Alexander v. Petitioner
| Decision Date | 28 November 1896 |
| Citation | 42 W.Va. 465 |
| Parties | Alexander et al v. Davis et al. |
| Court | West Virginia Supreme Court |
Equity Practice Parties.
It is no longer the practice to join, as defendants in a suit in equity, for the purpose of discovery and costs against them, those who are not proper parties on other grounds.
A party who is charged in the bill with participation in the forgery of a deed to land, and of taking and certifying a false and fraudulent certificate, as a notary public, of the acknowledgment of such deed, for the purpose of cheating and defrauding the true owners, to the interest and advantage of such notary public, and the object of the bill is to have such deed delivered up to be can- celed, such notary, in his individual capacity, is a proper party defendant, on his demurrer to the bill.
3. Infant Defendant Guardian Ad Litem.
It is the duty of the court to appoint or see to the appointment of a proper guardian ad litem to every infant defendant in any pending suit, whether such infant defendant be married or single, as soon as such infancy appears
4. Infant Defendant Answer of Guardian Ad Litem.
And as it is the duty of such guardian to manage the case of the infant, and see to his interest, he must indicate his acceptance of the trust, by filing, adopting, or causing to be filed a proper answer.
5. Infant Defendant Guardian Ad Litem Error.
It is error to decree against an infant defendant without appointing a'guardian ad litem, who has shown his acceptance of the appointment by filing such answer; and for such omission a decree against an infant defendant is voidable, and will be reversed upon appeal.
6. Issue Out of Chancery Conflict of Evidence Sound Discretion.
In a pending chancery case, in which there is such a conflict in the evidence as, in the opinion of the court, to render it proper such court may direct an issue thereon to be tried in such court or in any other circuit court. Such discretion must, in the nature of its exercise, be a wide one, yet it is a sound discretion, the exercise of which is reviewable.
Tomlinson & Wiley and Chas. E. Hogg for appellants, cited 27 W. Ya. 451; 82 Ga. 687; Rice, Ev. 613-31, 788.
W. R. Gunn for appellees, cited Pom. Eq. § 114; Sand's Suit Eq. 231; 32 W. Va. 119; 22 W. Va. 1, 356, 461; 11 W. Va. 584; 20 Gratt. 147; 11 Gratt. 752; 1 Dan'l Ch. PI. & Pr. (4th Ed.) 844, 845, note, 850, note; 2 Munf. 310; 6 J. J. Marsh. 51; 10 W. Va. 49; 3 S. E. Rep. 690; 7 Eng. Law and Eq. Rep. 578; 33 Gratt. 548.
Holt, President:
On appeal from a final decree pronounced by the Circuit Court of Mason county on the 16th day of May, 1893, dismissing plaintiffs' bill.
The substance of bill is that James T. Alexander departed this life suddenly on the 30th day of March, 1891, being the apparent owner of a tract of land of one hundred and thirty acres, situate in Mason county, on which he had resided with his wife for thirty years or more. They had no children, and his wife survived him. He left no will, hut on the 15th day of July, 1891, one Adam Grandstaff produced to the clerk of the county court, and had admitted to record, an instrument purporting to be a deed of conveyance to Mrs. Eva Davis, his infant married daughter, from James T. Alexander, dated the 18th day of February, 1891, for the land in question.. The widow and Mrs. Davis and her husband are in possession of the land.
The bill filed by the plaintiffs asserts this deed to be a forgery, and prays that it be declared void, and removed as a cloud from plaintiffs' title, that the widow be assigned dower, and the land partitioned among plaintiffs, decedent's brothers, etc., and his heirs at law, and that, in the meantime, the clerk of the county court be restrained from delivering up the original deed to any one until further order, and for general relief. Various persons are made parties defendant, and among them the said Adam Grandstaff. The bill was sworn to, and the injunction granted. Adam Grandstaff appeared and demurred, the demurrer was sustained, and Grandstaff was struck out as a defendant by amendment. The widow, Elmira Alexander, filed her answer, sworn to, alleging that the deed assailed was valid. Mrs. E. E. Davis was a married woman, only seventeen years of age. No guardian ad litem was appointed to defend the suit for her, but she defended in her own name, and filed her sworn answer. General replications were made to these answers, and depositions of witnesses were taken and filed, the cause came on to be heard on the 16th day of May, 1893, when the circuit court, being of opinion that the plaintiffs were not entitled to the relief prayed for, dismissed their bill, with costs, and plaintiffs appealed.
No question was raised as to right of a court of equity to grant relief in such cases by ordering the instrument to be delivered up and canceled; for, although the plaintiff might have brought an action of ejectment, yet such remedy would have not been adequate and complete, since the existence of the deed in an uncanceled state would necessarily have a tendency to throw a cloud over the title. See 2 Story, Eq. Jur. (13th Ed) 10, 11, notes; 3 Pom. Eq. Jur. § 1377. Therefore a bill in equity is maintainable for the cancellation, as a cloud on the title, of a forged deed, which, upon the strength of a false certificate of acknowledgment, made by an officer duly authorized, has been put on record. The fact of the forgery is an extrinsic fact, depending upon parol evidence, and the grantee in the deed, in making title thereunder, would not be bound to prove the genuineness of the signature of the grantor; but could repose on the statutory presumption arising from its certificate of acknowledgment; and this circumstance, independently of any other consideration, gives the court jurisdiction. 2 Beach, Mod. Eq. Jur. § 561. See Paper Co. v. O' Dougherty, 81 K Y. 474, 483; Byerly v. Humphrey, 95 N. C. 151. The whole case turns on the validity of this deed; and, on this point, seeing that the circuit court held the deed to be valid, there must be such a conflict in the evidence as, in the opinion of this Court, taking a different view as to its validity, renders it proper to direct an issue thereon to be tried by a jury in some circuit court; and we direct this to be done, because the case seems to involve a criminal offense, not on the part of the grantee, but on the part of the notary public who certifies to having taken the acknowledgment of the grantor, and because, in a case of so grave a character, the court below held that the plaintiffs had failed to show the deed to be invalid.
No case could better illustrate the fundamental importance of appointing guardians ad litem for infant defendants, whether they have been served with a process or not. The practice of serving them with process after they are fourteen years of age answers as a useful safeguard, and is based upon the presumed discretion of the infant, and especially his right, after that age, to nominate his own guardian proper. See section 4, chapter 82, Code, regulating such power of choosing his guardian. But such service is not necessary, and is only practiced because the infant may furnish some aid in the selection and appointment of his guardian ad litem., and formerly he could not be appointed until the infant had. in some mode been brought before the court, but that is no longer necessary. The appointment of the guardian ad litem is necessary, and his acceptance, to be shown by filing an answer, is also necessary the one somewhat like process issued, and the other like process served, which is necessary to give the court power to decree against him. See Hull v. Hull's Heirs, 26 W. Va. 1. His power is confined to that particular case, and his duty is to manage the case, and see to the interest of that particular infant, who must in some way, by appointment and answer, be specifically named or designated, for some defendant may appear to be an infant who is not so named in the bill, as in this case. For an omission to appoint a guardian ad litem, a decree against an infant will be reversed upon appeal. See Bank v. Ritchie, 8 Pet. 128. It is error to enter a decree against infant defendants without assigning them a guardian ad litem. McDonald v. McDonald, 3 W. Va. 676; Roberts v. Stanton, 2 Munf. 129; Swan v. Horton, 14 Gray, 179; 1 Beach, Mod. Eq. Prac. § 47, note 48. When the infant is a married woman, as in this case, it is nevertheless necessary to appoint a guardian ad litem, and it is customary to appoint her husband, if he is a defendant with her. 1 Daniell, Ch. Prac. (5th Ed.) 163; Colman v. Northcote, 2 Hare, 148. See O'Hara v. MacConnell, 93 IT. S. 150; Swing's Adm'r v. Ferguson's Adm'r, 38 Gratt. 548.
We have in this case what is certified to be a true and correct transcript of the record and...
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