Justis v. Ga. Indus. Realty Co

• Decision Date: 11 March 1909
• Citation: 63 S.E. 1084,109 Va. 366
• Parties: JUSTIS . v. GEORGIA INDUSTRIAL. REALTY CO.
• Court: Virginia Supreme Court

63 S.E. 1084

109 Va. 366

JUSTIS .

v.GEORGIA INDUSTRIAL. REALTY CO.

Supreme Court of Appeals of Virginia.

March 11, 1909.

1. Eminent Domain (§ 177^*)—Condemnation Proceedings—Parties — Inchoate Interest of Wife.

A wife's inchoate right of dower does not make her a necessary party to proceedings to condemn her husband's land.

[Ed. Note.—For other cases, see Eminent Domain, Cent. Dig. § 478; Dec. Dig. § 177.*]

2. Judgment (§ 511*)—Collateral Attack-Fraud.

While a judgment can only be corrected by writ of error or other direct proceeding, it may be attacked collaterally for extrinsic fraud practiced on the court which rendered it.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 954; Dec. Dig. § 511.*]

3. Eminent Domain (§ 242*)—Collateral Attack—Fraudulent Condemnation—Vacation—Rights of Widow.

A private corporation, being unsuccessful in its attempts to purchase certain land from plaintiff's husband in his lifetime, induced a city to condemn the land as necessary for the improvement of a harbor, and when condemned to convey it to the corporation in exchange for certain other property and the payment of a difference in money. A judgment of condemnation was obtained by the city concealing from the court its arrangement with the corporation, after which such arrangement was consummated. Held, that the condemnation decree was void for fraud, and that complainant, after the death of her husband, was entitled to maintain a bill for the assignment of dower in the land.

[Ed. Note.—For other cases, see Eminent Domain, Dec. Dig. § 242.*]

Appeal from Law and Equity Court of City of Richmond.

Bill by G. E. Justis against the Georgia Industrial Realty Company. From a decree dismissing the bill, complainant appeals. Reversed.

W. L. Royall, for appellant.

E. Randolph Williams, for appellee.

WHITTLE, J. The decree under review dismissed on demurrer a bill filed by the appellant, G. E. Justis, widow of W. M. Justis, deceased, to have assigned her dower in a certain island located in the waters of James river, in the city of Richmond, known as "Justis' Island, " whereof her late husband had been seised in fee simple.

The materia] allegations of the bill are: That the William R. Trigg Shipbuilding Company, a private corporation, undertook to acquire Justis' Island by purchase from W. M. Justis, for use in connection with its adjacent shipyard. That, its efforts to purchase the island proving unsuccessful, it entered into an agreement with certain managing officers of the city of Richmond to the effect following: That the city would condemn Justis' Island pretendedly, as necessary for the improvement of its harbor, and when thus acquired would convey it to the Trigg Company in exchange for certain other property owned by that company, and which the city needed for its purposes; the company paying the agreed difference in values between the two properties in money. That in pursuance of this agreement the city council (well knowing that the island was not needed or to be condemned for the purposes stated in the ordinance, but was to be immediately conveyed to the Trigg Company in exchange for other property) passed an ordinance directing the city attorney to condemn the island for the alleged improvement of the harbor.

Justis' Island was condemned accordingly, and the contract between the Trigg Company and the city consummated by the execution of mutual conveyances to the respective properties. The condemnation proceedings gave no intimation to the hustings court of the agreement between the Trigg Company and the city; but the record represented to the court that the property was being condemned for a public use, and the court ordered its condemnation on that theory. It is further alleged that the condemnation proceedings were a fraud practiced upon the court.

The bill also alleges that the appellant was not a party to the condemnation proceedings and had no knowledge of them until long after they were concluded, and that the appellee the Georgia Industrial Realty Company, purchased the property in controversy with notice of the manner of its acquisition by the Trigg Company.

Taking as true, as we must do on demurrer, these properly pleaded allegations of the bill, we have the case of a municipal corporation, under the guise of acquiring private property for public use, in point of fact fraudulently procuring the condemnation of private property for private use. The question which confronts us therefore is: Shall a court of equity sanction a proceeding of this character upon the hypothesis that a judgment thus obtained is not amenable to collateral attack at the suit of the appellant, whose inchoate right of dower has since become consummate?

The decision of the trial court is placed upon the ground "that Mr. Justis was theonly necessary party Interested in the condemnation proceedings had in the hustings court, except the city of Richmond, and that the decision of the hustings court upon all questions involved in that controversy is impregnable to collateral attack."

The conclusion of the learned court would unquestionably be sound in a lawful proceeding against the husband to condemn land In which the wife had an inchoate right of dower. In such case the wife, not being a necessary party under the statute, on the principle of representation, would be concluded, however irregular the proceedings or erroneous the judgment might be; but the view taken by the lower court loses sight of the distinction between a judgment which is voidable simply by reason of error of judgment of the court which rendered it, upon matters within the pleadings and issues, and a judgment voidable for fraud practiced upon the court which rendered it, and which is extrinsic and collateral to any issue submitted to its determination. The judgment in the first instance can only be corrected by writ of error, or other direct proceeding; but in the last it may be impeached collaterally. Mahoney v. State Ins. Co., 133 Iowa, 570, 110 N. W. 1041, 9 L. R. A. (N. S.) 490.

That distinction seems to be clearly recognized by the authorities. For instance, if a court of general jurisdiction in condemnation proceedings, with the facts before it, erroneously expropriates private property for private use, that is an error of judgment for which its sentence may be reversed on writ of error; but if, on the other hand, the court be induced to render such judgment by the fraudulent concealment of the facts upon which it is founded, such judgment is liable to collateral impeachment.

In the case of Norfolk & Western Ry. Co. v. Mills, 91 Va. 613, 22 S. E. 556, in a concurring opinion at page 641 of 91 Va., at page 564 of 22 S. E., Keith, P., announces the general principle that: "There is no instrument so solemn, there is no judgment or decree so binding, but that, if fraud in its procurement be alleged and proved, it ceases to protect the wrongdoer or to obstruct the injured in the assertion of their rights."

"Fraud will vitiate any, even the most solemn, transaction, and...