Chapman et al v. Branch et al.
| Citation | 72 W.Va. 54 |
| Court | West Virginia Supreme Court |
| Decision Date | 28 February 1913 |
| Parties | Chapman et al v. Branch et al. |
1. Judicial Sales Rights of Purchasers Reversal or Vacation
of Decree.
The title of an immediate purchaser, or of a remote purchaser, not parties, cannot be disturbed or affected by reversal on appeal, or on setting aside of a decree of sale, for mere error therein not going to the jurisdiction of the court, (p. 58).
2. Infants Purchases at Judicial Sales Reversal or Vacation
of Decree.
This rule is applicable to infants as well as adults, proceeding by prochein ami before majority, as in proper person after majority, either under section 7, chapter 132, Code 190G, or by motion, original bill or bill of review to set aside such decree. (p. 58).
3. Same Actions Misnomer.
Where in a suit by an administrator to sell a decedent's land to pay debts, one or more of the infant defendants are misnamed in the process or bill, but the correct name elsewhere appears in the record, by deposition or affidavit, the error in process or bill is correctible by the record, (p. 59).
4. Same.
If in such suit the answer of the guardian ad litem for infant defendants contains the same error in the name of an infant defendant, such error will not deprive the court of jurisdiction to decree sale of the land proceeded against, (p. 59).
5. Same Actions Guardian Ad Litem Appointment.
Errors and irregularities in the appointment of a guardian ad litem, or in his answer filed, where no statute controls, will not deprive the court of its jurisdiction to pronounce
decree. (pp. 59, 60).
6. Executors and Administrators Sales Under Order of
Court Conveyance Property Excluded.
If in a suit to subject a decedent's lands to sale to pay his debts the court by its decree authorizes the commissioner appointed to sell, to first offer the mineral and mineral rights in the land, arid if these do not bring sufficient to pay the debts, then to sell the whole estate in the land, and the commissioner so advertises and sells such mineral and mineral rights for sufficient to pay the debts, the court on his report is without jurisdiction by subsequent decree of confirmation, the question not being therein otherwise presented or litigated, to include in such sale property and property rights not sold, and such decree and the deed of the commissioner to the purchaser to the extent of such property and property rights are void and confer no title on the purchaser, as against infant heirs and defendants, and in a suit subsequently brought by them showing cause against such decree and deed, the same and all subsequent deeds may be removed as clouds on their title to the property and property righta not sold. (p. 60).
7. Same Sales Under Order of Court Conclusiveness of Decree.
If in such suit to sell a decedent's lands one not a party, or mentioned in the bill, and against whom no relief is sought, claiming to be assignee of an alleged oral contract of sale by decedent to another of a part of his land, intervenes by petition setting up such oral contract, praying for specific execution, and for deed, but not making parties thereto, and without process thereon the court is without jurisdiction to decree specific performance of such alleged contract against infant heirs and defendants not parties and for whom no appearance or defense is made, and such decree and the deed of the commissioner appointed to convey such land to petitioner is void, and in a suit by such infants subsequently brought showing cause against such decree and deed the same and all subsequent deeds may be set aside and removed as clouds on the title of such infants, (p. 65).
(Robinson. Judge, dissenting).
Appeal from Circuit Court, Lincoln County.
Bill in equity by Lena Chapman and others against J. R Branch and others. From a decree for defendants, plaintiffsappeal.
Reversed in part. Affirmed, in part. Remanded.
E. T. England and J. B. Ellison, for appellants.
Enslow, Fitzpatriclc, Alderson & Baker, for appellees.
Plaintiffs, Garnett Ellis, (nee Chapman), and Lena Chapman, adults at the time of suit, Bodolph Chapman, then an infant, but now also an adult, and Leslie, Grade, and Elisha Chapman, then and. now infants, all children and heirs at law of E. M. Chapman, deceased, and Olivia Chapman, his wife, said, infants suing by Garnett Ellis, their next friend, on February 1, 1909, brought this suit against J. E. Branch, Branchland Coal Company, and others, seeking upon several grounds to set aside, annul and remove as alleged clouds on their title to a tract of one hundred and twenty-nine acres, and a half undivided interest in a tract of one hundred and thirteen acres of land in Lincoln county, certain decrees and orders and deeds made pursuant thereto, pronounced in a certain other suit, instituted by the said Olivia Chapman, as administratrix of their father, E. M. Chapman, against them or some of them, then all infants, and others, on September 25, 1899, to sell said lands to pay the debts of said decedent because of alleged deficiency of personal assets.
The process in the suit of said administratrix recited the names of all the infant defendants correctly, except Garnett; in her stead M. J. Chapman is named. In the bill all are impleaded correctly except Garnett and Elisha; in their places M. J. Chapman and Eliza Chapman are named. And the guardian ad litem answered for those named in the bill, and no answer was otherwise made for Garnett and Elisha.
The decrees of sale and confirmation of the mineral and mineral rights under the 129 acre tract complained of were pronounced on April 13, 1900, and August 22, 1900, respectively; and the decree made on petition of Johnson Ferguson, adjudging him entitled to said half undivided interest of said E. M. Chapman, in said 113 acre tract, and directing a deed to be made to him therefor, was also pronounced on April 13, 1900.
The grounds for relief alleged, briefly stated, are: First, that neither Garnett, nor Elisha were ever made parties to the suit, or bill, and never appeared, and that both remained infants during the whole progress of the suit; that D. E. Wilkinson, ap- pointed guardian ad litem, was a defendant, a creditor, and so interested as to render him an incompetent person to represent them, and that the court therefore never acquired jurisdiction to pronounce the decrees against them; second, that though the decree authorized sale of 129 acres in fee, if the mineral rights would not sell for sufficient to pay debts, yet only mineral rights were advertised and sold, but that in the decree of confirmation along with the mineral rights sold, the court undertook to confirm and the commissioner appointed to convey timber, building rights and other surface rights not sold, leaving plaintiffs, as owners of the surface, absolutely at the mercy of the purchaser of the mineral rights; third, that though E. M. Chapman, at his decease, was owner of said half undivided interest in the 113 acre tract, the court by one of the decrees complained of, on mere exparte petition of Johnson Ferguson, without process, notice, or other proceedings against plaintiff and without appearance, on one and the same day allowed said petition to be filed, and decreed petitioner entitled to that interest, and appointed a commissioner to convey him the legal title thereto, in violation of the statute of frauds, of the rights of plaintiffs, and of all proper rules of procedure, and without having acquired jurisdiction to do so; fourth, that said sale was decreed, without giving the administratrix and heirs at law or some one for them, a day to pay the debts decreed; fifth, that the mineral and mineral rights were sold for a grossly inadequate price; sixth, that it was error to decree a sale of said land before assigning dower to the widow.
The bill shows that the lands and mineral interests in controversy and so affected by said decrees have come by sundry mesne conveyances to the possession and ownership of the defendant Branchland Coal Company; that its immediate predecessor, the Lincoln Coal Company, in 1901, took possession of Said lands, especially the 129 acre tract, and immediately began cutting timber, building tram roads, and opening up coal mines; that it took possession of the whole of the land fronting on the river, about forty acres, and built bouses thereon, also of the land on Four Mile Creek, for the distance of about one fourth of a mile, cut large ditches therein, built roads, and continued these operations for some time, until the Branchlancl Coal Company took charge and continued said operations; and that the whole of the merchantable timber has been cut from the land and used in building houses, barns and other buildings, and for cross ties and timber in its coal mines, and that the larger portion of the coal under this land has been mined and shipped away; that taken from the 129 acres being valued at $15,000.00; and the one-half of that taken from the 113 acres is estimated at $2,500.00, for which and for other rents and profits, plaintiffs alleged they are entitled to an accounting with defendants.
The purchaser, Smith, of the mineral and mining rights under the 129 acre tract, was a stranger to the suit, and so far as the record discloses was not otherwise interested; and. the answers of J. B. Branch and Branchland Coal Company, putting in issue all the material allegations of the bill, shows respondents to have been remote and innocent purchasers, without notice, otherwise than by what is disclosed by the record of the cause, of any infirmities in the title, and this fact is not controverted.
We think it settled law in this State, that the title of an immediate purchaser, and of remote purchasers, not parties under a judicial decree, cannot be disturbed or affected by reversal on appeal, or on setting aside of a decree of sale for mere error therein, not going to the jurisdiction of the court,...
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