Blankenship v. Mongini

• Citation: 105 W.Va. 530
• Decision Date: 08 May 1928
• Docket Number: (No. 6104)
• Court: Supreme Court of West Virginia
• Parties: George Blankenship v. Andy Mongini

105 W.Va. 530

George Blankenship

v.Andy Mongini

(No. 6104)

Supreme Court of Appeals of West Virginia.

Submitted May 1, 1928.

Decided May 8, 1928.

1. Judicial Sales -Judicial Sale to One Not Party to Proceedings Will Not be Disturbed After Confirmation, for Error Not Going to Jurisdiction, in Absence of Fraud or Other Adventitious Circumstance (Code, c. 132, § 8).

After confirmation of a judicial sale to one not a party to the proceedings, the sale will not be disturbed, in the, absence of fraud or other adventitious circumstance, for error which does not go to the jurisdiction of the court, (p. 531.)

(Judicial Sales, 35 C. J. § 160.)

2. Same: Departure by Court From Rules of Law or Procedure, After Acquiring Jurisdiction of Parties and Subject Matter is Not Jurisdictional Error Constituting Grounds for Setting Aside Judicial Sale.

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, (p. 533.)

(Judicial Sales, 35 C. J. § 159.)

3. Same -Inadequacy of Price Will Not Avoid Judicial Sale After Confirmation, Unless Clearly Importing Fraud.

After confirmation of a judicial sale, inadequacy of price alone will not avoid the sale, unless the inadequacy clearly imports fraud, (p. 533.)

(Judicial Sales, 35 C. J. § 164.)

4. Same! Highest Competitive Bid at Public Judicial Sale, Properly Advertised and Conducted, is Ordinarily Accepted as Fair Criterion for Value, in Absence of Contrary Evidence.

The highest competitive bid at a public judicial sale, properly advertised and conducted is ordinarily accepted by courts as a fair criterion of the value of the property sold, in the absence of evidence to the contrary, (p. 534.)

(Judicial Sales, 35 C. J. § 167.)

5. Same Burden of Proof Rests on Party Seeking to Avoid Judicial Sale.

The burden rests on one seeking to avoid a judicial sale, (p. 534.)

(Judicial Sales, 35 C. J. § 186.)

6. Equity In Suit to Foreclose Vendor's Lien, Plaintiff's Amended Bill, Supported by Affidavit, May be Treated as Special Written Reply, Controverting Defendant's Claim for Affirmative Relief Under Statute Relating to Pleading (Code, c. 125, § 36).

Point 3 of the syllabus of Hale v. Hale, 104 W. Va. 254, on the practice of courts to regard the substance of a pleading rather than its name, applied, (p. 531.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Raleigh County. Suit by George Blankenship against Andy Mongini. From a decree for defendant, plaintiff appeals.

Reversed and remanded.

C. M. Ward and Carl C. Sanders, for appellant. W. H. Rardin and W. W. Goldsmith, for appellee.

Hatcher, Judge:

Blankenship sold a lot to Mongini with covenants of special warranty and "the right to convey". Part of the consideration for the lot was paid in cash and a vendor's lien reserved for the balance. The vendee failed to pay the balance and this suit was brought to subject the lot to sale under the vendor's lien. In Mongini's answer to the original bill he admitted the purchase of the lot but alleged that Blankenship had no title to and no right to convey it, and that the title thereto was in the heirs of Ida S. Bolen, deceased, and prayed that his deed be cancelled and his payment on the purchase price refunded. Blankenship filed what he terms an amended bill, alleging that he purchased the lot at a judicial sale in the suit of Farley v. Bolen, et als.; that he obtained an absolute title to the lot by virtue of his deed from the commissioner in that suit; and that at the time he conveyed it to the defendant he had a perfect title to it. Mongini answered the amended bill and alleged that Blankenship did not acquire title to the lot by reason of his purchase in the Farley-Bolen suit. Blankenship then filed a second amended bill in which he detailed at length the proceedings in the FarleyJ3olen case, and filed copies of certain papers and decrees in that suit, Mongini countered with another answer in which he again avers that Blankenship did not have any legal or equitable title to the lot by reason of the proceedings in the Farley-Bolen suit. The defendant further alleged that he had never been allowed to take possession of the property nor receive any rents or profits from it, but did not state who had withheld the lot from him.

Defendant contends that each of his answers claiming affirmative relief against the plaintiff were based in part upon new matter; that plaintiff filed only a general replication to the first answer; that no replications were filed to the other answers; that no issue was raised upon the allegations in his second and third answers; and that by reason of section 36, chapter 125, Code, 'proof was not required, and his allegations must be taken as true. Section 36 provides "every material allegation of new matter in the answer constituting a claim for affirmative relief, not controverted by a special reply in writing, shall for the purposes of the suit, be taken as true, and no proof thereof be required." Where such an answer is verified section 38 of the same chapter requires the plaintiff to verify his special reply thereto. The material allegation calling for relief is the same in each one of the answers, to-wit, that the plaintiff had no title. Each answTer was verified. Plaintiff's first amended bill was supported by an affidavit, and may, therefore, be treated as the special reply in writing controverting defendant's claim for affirmative relief required by the statute. Hale v. Hale, 104 W. Va. 254, 258. The second amended bill was not verified and therefore cannot be so regarded. In the first amended bill plaintiff denied the allegation of no title in defendant's answer and set forth the manner in which he acquired his title. The subsequent charges of no right to convey made in defendant's second and third answers, are simply repetitions of the charge in the first answer, and may be treated either as surplusage or as sufficiently traversed by plaintiff's first amended bill. That first denial put the defendant on proof.

The sale to Blankenship having been made under a decree of a court, and the sale confirmed, Mongini admits that Blankenship's title is protected under section 8, chapter 132, Code, against any errors which are not jurisdictional. See Chapman v. Branch, 72 W. Va. 54, 58. He attacks the jurisdiction of the court to make the sale as follows:

(1) He charges that the bill in the Fariey-Bolen suit does not allege that the estate of Ida S. Bolen, (which owned the land in question), was indebted to Farley; that the exhibit filed with the bill shows that the claim of Farley was personal against J. B. Bolen; and that the decree entered in the case is against Bolen personally. The bill alleges that Farley acquired a judgment against the Administrator of Ida S. Bolen, deceased, on August 4, 1921, and files with the bill a certified copy of that judgment, wdiich is the exhibit to which defendant refers. The copy of the judgment shows that a recovery was had by Farley against J. B. Bolen "as Administrator of the estate of Ida S. Bolen, deceased". It further alleges that the judgment thus acquired is "a lien upon the real estate of the said Ida S. Bolen, deceased," The bill also alleges that the lot is all of the property of which Ida S. Bolen died seized and possessed, and prays that the lot be sold for the purpose of paying Farley's judgment. The decree adjudges that the judgment of August 4, 1921, is a valid and subsisting lien against the lot; it orders a recovery against Bolen as administrator of, etc., and directs that the lot be sold to satisfy the judgment. We are therefore of opinion that the bill sufficiently alleges a debt against the estate of Ida S. Bolen,...