Browning v. Browning
| Decision Date | 28 October 1919 |
| Docket Number | 3833. |
| Parties | BROWNING v. BROWNING ET AL. |
| Court | West Virginia Supreme Court |
Submitted October 21, 1919.
Syllabus by the Court.
The statute (section 19, c. 104, Code [sec. 4432]) which saves to a plaintiff the right to bring a new action on the same cause within one year after the dismissal, for any cause which could not be pleaded as a bar thereto, of a prior action brought in time, "notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought," applies only to those causes of action which, under the general statute of limitation applicable thereto, would otherwise be barred before the new action is commenced, and lengthens rather than shortens the period of limitation prescribed by the general statute. If there is no such bar, or if there is one whose limitation has not yet run against the cause of action, the section has no application, and nothing except laches or the running of such limitation will prevent the institution and maintenance of a second suit.
Whether laches does or does not operate to defeat enforcement of a right asserted is not always to be determined merely by a consideration of the time that has elapsed since the accrual of the right to sue.
Unless accompanied by circumstances affording a reasonable basis for presuming an intention on the part of the plaintiff to abandon the claim asserted in the suit, or such as render the transaction out of which the claim arose obscure, or render difficult, if not impossible, the production of evidence to defeat the claim and thereby prevent injustice, the mere postponement of the assertion thereof does not ordinarily warrant refusal of relief in equity.
Where in the meantime defendant or those claiming under him have recognized or acknowledged directly or impliedly the existence of the right asserted by plaintiff, such recognition generally excuses the delay of the plaintiff in suing to enforce such right.
A demurrer admits to be true the material facts set up in a pleading and all reasonable inferences or necessary presumptions fairly attributable to such facts.
A pleading is sufficient upon demurrer if it informs defendant of the nature of the demand made upon him, and states such facts as will enable the court to say that, if they are proved as alleged and in the light of all reasonable inferences fairly attributable thereto, they establish a good cause of action.
Appeal from Circuit Court, Logan County.
Suit by Jesse V. Browning against Minerva Browning and others. Demurrer to bill sustained, and suit dismissed, without reservation, plaintiff's bill of review for error apparent on the face of the record dismissed on defendant's demurrer, and plaintiff appeals. Reversed demurrers overruled, and cause remanded.
J. B Wilkinson and Butts & Minter, all of Logan, for appellant.
By three successive, but vain, efforts made in 1912 and in June and November of 1918, plaintiff endeavored to obtain a decree declaring a deed made by him to his brother, David T Browning, for 50 acres of land in Logan county, to be a mortgage to secure the payment of $600 to the grantee, rather than a grant to him of the land in fee simple absolute, as on its face it purports to be. The deed, the acknowledgment, and recordation thereof bear date as of August 7, 1903; the consideration expressed therein being "one dollar and other considerations" in hand paid, the receipt of which is acknowledged. Some time during the early part of October 1912, it appears from the allegations of the bill demurred to, plaintiff tendered defendant $600 and the interest that had accrued thereon in the meantime, and demanded a reconveyance of the land "pursuant to the agreement and understanding" had between them in 1903, but the grantee declined to accept the money tendered and to execute the reconveyance demanded. Thereupon ensued the first suit, which on November 4, 1912, plaintiff voluntarily dismissed, reserving in the dismissal order the right to institute and prosecute another suit based upon the same cause and for the same relief. This dismissal, according to the allegations of the bill, was due to the intercession of the father of the grantor and grantee, with the expectation of effecting a compromise and amicable settlement of the matters in controversy between them, but which they failed to consummate. Plaintiff then brought this suit at July rules, 1918, and to the bill then filed defendant demurred, and the court sustained the demurrer and dismissed the suit without reservation. Later in the same year plaintiff filed a bill of review for error apparent upon the face of the record, which terminated likewise upon defendant's demurrer thereto. Hence this appeal.
The only ground assigned as cause of demurrer to the second bill, as appears from the order of dismissal, and the only one assigned in argument by counsel, is "that at the institution of this suit more than one year had expired since the dismissal of a former suit on the same cause of action between the same parties"--this upon the supposition that section 19, c. 104, Code (section 4432), is decisive of the question here involved. The applicability of this section to a suit brought to impress upon a deed absolute on its face the character of a mortgage and to decree accordingly does not seem apparent. This is not an unusual, but a common, provision. It appears in many limitation statutes substantially embodied in the same language. It saves to the plaintiff the right to bring an action within one year after the abatement of a prior action brought in time for any of the reasons therein mentioned, or the reversal or arrest of a judgment therein recovered on a ground not preclusive of a new action on the same cause, or a dismissal for want of security for costs or for any other cause which could not be pleaded as a bar to the action, "notwithstanding the expiration of the time within which a new action or suit must otherwise have been brought." The enlarged remedy thereby provided applies in this state as well to suits in equity as to actions at law (Hevener v. Hannah, 59 W.Va. 476, 53 S.E. 635); but not so, it seems, in Virginia ( Dawes v. N.Y. P. & N. R. Co., 96 Va. 733, 32 S.E. 778). But obviously, as the language quoted above indicates, a statutory bar must exist and the necessity for invoking the exemption therefrom sufficiently appear before the privilege is available by way of extending the right to sue. If there is no such bar, or if there is one whose limitation had not run against the cause of action, nothing except laches will prevent the institution and maintenance of a second suit, especially where, as here, the order of dismissal reserved to plaintiff the right to renew his suit to obtain the relief sought by him in the first instance, though such reservation may not always be necessary in such case. Section 19 applies only to those causes of action which, under the general statute of limitation applicable thereto, would otherwise be barred before the new action is commenced, and lengthens rather than shortens the period of limitation prescribed therein. There is no statute of limitations in this state applicable to a suit such as this, and hence if plaintiff's right to sue is not barred by laches, but still exists, section 19 did not operate to effect a termination of such right to sue at the end of one year from the decree of dismissal. Instead such right continued and still continues, unless barred by laches.
Whether this equitable doctrine does or does not apply to defeat enforcement of the right asserted is not always to be determined merely by a consideration of the time that has elapsed since the accrual of the right to sue. Cranmer v McSwords, 24 W.Va. 594; Depue v. Miller, 65 W.Va. 120, 64 S.E. 740, 23 L. R. A. (N. S.) 775. Unless accompanied by circumstances affording a reasonable basis for presuming an intention on the part of the plaintiff to abandon the claim asserted in the suit, or such as makes the transaction out of which the claim is said to have arisen obscure, or renders it difficult, if not impossible, to produce evidence to defeat the claim and thereby prevent injustice, the mere postponement of the assertion of the claim does not ordinarily warrant refusal of relief in equity. Tazewell v. Saunders, 13 Grat. (Va.) 354; Tidball v. Shenandoah Nat. Bank, 100 Va. 741, 42 S.E. 867. If no substantial obstruction probably will appear to defeat a fair investigation of the merits of the claim preferred, and a just ascertainment of the...
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