Ayers v. Blair et al.

• Decision Date: 26 September 1885
• Citation: 26 W.Va. 558
• Court: West Virginia Supreme Court
• Parties: Ayers v. Blair et al.

26 W.Va. 558

Ayers

v.Blair et al.

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1885.

Decided September 26, 1885.

1. Land of greater value than $100.00 is sold by a special commissioner for less than $100.00, the former owner riles his bill to set aside said sale and recover the land, the circuit court dismisses his bill. Held:

The matter in controversy is the land and not the price for which it sold, and that being of greater value than $100.00, this Court has jurisdiction to review said decree. (p. 560.)

2. This Court will not dismiss an appeal upon the ex parte affidavit

of the appellee taken without notice to the appellant stating that the appellant has assigned his interest in the suit, and that the appeal is prosecuted for the benefit and at the costs of the assignee, (p. 561.)

3. The same person can not occupy the antagonistic positions of

seller and purchaser of the same subject; and, therefore, if a commissioner selling land under a decree of court becomes himself the purchaser, or has any understanding at the time of the sale, that he is to be interested in the purchase, the sale will be held void at the election of any party interested in the land. (p. 562.)

The opinion of the Court contains a statement of the tacts of the case:

P. W. Morris for appellant.

R. S. Blair for appellee.

Snyder, Judge:

Suit in equity instituted September 1, 1883, in the circuit court of Ritchie county by Barcus Ayers against R. S. Blair, Noah Rexroad and others to set aside the sale and conveyance of a tract of 162 acres of land purporting to have been made by Blair as special commissioner to said Rexroad. The original bill was on demurrer held insufficient, and the plaintiff by leave of the court filed an amended bill which was demurred to by the defendant, Blair, and the court by a decree entered March 8, 1884, sustained the demurrer and dismissed the bill. From this decree the plaintiff has appealed.

The material and essential averments of the original and amended bills are substantially the same and are in effect as follows: In two suits brought by certain judgment-creditors against the appellant, Ayers, and which were heard together, the said circuit court, in May 1868, entered a decree ordering the sale of a tract of 162 acres of land of the appellant to satisfy the judgments of said creditors, then amounting to over $250.00, and appointing the appellee, Blair, a special commissioner, to make said sale; that no sale was made of said land, but said commissioner, at the February term, 1882, made a report to the court in which be reported that he had, on August 11, 1879, made sale of the land to the appellee, Rexroad, for the price of $50.00, which was paid in full; that the court, in February 1882, entered a decree in said suits confirming said report and sale and appointing said Blair a commissioner to convey the land to said Rexroad, which he did by deed dated October 19, 1882; and that said report and decree were made more than thirteen years after the sale was ordered and without the knowledge of appellant.

The bill then charges that said land at the time of the alleged sale and confirmation was worth, at least, $800.00; that said report and alleged sale were fraudulent; that Blair, the commissioner, and Rexroad, the purchaser, entered into an illegal and fraudulent conspiracy and agreement by which they agreed with each other that the said Blair should report a sale of the land to Rexroad at the nominal price of $50.00, and have the same confirmed and a conveyance made to Rexroad, and that he would then convey the one half thereof to the said Blair; that, in pursuance of this fraudulent agreement, after the confirmation of the alleged sale, Rexroad, by deed dated August 13, 1883, did convey to Blair the undivided one half of said land with covenant of special warranty. The prayer is, that said alleged sale and deeds may be set aside, &c, &c.

The appellee, Blair, upon the authority of the decision of this Court in Burner v. Hawkins, 18 W. Ya. 309, has submitted and argued a motion for the dismissal of the appeal on the ground, that the amount in controversy here is less than $100.00, and, therefore, not sufficient to give this Court jurisdiction. The counsel must have misapprehended the decision in Rymtr v. Hawkins; for I can discover no question decided in that case which could form a precedent for the dismissal of this appeal. The cases are not at all analogous. That was a suit, brought to enforce a lien of a judgment lor $77.69 against the land of the appellant and the decree of the circuit court was, that unless said sum should be paid within thirty days the land should be sold to pay it. The value of land decreed to be sold did not appear. Upon these facts this Court decided, that as the decree against the appellant and the land was less than $100.00, she could by paying the amount of the decree prevent a sale of the land, thus making the value of the land an immaterial matter on the appeal and showing plainly that the...