Adkins v. Adkins

• Decision Date: 30 April 1957
• Docket Number: No. 10786,10786
• Citation: 142 W.Va. 646,97 S.E.2d 789
• Parties: Polly ADKINS et al. v. French ADKINS et al.
• Court: West Virginia Supreme Court

Page 789

97 S.E.2d 789

142 W.Va. 646

Polly ADKINS et al. v. French ADKINS et al.

No. 10786.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 9, 1957.

Decided April 9, 1957.

Dissenting Opinion April 30, 1957.

Syllabus by the Court.

1. 'Where a court has lawfully acquired jurisdiction of the parties and the subject matter of the litigation, subsequent departure by the court from the rules of law or procedure in the exercise of that jurisdiction, is not jurisdictional error.' Point 2, syllabus, Blankenship v. Mongini, 105 W.Va. 530 [143 S.E. 301].

2. 'A decree entered in a cause, in which all interested parties are before the court, and upon a bill upon which such decree would have been proper, under certain conditions which might have been shown by proof, upon the allegations of the bill, to exist, is not void for want of jurisdiction, however erroneous it may be.' Point 8, syllabus, Stewart v. Tennant, 52 W.Va. 559 [44 S.E. 223].

3. A judgment or decree of a court of general jurisdiction affecting the subject matter of a proceeding in which it has jurisdiction of the subject matter can not be collaterally attacked unless it appears from the record of such proceeding that the court acted without jurisdiction and that because of such action the judgment or decree was void.

4. 'An erroneous decree, not void for want of jurisdiction, is not subject to collateral impeachment.' Point 2, syllabus, Linn v. Collins, 77 W.Va. 592 [87 S.E. 934].

5. A suit to cancel, as a cloud upon the title of the plaintiffs, a deed made by a special commissioner for land sold by him and purchased by the defendants pursuant to a decree of sale rendered by a court of general jurisdiction in a suit in which such court had jurisdiction of the subject matter and the parties, which sale has not been confirmed and which decree, though erroneous, is not void, is a collateral attack upon such decree and can not be maintained.

J. Floyd Harrison, Wayne, for appellants.

Milton J. Ferguson, Charles W. Ferguson, III, Wayne, Philip A. Baer, Huntington, for appellees.

HAYMOND, Judge.

This is a suit in equity instituted in the Circuit Court of Wayne County on October 4, 1954, in which the plaintiffs Polly Adkins and Homer Adkins, her husband, Vernon Bradshaw and Mae Bradshaw, his wife, Dolliver Bradshaw and Mary Bradshaw, his wife, Helen Ruth Blankenship and Floyd Blankenship, her husband, Jewell Blankenship and Albert Blankenship, her husband, and Ella Gilkerson seek a decree to cancel and set aside a deed dated July 30, 1942, made by W. Earl Burgess, Special Commissioner, to the defendants French Adkins and Nora Adkins for a tract of sixty acres of land in Wayne County, West Virginia, which the plaintiffs contend is a cloud upon their title to the land, and to require the defendants to account for the rents, issues and profits which have accrued to the defendants during the period of their possession of the foregoing tract of land.

The plaintiffs Polly Adkins, Vernon Bradshaw, Dolliver Bradshaw, Helen Ruth Blankenship and Jewell Blankenship, all of whom were over the age of twenty one years when this suit was instituted, are children and heirs at law, and the plaintiff Ella Gilkerson is the widow, of Bryan Bradshaw, who died intestate in 1934, and as such claim to be the owners of the land by virtue of a deed dated September 4, 1933, made to Bryan Bradshaw by Joe Bradshaw, Sr., and Vada Bradshaw, his wife, both of whom also died before the institution of this suit.

To the bill of complaint of the plaintiffs the defendants filed a demurrer, a special plea of the statute of limitations, and an answer in which they denied the material allegations of the bill of complaint. The demurrer was overruled, the special plea was rejected, and the case was heard by the circuit court upon the bill of complaint, the answer, and the testimony of witnesses produced in behalf of the respective parties. By final decree dated April 19, 1955, but apparently entered of record April 20, 1955, the circuit court set aside as null and void the deed dated July 30, 1942, for the sixty acres of land made by W. Earl Burgess, Special Commissioner, to the defendants, rendered judgment against the plaintiffs in favor of the defendants for taxes and costs in another proceeding paid by the defendants aggregating $195.00, which was declared to be a lien against the tract of sixty acres of land, and also rendered judgment that the respective parties pay the costs expended by each of them.

On April 20, 1955, after the court had announced its decision, but apparently before the entry of the foregoing final decree, by a separate decree, the court refused to permit the defendants to file a petition for an allowance for improvements of the value of $2,500.00 alleged to have been made by them in good faith upon the land during the period of time they occupied it and for a suspension of the execution of the final decree until the amount of the improvements to which they were entitled should be assessed by a jury.

From the final decree cancelling the deed of July 30, 1942, made by W. Earl Burgess, Special Commissioner, to the defendants this Court granted this appeal and supersedeas upon the petition of the defendants.

Prior to September 4, 1933, Joe Bradshaw, Sr., owned in fee simple the land involved in this suit. By deed of that date, which was introduced in evidence, Joe Bradshaw, Sr., and Vada Bradshaw, his wife, conveyed the tract of sixty acres of land to Bryan Bradshaw. The consideration stated in the deed was $700.00, of which $150.00 was paid in cash, and $500.00 owed to a farm loan company and $50.00 owed to a designated person were to be paid by the grantee Bryan Bradshaw. The deed contained a reservation of a life estate in each of the grantors who continued to live on the property until each of them died. Joe Bradshaw, Sr., died October 6, 1953 and Vada Bradshaw died in 1941 or 1942.

It appears that Bryan Bradshaw who died intestate February 28, 1934, did not pay the unpaid purchase money of $500.00 due on the farm loan, that this indebtedness was paid by Nancy Bradshaw, the wife of Joe Bradshaw, Jr., a nephew of Joe Bradshaw, Sr., in October 1939, and that Joe Bradshaw, Sr., repaid that amount to her in December 1939. On December 4, 1940, Joe Bradshaw, Sr., obtained a judgment in the Circuit Court of Wayne County, West Virginia, against E. D. Bunn, Sheriff of Wayne County, Administrator of the Estate of Bryan Bradshaw, in the principal sum of $792.00 with interest and $15.00 costs.

In October 1941, Joe Bradshaw, Sr., instituted a suit in equity in the Circuit Court of Wayne County against 'E. D. Bunn, Sheriff of Wayne County, West Virginia, Administrator of the Estate of Byron Bradshaw, deceased; E. D. Bunn, Sheriff of Wayne County, West Virginia, Guardian of the infant defendants, namely, Dolliver Bradshaw, aged fifteen years; Polly, aged ten years; Helen Ruth, aged eleven years; Vernon, aged seventeen years; Jewell, aged eight years; Ella Gilkerson and Mack Gilkerson, her husband.' The summons was returnable at November Rules 1941 and was personally served upon Bunn as Guardian, Bunn as Administrator, and Ella Gilkerson and Mack Gilkerson, on October 29, 1941.

The bill of complaint, which was not introduced in evidence, was filed October 23, 1941. By decree entered November 24, 1941, during the Regular November Term, 1941, of the Circuit Court of Wayne County, Jess Hammock was appointed guardian ad litem for the infant defendants and as such filed answers in their behalf. These answers bear the notaion that they were filed October 23, 1941, and they were verified December 2, 1941. On December 10, 1941, a decree of sale was entered in the case. The contents of the decree were introduced in evidence and the decree contains this language:

'This day this cause came on to be heard upon the bill and its exhibits regularly filed at rules, upon decree nisi thereon and upon service had upon the defendants; upon the joint and several answers and separate answers of the infant defendants by Jess Hammock, their Guardian Ad Litem; upon the former orders and decrees made and entered herein; upon the judgment heretofore entered and recorded against the defendants in this cause; upon the evidence taken in open court in the presence of the Guardian Ad Litem, the guardian and others on behalf of the plaintiff and in support of his bill. From all of which it doth appear that the plaintiff is entitled to the relief prayed for in his said bill. It is, therefore, adjudged, ordered and decreed that the tract of land set out and described in said bill and in the deed accompanying said bill, be sold in satisfaction of the judgment lien held by the plaintiff or so much thereof as is necessary to pay off and discharge the costs of this action and the judgment set out in the bill, and for the purpose of making said sale, W. Earl Burgess is hereby appointed as Special Commissioner, who shall advertise the time, terms and place of sale in the Wayne County News, for the requisite time, and sell the same at the East front door of the court house, for cash in hand on day of sale; and from the proceeds so received, he shall pay off and discharge the costs of this action and then, discharge the amount due to the plaintiff, together with the interest and cost thereon, and should monies remain in his hands from said sale, he shall pay the same, over, in proportion to the defendants and those entitled thereto, according to their respective interests, but before making such sale, the said Special Commissioner shall enter into bond in the penalty of One Thousand ($1,000.00) Dollars, before the Clerk of this Court conditioned for the faithful discharge of his duties and distribution of the monies that may come into his hands.

'It is further adjudged, ordered and decreed, that there be taxed a statute fee of Twenty ($20.00) Dollars and a Guardian Ad Litem of Ten ($10.00)...