Board of Education of Flatwoods Dist. v. Berry
| Decision Date | 29 October 1907 |
| Citation | 59 S.E. 169,62 W.Va. 433 |
| Parties | BOARD OF EDUCATION OF FLATWOODS DIST. v. BERRY. [*] |
| Court | West Virginia Supreme Court |
Submitted June 11, 1907.
Syllabus by the Court.
Documents made exhibits, which are parts of a bill in chancery, are of controlling force in case of discrepancy between them and the bill.
[Ed Note.-For cases in point, see Cent. Dig. vol. 19, Equity, § 385.]
A purchaser at a judicial sale is charged with notice of every fact appearing upon the face of the record affecting the title acquired by him.
[Ed Note.-For cases in point, see Cent. Dig. vol. 31, Judicial Sales, §§ 90-109.]
An act of the Legislature creating an independent school district is a public law of which the courts of the state will take judicial notice.
[Ed Note.-For cases in point, see Cent. Dig. vol. 20, Evidence, § 37.]
Where there has been a bona fide attempt to organize a public corporation with color of law and the exercise of corporate rights and franchises, the corporate existence cannot, as a general rule, be litigated in actions between private individuals, nor between private individuals and the assumed corporation.
[Ed Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 41-44.]
Proof of such corporate existence will be sufficient evidence of rights, except as against the state, where the inquiry is merely collateral, though put in issue by the pleadings.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 49-51.]
Where a corporation exists de facto, it may exercise the powers assumed, and the question of its having a right to exercise them will be deemed one which can be raised only by the state.
[Ed. Note.-For cases in point, see Cent. Dig. vol. 36, Municipal Corporations,§§ 34-44.]
Error to Circuit Court, Braxton County.
Action by the board of education of Flatwoods district against William H. Berry. Judgment for defendant, and plaintiff brings error. Reversed.
Hines & Kelly, for plaintiff in error.
Haymond & Fox and Jake Fisher, for defendant in error.
In an action of unlawful entry and detainer in the circuit court, the defendant, besides the general issue, by plea put in issue the corporate existence of the plaintiff. In a trial before a jury, after the plaintiff had introduced all its evidence, the circuit court sustained the defendant's motion to exclude such evidence and directed a verdict for defendant, which the jury returned accordingly. The subsequent motion of the plaintiff to set aside the verdict and award a new trial did not prevail, and judgment was rendered dismissing the plaintiff's summons. It does not distinctly appear from the record upon what particular ground this action of the court was founded.
The property sued for was a lot of 1 1/2 acres, with a schoolhouse thereon, conveyed to the board of education of Salt Lick District by W. F. Morrison and L. J. Berry, October 14, 1897, to which the plaintiff succeeded by virtue of its incorporation as the board of education of Flatwoods District. This lot was part of 54 acres conveyed to Morrison and Berry by W. E. Haymond, special commissioner, September 7, 1893. On October 14, 1897, Morrison and Berry conveyed the lot sued for to the board of education of Salt Lick district, and later on the same day to H. P. Pierce one acre out of the 54 acres, and on December 13, 1897, they conveyed to W. S. Stump 40 acres, more or less, described as being a part of the 54-acre tract. On February 21, 1899, the board of education of Salt Lick district conveyed to W. S. Stump 138 1/2 square rods and 58 square feet, part of the lot so conveyed to it by Morrison and Berry. The plaintiff therefore, if entitled to recover, was entitled to recover only that part of the property described in the summons exclusive of the portion thereof conveyed to Stump.
The defendant offered no evidence, except in connection with the cross-examination of the plaintiff's witnesses. The material parts of the record of the chancery cause of the Merchants' National Bank against J. W. Morrison and others were put in evidence, consisting of the summons, extracts from the bill, the deeds from Morrison and Berry to Pierce and Stump, and from Haymond to Morrison and Berry, abstracts from the commissioners' reports, and of the decrees of sale and confirmation pronounced therein, and the notice of sale by the commissioners appointed to make sale of the lands decreed to be sold. This record shows that the defendant, William H. Berry, on November 23, 1903, became the purchaser of the residue of the 54 acres conveyed to W. S. Stump by the said Morrison and Berry, and was awarded a writ of possession. The final decree of confirmation was entered December 4, 1903. Neither his deed nor the writ of possession was put in evidence; but the deputy sheriff who executed the writ testifies that when he put Berry in possession thereunder in June or July, 1904, the board of education of Flatwoods district was in possession of the property.
The defendant makes no other claim of title, or right to possession of the property sued for, except by virtue of the judicial proceedings referred to. This suit of the Merchants' National Bank was a suit instituted February 11, 1898, to enforce the liens of sundry judgment creditors of the plaintiffs therein. The deed from Morrison and Berry to the board of education of Salt Lick district was not recorded until November 25, 1903, two days after the purchase by William H. Berry, but before the decree of confirmation. These judgments, recovered and docketed in April, 1897, were undoubtedly liens upon the whole tract of 54 acres which the creditors had the right to enforce. But the question is not what they had the right to do, but what their suit accomplished, and whether the defendant acquired title therein to the lot of ground in controversy. The plaintiff was no party to that suit; nor was it a pendente lite purchaser, for the deed was made to its predecessor prior to the institution of the suit. True, the liens of the judgments accrued prior to the deed; but unless the lot in controversy was sold, and purchased by the defendant, he acquired no title thereto or right to possession thereof.
We must then look to the bill and proceedings in that suit to determine what was actually sold and purchased. The bill alleged that Berry and Morrison acquired title to the 54 acres from Haymond, commissioner, by deed of September 7, 1893, "a part of which they conveyed to H. P. Pierce the 14th of October, 1897, and the residue thereof to W. S. Stump on the 13th of December, 1897," and copies of these three deeds were exhibited with the bill. The deeds from Berry and Morrison to Pierce and Stump, however, by the very words of description, exclude therefrom the schoolhouse lot conveyed to Salt Lick district; and, although the bill perhaps intended to charge that the deed to Stump conveyed all of the 54 acres except that part conveyed to Pierce, yet the Stump deed itself, being exhibited with the bill, is of controlling force. Richardson v. Ebert (W. Va.) 56 S.E. 887, recently decided by this court. The first commissioner found that the judgments were liens only upon the one acre conveyed to Pierce and the 40 acres conveyed to Stump; the second, that Morrison and Berry conveyed the one-acre tract to Pierce as part of the 54 acres, and subsequently the residue thereof to Stump, and these two deeds are vouched for this finding. But, as we have seen, these deeds exclude the schoolhouse lot. The decree of sale adjudged that Haymond, commissioner, conveyed to Morrison and Berry a tract of 54 acres; that Morrison and Berry, October 14, 1897, conveyed one acre thereof to Pierce, and on December 13, 1897, conveyed the residue of said 54 acres to Stump; and that the judgments were liens thereon, and directed sale thereof. The notice of sale described the land as "one acre of land at Shaverville conveyed to H. P. Pierce by W. F. Morrison and L. J. Berry, and the residue of 54 acres at Shaverville conveyed to W. S. Stump by said Morrison and Berry." The decree of confirmation refers to this land as "the residue of 54 acres at Shaverville conveyed to W. S. Stump by W. F. Morrison and L. J. Berry"; no reference being made in this decree to the one acre conveyed to Pierce. If we include the Pierce lot, however, how can we say that the court sold, or intended to sell, any of the 54 acres except the one acre conveyed to Pierce and the residue of the 54 acres conveyed to Stump?
By its terms the Stump deed bounds and describes 40 acres, more or less, and by its description excludes the schoolhouse lot and any deed which the commissioners were authorized to make, and the writ of possession, were limited to the land described in these two deeds. We must presume, in the absence of the writ, that the writ of possession ran with the provisions of the decree. Moreover, not having been a party to the suit, the plaintiff should, before the writ issued, have been summoned to show cause why it should not surrender possession. Trimble v. Patton, 5 W. Va. 432; Paxton v. Rucker, 15 W.Va. 547; Williamson v. Russell, 18 W.Va. 612. A member of the board of education, who was present when the officer arrived and who had the key to the schoolhouse, stated to the officer that before surrendering the key he wished to see the president of the board, and, while he was absent for that purpose, the officer by force put the defendant in possession of the schoolhouse. This was an unauthorized and unlawful act, for which chapter 89 of the Code of 1906 gives the summary remedy here sought to the one so turned out of possession, no matter what right or title he had. The purchaser at a judicial sale is charged with notice...
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