Campbell v. Lynch

• Decision Date: 23 January 1920
• Docket Number: Case No. 4091.
• Court: West Virginia Supreme Court
• Parties: W. C. Campbell, et al., Plaintiffs below, Appellants, Lucy J. Lynch et al., Defendants below, Appellees. Appeal from decree of

88 W.Va. 209

W. C. CAMPBELL, et al., Plaintiffs below, Appellants,

v. LUCY J. LYNCH et al., Defendants below, Appellees. SAME, Appellees, v. SAME, Lucy J. Lynch et al., Appellants. SAME. v. SAME, W. O. Abney et al., Appellants.

Case No. 4091.

Supreme Court of Appeals of West Virginia.

January 23, 1920.

Same, Appellees,

v. Case No. 4108.

Same, Lucy J. Lynch et al., Appellants.

Appeal from decree of May 27, 1919.

Same.

v. Case No. 4156.

Same, W. 0. Abney et al., Appellants.

Appeal from decree of January 23, 1920.

Submitted February 22, 1921. Decided March 15, 1921.

1. Appeal and Error Questions Adjudicated on Former Appeal Law of Case Whether Correct or Not.

Unless for other reasons a decree must be reversed, questions adjudicated on a former appeal must be adhered to on a second appeal as the law of the case, whether or not those questions were rightly decided. (p. 212).

2. Same Answer Pleading Sufficiency of Bill Disposed of On Former Appeal is Mere Renewal of Matter Adjudicated.

In so far as an answer pleads the sufficiency of the matter of a bill disposed of here on demurrer thereto upon a former appeal, the answer will be regarded as a renewal of the demurrer, and as fully adjudicated on the former appeal. (p. 212).

3. Equity Where Respondent Desires to Take Evidence to Support Answer, He Should Move for Continuance.

If upon the filing of his answer to a bill matured for hearing, and replication of the plaintiff thereto, respondent desires time to take evidence in support of his answer, good practice requires that he should move the court for a continu ance, without which ha will be regarded as having waived his right and as consenting to a hearing on bill and answer.

(P. 215).

4. Partition Agreement Giving Interest to One Not Legally Entitled Thereto Must Be Clearly Proven.

To be binding and effective an alleged agreement that a partition of land should include interests not legally involved therein, the agreement should be clearly proven, and it should appear that all the partitioners were parties thereto and mutually bound thereby. (p. 216).

5. Estoppel Estoppel Must Be Certain, and Must Not Be Taken By Argument or Inference.

Every estoppel, since it concludes one from alleging the truth, must be certain to every intent and is not to be taken by argument or inference; and the facts upon which it is based must be clearly proven and not capable of bearing any other construction. (p. 217).

6. Same Mere Silence Insufficient; Person to Be Estopped Must Have Full Knowledge, and Must Intend to Mislead.

Mere silence will not work an estoppel; to be effective it must appear that the person to be estopped has full knowledge of all the facts and of his rights, and intended to mislead or at least was willing that the other party might be misled by his attitude. (p. 218).

7. Husband and Wife Wife Not Necessary Party to Suit for Accounting Under Reservation of Oil Rights by Husband.

When a contract and a deed from husband and wife which sold and granted all the right and title of the grantors in land in which the husband is interested, reserved and excepted therefrom one-sixteenth part of the oil therein belonging to the husband, the wife is not a necessary party to a suit subsequently brought during his life for an accounting and division of the oil produced from the land. (p. 220).

8. Equity To Prevent Injustice, Court May Permit Substitution of New Answer During Trial.

Where during the progress of a suit it appears that a position taken in an answer will work a great injustice and result inequitably to respondent in the division and partition of the oil and gas produced from the land, the court in the exercise of a sound discretion should permit respondent to withdraw his original answer and file a new one, in order to relieve him from the inequitable and unjust consequences. (P. 220).

Appeal from Circuit Court, Roane County.

Three separate suits by W. C. Campbell and others against Lucy J. Lynch and others and W. 0. Abney and others. From the decrees W. C. Campbell and others appeal in the first suit, Lucy J. Lynch and others appeal in the second suit, and W. 0. Abney and others appeal in the third suit.

Reversed and remanded.

Chas. E. Hogg, J. W. Kennedy and J. F. Cork, for appellants W. C. Campbell and others.

McClintic, Mathews & Campbell, for appellants W. 0. Abney and others.

Harper & Baker and Turner & Brennan, for appellees Lucy J. Campbell and others.

H. C. Ferguson, for appellee John Edward Lewis.

Miller, Judge:

The appeal by Campbell and others, plaintiffs, in Case No. 4091, is from the decree below of January 23, 1920, which for the second time dismissed their bill and denied them any relief. When this case was formerly before us on plaintiffs' appeal, in November, 1917, (81 W. Va. 374), we reversed the decree of the circuit court sustaining defendants' demurrer to their bill, and remanded the cause to the circuit court for further proceedings to be had therein in accordance with the opinion and mandate thereto certified.

The appeal in Case No. 4108, by the defendants Lucy J. Lynch, James McC. Lewis, Fannie M. Simpson, Mary Lewis Good, and Enos Johnson, administrator of the estate of Mary M. Lewis, is from the decree of May 27, 1919, entered in the said cause, which settled the rights of the parties in accordance with the rules and principles of our former decree, and referred the cause to a commissioner to state and settle the accounts between the parties to the suit in accordance therewith.

The appeal in Case No. 4156 by W. 0. Abney and others, heirs and personal representatives of the estate of F. W. Abney, deceased, from the decree of January 23, 1920, which dismissed plaintiffs' bill, refused to confirm the report of the commissioner, and denied them the right to withdraw their original answer and file their new answer then tendered and offered to be filed.

In addition to these several appeals there are cross-errors assigned on behalf of John Edward Lewis, by H. C. Ferguson, his counsel, which will be hereafter adverted to and disposed of.

Unless avoided or affected by issues presented by the answers, the former decision here, though by a divided court, must be regarded as the law of this case. Formerly the case was presented upon the bill and the exhibits therewith, and the demurrer of the defendants thereto sustained by the lower court, but which we overruled, and remanded the cause. Our opinion on the former hearing will disclose that the questions then presented were, what is the true construction of the two leases for oil and gas executed by Edward Lewis and Mary M. Lewis, his wife, in April 1900, and what the effect on the rights of the parties to the oil and gas of the subsequent decree dividing and partitioning the lands covered by said leases between the heirs at law of the said Edward Lewis, then deceased, referred to in the bill, and the subsequent conduct of the partitioners in relation thereto, and in relation to the subsequent development of oil and gas on the lands allotted the partitioners?

Unless a good defense was presented by the answers of the defendants filed on the remand to the circuit court, the decree pronounced on May 27, 1919, should be adhered to and executed, and that of January 23, 1920, again dismissing the bill, should be reversed upon the appeal and assignments of error therein by the appellants Campbell and others in Case No. 4091, and of W. 0. Abney and others in Case No. 4156.

That the court below was bound, as we are now bound on this appeal, by whatever was decided upon the former appeal as the law of this case, is not an open question in this state, unless for want of parties or for other error in the decree it must be reversed. Seabright v. Seabright, 33 W. Va. 152; Mason v. Harper's Ferry Bridge Co., 20 W. Va. 223; Wick v. Dawson, 48 W. Va. 469; Pennington v. Gillas- pie, 66 W. Va. 642. And this is the law in most jurisdictions, state and federal. Campbell's Ex'ors v. Campbell's Ex'ors, 22 Gratt. 649; Bank of Old Dominion v. McVeigh, 29 Gratt. 516. For a full note on the subject with reference to many decisions, see City of Hastings v. Foxworthy, 45 Neb. 676, 34 L. R. A. 321.

The issues sought to be presented by the answers of Lucy J. Lynch and others, defendants, were: First, that in the suit for partition and assignment of dower brought by Lucy J. Lynch v. Mary M. Lewis et al., widow and heirs of Edward Lewis, deceased, referred to and pleaded in the bill, the court, having jurisdiction of the subject matter and the parties, had by the decree of partition therein pronounced on April 2, 1907, finally adjudicated beyond recall the rights of the parties in interest in the land partitioned and in the oil and gas therein; and said decree was pleaded in estoppel of the claims of the plaintiffs to any of the oil and gas produced by the lessee in said leases not found under and produced from the particular lot allotted to them in said partition: second, that the plaintiffs W. C. Campbell and his children, then adults, had agreed with the widow and other heirs of said Edward Lewis, at the time of said partition, that the person to whom each purpart was assigned should be and was entitled in fee to the oil and gas underlying the same, and that W. C. Campbell and his children had acquiesced in such decree and agreement, for nearly seven years, until the situation of the parties had changed, and until they had concluded that the two parcels of land allotted to them would not prove as valuable for oil and gas as anticipated at the time of said partition: third, that early in 1907, John E. Lewis, F. W. Abney and W. C. Campbell, by written notice to the South Penn Oil Company, Mary M. Lewis and others, protested that they owned the oil and gas under the lands allotted to them, and that John E. Lewis and said Abney had, under the claim that they owned the oil and gas under the tract assigned to them, brought suit against the South Penn Oil Company and others to...