bearing date the 9th day of January, 1844, and filed as an exhibit with complainant's bill, and that he return a report, &c." On the 20th of October, 1870, the court made an order by " consent of the counsel of the respective parties," displacing the surveyor, and appointed Thomas J. Mathews, and ordered him to do all the surveying and perform all the duties required of said surveyor by the order appointing him, &c. It also appears from the record, that on the 8th day of November, 1872, the court made this entry in the cause of record:" The defendant's, by their counsel, this day tendered their answer to the complainant's bill, and the complainant takes time to consider thereof." Immediately after this entry as the record comes to us, appears what purports...