Barbour, Stedman & Herod v. Tompkins
| Decision Date | 16 January 1906 |
| Citation | 52 S.E. 707,58 W.Va. 572 |
| Parties | BARBOUR, STEDMAN & HEROD v. TOMPKINS et al. |
| Court | West Virginia Supreme Court |
Submitted March 28, 1905.
Syllabus by the Court.
A decree that is appealable under clause 7 of section 1 of chapter 135 of the Code of 1899 as one adjudicating the principles of a cause, or that is final in such sense as to make it reviewable by bill of review, is conclusive of every matter decided by it, and of every matter which, by the rules of equity practice, the parties were bound to set up in reference to it, before submitting it for adjudication, and cannot be altered or disturbed, except by appeal or bill of review within the respective periods allowed therefor by the statutes.
After the expiration of the term at which such a decree was made and entered it cannot be materially altered, by the court which pronounced it, as to anything so decided or deemed in law to be thereby concluded, except upon some proceeding instituted in said court for setting aside and annulling the same or correcting error therein.
After the expiration of the term at which such a decree has been pronounced, the same cannot be reopened for the reception of pleadings setting up defenses as to any matter so decided or concluded. A defendant has no right of election to interpose his matters of defense singly and take separate successive trials and adjudications thereon. By allowing a cause to be decided without having set up a defense, or any one or more of his defenses, he is deemed to have waived all matters so withheld.
When this court reverses a decree as to a matter finally determined thereby, and remands the cause, with direction to enter a particular decree as upon the merits of the subject-matter thereof, the mandate of this court is final and conclusive upon all parties as to all matters and things so directed, and no new defenses, existing and known at the date of the decree so reversed, can be entertained or heard in opposition thereto.
A decree made in a suit brought to enforce the liens of judgments and a deed of trust, fixing the amounts and priorities of the liens, decreeing payment thereof, and directing a sale of the debtor's land on default of payment, is final and conclusive as to the amounts of the debts after the expiration of the term at which it is pronounced, and an answer praying the elimination of usury from one of the debts so adjudicated cannot be received thereafter.
When the other terms of the description in a deed are equivocal and uncertain as to the identity of the land, and the description by quantity, location, and ownership, viewed in the light of admissible extraneous evidence, makes clear the intent of the grantor to convey only the land so described by quantity, location, and ownership, the deed is not void for uncertainty, and will be given effect according to the manifest intent as gathered from the whole instrument.
If after a decree of sale of real estate to satisfy liens thereon, a lease of part of the same for mining purposes be executed by consent of all interested parties, but under an agreement that the execution of such lease shall not prejudice the right of any creditor to ask for sale of the land subject to the lease, and by reason of development of the land under the lease its market and rental values are largely increased, sale thereof will not be delayed for an inquiry as to whether its rents and profits will be sufficient to discharge the liens thereon within five years.
Appeal from Circuit Court, Kanawha County.
Bill by Barbour, Stedman & Herod against William H. Tompkins and others. Decree for plaintiffs, and William H. Tompkins and H P. Tompkins appeal. Affirmed.
Price Smith & Spilman, for appellants.
Mollohan, McClintic & Mathews, for appellees.
By reference to 31 W.Va. 410, 7 S.E. 1, it will be seen that the cause of Barbour, Stedman & Herod v. Wm. H. Tompkins and others was in this court in the year 1888 on an appeal from a decree rendered in said cause on the 16th day of July, 1886, which said decree was reversed on account of errors specified in the opinion, and remanded to the circuit court of Kanawha county. Afterwards, on the 11th day of January, 1889, pursuant to the mandate of this court, a new decree was made. For the correction of manifest errors of that decree, another was entered on the 16th day of April, 1891. Afterwards two sales of the real estate of Wm. H. Tompkins were made under the decree as corrected. One of these, made April 12, 1894, for the sum of $20,000, was subsequently set aside on account of inadequacy of price. The other, made on the 30th day of October, 1895, for the sum of $17,000, was also set aside on the same ground. On the 16th day of June, 1899, under an order of the court, 400 acres of the land, situate on Kelly's creek, was leased to J. D. Harris, acting for the Cedar Grove Colliery Company, for coal mining purposes, at a minimum royalty or rent of $2,500 per year after the first two years. On April 30, 1902, Wm. H. Tompkins tendered, and was permitted to file, an answer in the nature of a cross-bill, praying, among other things, relief as to usurious interest provided for in the debt due from him to A. F. Mathews. Upon this answer process was awarded and executed. Later H. P. Tompkins, J. G. W. Tompkins, and Ellen C. Tompkins also filed answers, praying affirmative relief. On the 19th day of November, 1902, A. F. Mathews, having excepted to the answer of Wm. H. Tompkins and given notice of a motion to strike out the same, moved the court to strike from the record said answer and also the papers filed as answers of H. P. Tompkins, J. G. W. Tompkins, and Ellen C. Tompkins. Upon these motions the court adjudged that said papers should not be treated or regarded as answers; but, as they brought to the attention of the court matter calling for judicial action in the cause, they should be permitted to remain in the record as affidavits. By these affidavits it was shown to the court that there was confusion and uncertainty as to what lands were subject to the lien for the debt due said A. F. Mathews; and to ascertain and determine this question the cause was referred to Joseph Ruffner as special commissioner. On the 20th day of September, 1904, said special commissioner having returned his report, a decree was pronounced declaring the lien for said debt to be limited to a certain portion of the land of said Tompkins, appointing George E. Price a special commissioner to act in lieu of S. L. Flournoy, then deceased, with others who had been previously appointed, as special commissioner to make sale of the real estate, and directing such sale to be made unless the defendant Wm. H. Tompkins, or some one for him, should pay off and discharge the liens on the lands, with interest and cost of the suit, within a certain time named. From this decree the defendants Wm. H. Tompkins and H. P. Tompkins have appealed, assigning, as grounds of error, the refusal of the court to allow the Mathews debt to be purged of its usury, and to refer the cause to a commissioner to ascertain whether the rents and royalties in the hands of the court, together with the rents, issues, and profits of the lands, will discharge the liens thereon within five years. They also complain of a clause in the decree authorizing the commissioners to make a private sale of the land. Mathews has cross-assigned error because the court has held that his deed of trust does not include a certain tract of land upon which he claims a lien by virtue of it.
From the opinion delivered on the former appeal, as well as from the record, it appears that the debtor, Wm. H. Tompkins, did not prior to the rendition of the decree of July 16, 1886, object to the allowance of the usurious interest provided for by his contract in such manner as to enable the court to expunge it. No relief in that respect was subsequently asked by him until after the decrees of January 11, 1889, and April 16, 1891. His first attempt to object by way of answer or any pleading was made on April 30, 1902, long after these decrees had been entered. The question thus presented is whether usury is such a matter of defense as the defendant was bound to plead before final decree, and whether these decrees are final so as to bar all matters of defense that were not set up before they were pronounced. For the appellants it is said the right to have usury expunged is a defense exceptional in its nature, and will be indulged by a court of equity under circumstances which would preclude the entertainment of other defenses, and also that these decrees are interlocutory and not final in the true sense of the terms.
Failure to sustain the first proposition would necessarily class this defense with all others. If, to be available in a court of equity, it must be pleaded as promptly as any other defense and may be lost by failure to so claim the benefit thereof, the position of the appellants cannot be sustained unless the decrees are wanting in finality. There are some cases which are said to show that courts have been indulgent as to this defense. In Ellzey v. Lane's Ex's, 4 Munf. 66, it was allowed after a decree by default foreclosing a mortgage, and after the Supreme Court had reversed a decree allowing a bill of review to be filed. The previous history of the case will be found in 2 Hen. & M. 589, and 4 Hen. & M. 504. Judge Tucker said in 2 Hen. & M. p. 592, that the bill had been taken for confessed and a decree of foreclosure made, but not executed by sale. In 4 Hen. & M. the report of the decision of the superior court of chancery shows that, after the case went back, a scire facias was sued out to revive the suit, the plaintiff having died, and that the defendants set...
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