Cable v. Cable

• Decision Date: 05 April 1949
• Docket Number: (CC 744)
• Court: West Virginia Supreme Court
• Parties: Bertha Margaret Cable, Admx., Etc., et al. v. Malin Levi Cable, et al.

132 W.Va. 620

Bertha Margaret Cable, Admx., Etc., et al.

v.Malin Levi Cable, et al.

(CC 744)

Supreme Court of Appeals of West Virginia.

Submitted January 12, 1949.

Decided April 5, 1949.

1. Judgement

A void judgment or decree is a mere nullity and may be attacked at any time in any court whenever any claim or right is asserted under it.

2. Statutes

Code, 56-3-26, and Code, 38-7-43, should be read in pari materia.

3. Rehearing

Under Code, 56-3-26, an unknown party or other defendant in an action at law, suit in equity, or other judicial proceeding, who has not been served with process in this State, and did not appear in the case before entry of the judgment, decree or order in said action, suit, or proceeding, or the representative of such, "may, within two years from that date, if he be not served with a copy of such judgment, decree or order more than eight months before the end of such two years, and if he was so served, then within eight months from the time of such service, file his petition to have the proceedings reheard in the manner and form provided by" Code, 38-7-43. The right of a party or defendant, or representative of such, who is within the statute, to a rehearing is absolute, and where a judgment, decree or order is not void, Code, 56-3-26, and Code, 38-7-43, provide the only remedy to a party to whom the statutes apply.

4. Equity

"Under the prayer for general relief, the court should grant such relief as the plaintiff's cause entitles him to, not inconsistent with the prayer for specific relief." Custer v. Hall, 71 W. Va. 119, pt. 9 syl.

5. Fraudulent Conveyances

A court of equity in this State has jurisdiction, as against nonresidents, upon whom constructive service has been had by an order of publication, to set aside allegedly fraudulent deeds and conveyances of land within its jurisdiction, the decree of the court therein operating only in rem, or perhaps more accurately stated as a decree quasi in rem. In such suit, in the event the conveyances are set aside, the court may, under Code, 55-12-7, in the exercise of its jurisdiction in rem or quasi in rem, appoint a commissioner to convey title to the land in question to the parties entitled thereto, which conveyance will operate "as effectually and completely as defendant himself could have done." Birch v. Covert, 83 W.Va. 752, 754.

6. Jurisdiction

Where a suit in equity is properly brought as to land within the jurisdiction of a court of general jurisdiction against nonresidents of the State, who claim or have claims to the land but who have not appeared but have been served constructively by order of publication duly executed or by actual service outside the State, and the court enters final decree in such suit without sufficient evidence, such decree is erroneous, not void, but having been entered by a court of general jurisdiction, is not subject to collateral attack.

7. Parties

A trustee in a deed of trust, through whom an allegedly fraudulent conveyance has passed under a trustee's sale, who has no personal interest in the land conveyed by the trustee's sale and no warranty to defend, is not a necessary party to a suit to set aside the conveyance on the ground of fraud.

8. Statutes

Code, 56-3-26, applies to a decree entered in a suit in equity, whether the jurisdiction of the court is concurrent with that of a court of law or is exclusively equitable.

9. Statutes

The time provisions provided in Code, 56-3-26, read in connection with Code, 38-7-43, do not constitute a statute of limitation. The time, as provided by the statute, is inherent in the right itself and part and parcel thereof, and, where the prescribed time has elapsed, the right to a rehearing provided by Code, 56-3-26, is not technically barred, but, by the very passage of time, it has simply expired.

Certified from Circuit Court of Hancock County.

Suit to set aside decrees by Bertha Margaret Cable, administratrix etc., and others, against Malin Levi Cable, and others. The circuit court overruled the defendant's demurrer to the bill of complaint, and the case was certified.

Ruling reversed.

A. E. Bryant and A. C. Schiffler, for plaintiffs.

Handlan, Garden, Mattheivs & Hess, G. Alan Garden, and James P. Clowes, for defendants.

Riley, Judge:

This certificate involves the ruling of the Circuit Court of Hancock County in overruling a demurrer to a bill of complaint filed in 1946 by Bertha Margaret Cable, as administratrix of the estate of Davis Eldridge Cable, Bertha Margaret Cable, Margaret Cable (who is the same person as Bertha Margaret Cable), Frances Nelson Brumrnel, Dora Nelson and Grace Nelson Hoberg against Malin Levi Cable and others, praying that two several decrees of the Circuit Court of Hancock County, dated September 9, 1941, and October 20, 1941, respectively, be set aside, which decrees were entered in a former suit in which Malin Levi Cable, Marie Cable (1st), Bert Cable, Marie Cable (2d), Elizabeth Cable, Porter Alexander, George Dunlop, Jessie Cable and Bessie Cable were plaintiffs, and the present plaintiff's were defendants, the latter having been proceeded against by order of publication.

The bill of complaint in the former suit alleged that on May 11, 1907, Malin Levi Cable, Curtis Cochran Cable and George Stewart Cable, three of the four sons and devises of William T. Cable, deceased, at the instance and upon the false representation of the fourth son, Davis Eldridge Cable, executed a deed of trust to George L. Bambrick, Trustee, conveying their three-fourths interest in a tract of land in Hancock County, containing seventy-three acres, three roods, and thirty-seven perches, more or less, to secure grantor's joint note payable to Davis Eldridge Cable for $840.00; that the note and deed of trust were made upon the representation by Davis Eldridge Cable that the amount of the note, together with the sum of $280.00 to be contributed by him, would pay a purported claim of Emma J. Adams, whom he represented to be a creditor of the estate of William T. Cable, deceased, in the amount of $1,120.00; that the deed of trust was to be satisfied by Davis Eldridge Cable from the rents, income and profits derivable from the estate of William T. Cable, deceased; and further that substantial sums of money as rents, income and profits were realized from the property, but were not applied to the indebtedness in accordance with the representation made upon the execution of the deed of trust; and that Davis Eldridge Cable did not pay the creditor, Emma J. Adams, the sum of $1,120.00, but effected a settlement with her in the amount of $577.50, which sum was paid from the William T. Cable estate.

The bill of complaint in the former suit further alleged that on September 20, 1933, Davis Eldridge Cable assigned the note and deed of trust to his wife, Bertha Margaret Cable, who, following the death of her husband, as the owner and holder of the note, requested Bambrick, Trustee, to make sale; that at the Trustee's sale, Margaret Cable (Bertha Margaret Cable) purchased the three-fourths interest in the land embraced in the deed of trust and received a deed therefor; that on March 19, 1936, Margaret Cable conveyed her interest to the plaintiffs, Frances Nelson Brummel, Dora Nelson and Grace Nelson Hoberg; that the several plaintiffs, other than Mai in Levi Cable and Marie Cable (1st), his wife, are the heirs at law of George Stewart Cable and Curtis Cochran Cable, deceased; that all of the named plaintiffs, as well as the defendants, are nonresidents of the State of West Virginia; that only very recently did plaintiffs learn of the alleged fraud; and that they are without remedy except in a court of equity.

Although the foregoing bill of complaint is drawn primarily for the purpose of having the several conveyances set aside on the ground of fraud, the prayer is that the defendants be required to answer; that an accounting regarding the activities of Davis Eldridge Cable and Bertha Margaret Cable, administratrix, be had; that defendants be enjoined from making sale or otherwise disposing of the real estate involved; that the rights and interests of plaintiffs be determined; and for general relief. There is also a further prayer that the conveyances be set aside as clouds on title.

Decrees were entered in the former suit on September 9, 1941, and October 20, 1941, the latter of which granted the relief prayed for in the bill of complaint. These are the decrees sought to be cancelled by the bill of complaint of Bertha Margaret Cable, administratrix, and others.

It is admitted in the present bill of complaint that plaintiffs, who had been proceeded against in the suit of 1941 by order of publication, first obtained actual knowledge of the entry of the two decrees on or about March 7, 1944, almost two years and five months from the date of the entry of the decree of October 20, 1941. That suit was not instituted until July, 1946, or two years and four months after the date plaintiffs admittedly obtained actual knowledge of the entry of the decrees and about four years and nine months from the entry thereof.

The present bill of complaint, in addition to the plaintiffs in the 1941 suit, impleads George L. Bambrick, Trustee, and Charles E. Tonry and William T. Fahey, the latter two being attorneys, as defendants. In regard to these three parties the bill charges that Bambrick, Trustee, had not been made a party in the former suit, and further that he was a necessary party thereto; also that after the entry of the decree of October 20, 1941, the plaintiffs in the first suit had conveyed an undivided three-eighths interest in the property to Tonry and Fahey, and that the latter two did not have the deed for their interest placed on record until after the expiration of the time within which nonresidents could by petition reopen the cause.

Defendants, having interposed a demurrer to the bill of complaint, now assert: (1) That the period of two years having elapsed after the entry of the...