Burley v. Weller et al.

• Decision Date: 30 November 1878
• Citation: 14 W.Va. 264
• Parties: Burley v. Weller et al.
• Court: West Virginia Supreme Court

14 W.Va. 264

Burley

v.Weller et al.

Supreme Court of Appeals of West Virginia.

Decided November 30, 1878.

1. Matters not charged in the bill or averred in the answer, and not in issue in the cause, are not proper to be considered on the hearing.

2. If a party desires relief in equity against the endorsement of a recorder or clerk on a deed on account of the same being a mistake or false and fraudulent, and desires the court to adjudicate, whether such mistake or fraud in such endorsement is snficientto entitle him to relief in the cause, and to grant the relief, he must allege such mistake or fraud sufficiently in his bill to put the fact in issue in the cause.

Appeal from and supersedeas to a decree of the circuit court of Marshall county, rendered on the 8th day o f August, 1877, in a cause in said court then pending, wherein James L. Burley was plaintiff, and George W. Weller and another were defendants, granted on the petition of the said Burley.

Hon. Thayer Melvin, judge of the first judicial circuit, rendered the decree appealed from.

The facts of the case sufficiently appear in the opinion of the court.

Davenport & Dovener, for appellant.

J. Dallas Ewing, for appellees, relied on the following authorities:

Story's Eq. Pl. §§473, 474; Code, ch. 130, §23; Code ch. 74, §§5, 8, 10; 4 Hand. 212; 2 Lorn. Dig. 489; 44 Cal. 335; 12 Gratt. 325; 44 Mo. 309; 11 Gratt," 321, 225.

Haymond, Judge, delivered the opinion of the Court:

This is a bill in equity with injunction filed by the plaintiff against George W. Weller and J. Dallas Ewing. The plaintiff in his bill alleges substantially, that on the?8th day of December, 1868, he purchased from T. M. Walker and wife, by deed of that date, a tract of land situate in Marshall county in this State, containing one hundred and seventy-two acres on Fish creek and Boreman; and he states the boundaries thereof specifically, being the same land, as plaintiff alleges, conveyed to T. M. Walker by Joshua and Samuel Godard; all of which, he says, "will more fully appear by the deed from said Walker to the said plaintiff herewith filed and marked Exhibit 1, and prayed to be considered" apart of the bill.

Plaintiff further alleges, that the defendant, J. Dallas Ewing, is proceeding to sell the said property under and by virtue of some pretended deed of trust to said Ewing as trustee from one R. C. Leep to secure the defendant, George W. Weller, a certain sum of money in said pretended deed of trust mentioned, which pretended deed of trust is recorded in Deed book 17, page 511 of the records in the county clerk's office of Marshall county, an attested copy thereof is filed with the bill as an Exhibit marked No. 2, and prayed to be considered as a part of the bill."

The bill further alleges, that said Ewing has advertised said property to be sold on the 20th day of October, 1873, at 10 o'clock a. m. A copy of the advertisement of sale is filed as an Exhibit marked No. 3; that said pretended deed of trust was executed by the said Leep to the said Ewing to secure the defendant, Weller, as aforesaid, when the said R. C. Leep had no title or claim upon said property, the same property having been be- fore that time conveyed by the said R. C. Leep to the "said Walker, on the 19th day of September, 1868, and duly admitted to record in the recorder's office of Marshall county a few days after the last mentioned date; "all of which appears by reference to the original deed marked Exhibit 4, and prayed to be considered as apart of the bill."

The plaintiff therefore prays, that the said sale by the said Ewing may be perpetually enjoined, and that the said deed of trust may be declared null and void; and he prays such further relief as the court may see fit to grant.

The injunction was granted October 20, 1873; and the bill was filed on the 1st Monday in November, 1873.

The deed, Exhibit No. 1, filed with the bill, from said T. M. Walker to the plaintiff for said tract of land is dated the 18th day of December, 1868, and was acknowledged on the same day and year, and was admitted to record in the recorder's office on the 22d day of January, 1869. The deed of trust, Exhibit No. 2, filed with the bill, (being a copy of the deed of trust from said R. C. Lee]) to J. Dallas Ewing,) is dated the 27th day of November, 1868, and was acknowledged on the same day and year, and admitted to record in the recorder's office of Marshall county on the 11th day of December, 1868. The deed, Exhibit No. 4, filed with the bill, being the deed from said Leep to Mifflin Walker for said tract of one hundred and seventy-two acres of land is dated the 19th day of September, 1868, and was acknowledged on the 19th day of September A. D., 1868, before George O. Davenport a notary public in and for the county of Ohio, State of West Virginia, on the day and year last aforesaid. The certificate or endorsement of the recorder of the admission of the last named deed to record is as follows:

"West Virginia, Marshall County, 1 Recorder's Office, January 13, 1869.

"This deed from R. C. Leep to Mifflin Walker was this day received in my office, and being duly certified, by a notary public of Ohio county, the said deed and cer-" tificatcs are admitted to record.

"Teste: Thos. Finn, Recorder"

It appears, that on the 30th day of March, 1874, the defendants, Ewing and Weller, appeared in court, bytheir counsel, and filed their joint answer to the plaintiff's bill which is substantially as follows, to-wit: "These respondents, for answer to said bill, or to so much thereof as they deem it material, for them to answer, answer and say, they admit the purchase and deed of the 18th of December, 1868, by complainant, as stated in the bill, but deny that complainant took any legal or equitable title to the lands described in said bill. Defendant also admits that the lands described in the said bill are the same lands conveyed to M. Walker by Samuel and Joshua Godard, as recited in the bill; but defendants here charge, that the said Mifflin Walker and wife conveyed the same land claimed by complainant and described in the bill by deed in fee simple, dated on the 13th day of December in the year 1867, which deed was duly acknowledged on the same day and year, and was duly admitted to record in the recorder's office of Marshall county on the 21st day of July, 1868; all of which will more fully appear by reference to a duly certified copy of said deed taken from the records now in the office of the clerk of the county court of Marshall county, marked No. 1, herewith filed and prayed to be taken as part of this answer. The deed from Walker and wife to Leep was thus at least two years older than the one made to complainant.

The defendants admit, that J. Dallas Ewing was proceeding to sell the land under a deed of trust from R. C. Leep to J. Dallas Ewing, trustee, dated on the 27th day of November, 1868, and duly recorded in the recorder's office of Marshall county, on the 11th day of December, 1868, after having been first duly acknow edged by said Leep; (a copy of which deed of trust is filed with com- plainant's bill and is prayed to be taken as part hereof); but these defendants deny, that the said trust is a pretended deed of trust, and on the contrary aver and affirm, that the said deed is, and was at the time it was taken, a bona fide deed of trust, given by said Leep to secure the defendant, Weller, a bona fide debt of the amount and kind described in said deed, and that the whole, and every part thereof, is still due and unpaid. The defendant admits that said Ewing had advertised to sell the said land, as trustee, on the 20th day of October, 1873, and avers that he had expended $35.00 in advertising the same, when enjoined by this honorable court.

" Defendants admit, that the records now show, that R. C. Leep had reconveyed the said land to said Walker by deed dated the 19th day of September, 1868, but if the said last named deed was made and acknowledged as dated, which defendants do not know and do not either affirm or deny, but of which they call for full proof, yet they here aver and charge the fact to be, that said reconveyance was not recorded in the recorder's office of Marshall county until the 13th day of January, 1869; and that the said last named deed was not recorded until after the making and recording of the said deed of trust to said Ewing. And they further say that neither the said Ewing nor said Weller had any knowledge, that said Leep had reconveyed, the same to said Walker, nor had they any notice of the same.

" Respondents aver and charge the fact to be that the said deed from R. C. Leep to said Walker, dated on the 27th day of November, 1868, is void as to said Weller, who was and is a creditor of said Leep, and is void as to said Ewing, as trustee, neither of respondents having had any notice thereof, because it was not duly admitted to record in the county of Marshall, wherein the property embraced therein lay, until after the conveyance made by said Leep was made to said Ewing, as trustee, to secure said Weller the payment of money therein men-* tioned, which was made, acknowledged and duly record- ed in the county of Marshall wherein the land described* in said deed of trust lies.

" Respondents having answered, pray, that the injunction granted in chambers on the 20th day of October, 1873, in this cause be dissolved, and that said land mentioned and described in complainant's bill be sold to pay the debt due said Weller as secured to him by said deed of trust to said Ewing, and to recover costs against complainant. And respondents further pray for such other and general relief in the premises as the nature and circumstances of their case may require, as to the court may seem fit, and that they may be hence discharged, &c, &c." The bill and answer are each verified by affidavits.

The deed, Exhibit No. 1, filed with the answer of defendants, is dated the 13th day of December, 1867, being the deed from Mifflin...