Blankenship v. Mongini, (No. 6104)

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

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.

[105 W.Va. 530]

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.)

[105 W.Va. 531]

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

[105 W.Va. 532]

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...