Buskirk v. Sanders
| Citation | 73 S.E. 937,70 W.Va. 363 |
| Parties | BUSKIRK et al. v. SANDERS et al. |
| Decision Date | 13 February 1912 |
| Court | Supreme Court of West Virginia |
Submitted June 9, 1911.
Syllabus by the Court.
If any affirmative equitable relief is necessary to a full settlement of the controversy a court of equity will interfere, and entertain a suit for such relief, and enjoin the action at law.
The mere existence of a legal remedy is not of itself sufficient ground for refusing relief in equity by injunction; nor does the existence or non-existence of a remedy at law afford a test as to the right to relief in equity. It must also appear that it is as practical and efficient to secure the ends of justice and its prompt administration as the remedy in equity.
Though defendant has legal and equitable defenses he has the right as a general rule to go into a forum where he may have the benefit of all his defenses, and thereby be afforded complete protection against the claims of his adversary.
If a guardian, of his own volition and without authority of the court, sever standing trees from his wards' lands, they are thereby converted into personal property; and his duty then, though wrongfully imposed, is not to suffer the timber to remain on the ground to rot and perish, but to sell it and account to his ward for the proceeds, and the purchaser thereof from the guardian, in good faith, and for a fair price, will acquire good title thereto.
To deprive one of his right of recourse upon or contribution from one with whom he may have co-operated in the wrongful act of cutting timber from another's lands, such act must have been malum in se.
If timber trees be cut from a ward's land, without fraud and in good faith, and by permission of his guardian, no trespass is committed, and the infant, even after the guardianship has ceased, must look to the guardian for compensation for the timber taken.
A guardian, without previous order of the court, unless for necessaries, is not entitled to credit for disbursements out of the principal of his ward's estate. Such necessaries may include necessary repairs on his ward's houses fences, etc., but not permanent improvement.
If a guardian out of her own money, or money obtained from another, and for which she is liable, pay purchase money lien or other debts for which the land of her ward is liable, she or her estate, is entitled to be subrogated to the rights of the creditors whose debts have thus been discharged.
With all parties or their legal representatives before it, a court of equity may in a proper case take a short cut in re-adjusting complicated and involved accounts so as to do equity between the parties.
Appeal from Circuit Court, Wyoming County.
Bill in equity by U. B. Buskirk and another against Herbert W Sanders and others. From a decree for defendants, plaintiffs appeal. Reversed and rendered.
Jno. M McGrath, C. E. Pyle, Jas. H. Gilmore, and Campbell, Brown & Davis, for appellants.
J. A. Toler, M. F. Matheny, and Sanders & Crockett, for appellees.
The preliminary injunction awarded plaintiffs, restraining defendants from prosecuting their suit at law against them to recover the value of timber alleged to have been taken from their land, was by the final decree on demurrer and motion of defendants, wholly dissolved and the bill dismissed.
The grounds of demurrer relied on here, are: First, that plaintiffs had already submitted themselves to the jurisdiction of the court in the suit at law; second, adequate remedy at law; third, want of equity, and, fourth, other reasons to be assigned.
The theories of the four special counts of defendants' declaration are as follows: First, that plaintiffs themselves sold the timber trees to defendants, and that the latter cut, and carried them away, and in consideration thereof promised to pay plaintiffs therefor the sum of $25,000.00: Second, that plaintiffs had before that time, at the special instance and request of defendants, bargained and sold the timber trees to defendants, who had cut and carried them away, and in consideration thereof had promised to pay plaintiffs what they were reasonably worth: Third, that plaintiffs being the owners of a tract of 3,000 acres, on which said timber trees stood, defendants had cut and carried them away, whereby they had become indebted to plaintiffs the value thereof, alleged to be $25,000.00: Fourth, that plaintiffs had inherited said land from their father, J. O. Sanders, deceased, and that defendants had entered into a contract with their mother, the administratrix of their father's estate, whereby they purchased from her, with notice of her want of authority, said timber trees, and that pursuant thereto they had cut down, removed and sold said trees in the market, but took no title thereto, well knowing the same belonged to plaintiffs, whereby they became indebted to plaintiffs in the sum of $25,000.00, the value thereof, and which they thereafter in consideration of the premises faithfully promised to pay plaintiffs.
Appellants admit that prior to filing their bill they appeared to said action at law, demurred to the declaration, and took leave to file special pleas.
Besides the prayer for an injunction, there is a prayer that plaintiffs be adjudged not liable to pay a second time for said timber; that it be ascertained, by a commissioner, what disposition was made by Ida Sanders of the money paid her therefor, with all the facts in relation thereto; that it be also adjudged that all expenditures for repairing the dwelling house, fences, barns and other improvements on the land descended to defendants, were for their benefit; that if plaintiffs, who in good faith, and without notice that said timber had been taken from defendants' lands, purchased the same, and paid full market price therefor, should in any event be again held liable therefor, the estate of said Ida Sanders be decreed to refund to them the amount so paid, and that defendants, her wards, and as distributees of her estate, be charged in equity, when ascertained, with the balance on settlement of her guardianship accounts, and with the amount received by them as distributees of her estate, and with the amount expended by her, out of her own funds, in excess of assets, in paying debts in repairing and improving their lands, and that their liabilities thereby incurred to her estate be offset against the liability, if any, of plaintiffs to them.
Defendants have apparently abandoned the first point of their demurrer, though fully argued, with citations of authorities, in the brief of appellants' counsel, it is not referred to by counsel for appellees or discussed by them in their brief. We will not further notice it therefore.
The material facts well pleaded in the bill and taken for true on demurrer, present the following propositions relied on as a basis for equitable relief:
First, that the timber was not cut or removed by plaintiffs, but by defendants' mother and guardian, having, by virtue of section 7, chapter 82, Code 1906, the care and management of their estate, real and personal, and who after severing said timber sold and delivered the same to plaintiffs, at the place of delivery, and that they in good faith paid her for same, the full market price therefor, and that she and not they, if any one, should be rendered liable to defendants therefor, and for any waste committed; that if this, a legal defense, be not sustained, they, nevertheless, have complete equitable defenses not available at law, which they are entitled to interpose, namely, that should they, for any reason, be rendered liable to defendants for said timber, their mother and guardian would become liable to them for the amount recovered; and as defendants, as alleged, would be liable to her estate on settlement of her guardianship accounts, for moneys paid out for necessary repairs and improvements on their lands, and for their maintenance and education, in a large sum; and also in settlement of her administration accounts, as administratrix of their father's estate, for money paid out beyond assets, to discharge a lien on their lands for purchase money, and to pay borrowed money and other debts for which his estate was liable, alleged to be about $1,800.00; and as they also as distributees of her estate had received about $3,700.00, and could be required to refund the same, to pay debts, their claim against appellants, if valid, should in equity be offset by her liability to them.
The first inquiry is, has equity jurisdiction where defendant has a legal and also an equitable defense? Little need be said in affirmance of this proposition. Plaintiffs might fail in their legal remedy, and yet if their several grounds of equitable relief be good, they should prevail. To make these equitable defenses available settlements of the guardianship, and administration accounts of defendants' mother, would be necessary, involving an ascertainment of the value of any repairs, or improvements, if allowable, on the lands, and the amount expended by her in their maintenance and education, and which could not be done on the trial of the action at law.
Though one have a defense at law, yet if it be doubtful and he also have equitable defenses, and his legal defense would not be as adequate and certain as in a court of equity, he may go into equity, at once, without awaiting the result of the lawsuit, or even being compelled to confess judgment at law. Gas Co. v. Window Glass Co., 63 W.Va. 266, 61 S.E. 329; Eastern Oil Co. v. Coulehan, 65 W.Va. 531, 64 S.E. 836. "If any affirmative equitable relief is necessary to a full settlement of the controversy and to a complete protection of defendant's rights, a court of equity will interfere, and entertain a suit for...
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