Cox v. Douglass.

• Decision Date: 19 August 1882
• Citation: 20 W.Va. 175
• Court: West Virginia Supreme Court
• Parties: Cox v. Douglass.

20 W.Va. 175

Cox

v.Douglass.

Supreme Court of Appeals of West Virginia.

Submitted June 19, 1882.

Decided"

August 19, 1882.

1. An injunction is not granted to restrain a mere trespass to real property, when the bill does not clearly aver good title in the plaintiff; nor even then, as a general rule, where the injury complained of is not destructive of the substance of the inheritance, of that which gives it its chief value, or is not irreparable but is susceptible of complete pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law. (p. 178.)

2. A deed, which in the granting clause "grants and conveys" to "A" the land therein described, cannot be said to show title in B, because the deed concludes: ' 'to have and to hold to the said B," when he was not named in the premises, (p. 178.)

3.An injunction will be dissolved at the hearing of a motion to dissolve on bill and answer sworn to, if the answer fully, fairly, plainly, distinctly and positively, denies the allegations of the bill. (p. 179.)

4.An injunction will not be granted to restrain the cutting of timber and removing it from land on the sole ground that the plaintiff has brought an ejectment suit against the defendant to try the title to the same land. (p. 181.)

Appeal from an order of the judge of the circuit court of the county of Ritchie made in vacation on the 11th day of March, 1882, in a cause in said court then pending, wherein D. S. Cox was plaintiff, and Andrew Douglass was defendant, allowed upon the petition of said Douglass.

Hon. Thomas J. Stealey, judge of the fourth judicial circuit, made the order appealed from.

The facts of the case are stated in the opinion of the Court.

B. S. Blair for appellant cited 7 "W. Va. 223; 11 W. Va. 464.

Thomas JE. Davis for appellee cited 18 Am. Dec. 350; 3 Am. Dec. 210; 6 Am. Dec. 241, 376.

Johnson,-President, announced the opinion of the Court:

D. S. Cox on the 2d day of March, 1882, obtained an injunction against the defendant, Andrew Douglass. The bill alleges, that the plaintiff is the owner of one hundred and ninety-five acres of land in Ritchie county, describing it by reference to a deed filed as exhibit "A;" that there was a dispute as to the title; and that Andrew Douglass has entered upon the said land and claims title thereto; that plaintiff has instituted in the circuit court of Ritchie county an action of ejectment against said Douglass to settle the title to said land, which suit is still pending and undetermined; that there is valuable timber growing on said land, which said defendant, Douglass, is cutting and destroying and removing from said land, which, if permitted, will injure the value of said land; and that said Douglass is insolvent, The bill prays an injunction restraining said Douglass from cutting and destroying the timber growing on said land and from removing any that is cut, until the said ejectment suit is heard and determined.

The deed filed as exhibit " A" is in substance as follows:" This deed made this fourth day of February, 1875, between Elijah Iserman, and Mollie C. Iserman, his wife, of the city of Parkersburg, of the county of Wood and State of West Yirginia, of the first part, and Mrs. Mary M. Cox of the county of Wood and State of West Yirginia, of the second, part, witnesseth: That for and in consideration of five hundred and twenty dollars in hand paid, the receipt whereof is hereby acknowledged, said party of the first part doth grant, bargain and sell and convey unto the said party the following described property to-wit:" Then follows the description, and the concluding part is as follows: "To have and to hold the same unto the said D. S. Cox, heirs and assigns forever with covenants of special warranty, together with all the appurtenances thereto belonging. Witness the following signatures and seals," and is signed and sealed by the grantees.

The answer of Douglass denies, that Cox is the owner of the land; but avers, that he is the owner of said land under a grant from the commonwealth of Yirginia. It denies the charge, that defendant is cutting and destroying the timber on said land and removing it therefrom, and also denies the charge of insolvency; but admits that the plaintiff has instituted an ejectment suit against him in the circuit court ot Ritchie county to recover said land and try the title thereto, and that the same is still pending and undetermined. He prays, that the injunction may be dissolved, and the bill be dismissed.

In chambers on the 11th day of March, 1882, the judge made an order, which, after stating the title of the cause, and that it was heard on a motion to dissolve the injunction, says: "This motion came on this day to be heard before me Thomas J. Stealey, judge of the fourth judicial circuit of West Yirginia, in chambers in the town of Harrisville, W. Va., upon motion to dissolve the injunction heretofore awarded in this cause, which notice was duly executed upon the plaintiff, the bill of complaint, the answer of Andrew Douglass, which was filed at the hearing of said motion, and exhibits filed with the said bill, and was argued by counsel for complainant and defendant. On consideration whereof, the court is of the opinion, that the said injunction awarded in open court on the 2d day of March, 1882, in this case ought not to be dissolved; it is therefore adjudged, ordered and decreed, that the motion to dissolve said injunction awarded in this ease he and the same is hereby overruled."

Ought the injunction to have been dissolved?

An injunction is not granted to restrain a mere trespass to real property, when the bill does not on its face clearly aver good title in the plaintiff; nor even then, as a general rule, where the injury complained of is not destructive of the substance of the inheritance, of that which gives it its chiet value, or is not irreparable, but is susceptible of complete pecuniary compensation, and for which the party may obtain adequate satisfaction in the ordinary course of law McMillan v. Ferrell, 7 W. Va 223. But a court of equity will enjoin a mere trespass to real property, where good title in the plaintiff is alleged, and it is also alleged in the bill, that the trespasser is insolvent; because in such case the party could have no adequate remedy at law.

The bill in this cause does not allege good title. The plaintiff alleges, that lie is the owner of the land, and vouches as proof thereof a deed, which is made a part of the bill, by which it appears, that the land, on which the alleged trespass was committed, was thereby granted to another person, Mrs. Mary M. Cox. It is true, that it says in the conclusion, "To have and to hold unto said D. S. Cox, heirs and assigns forever;" but D. S. Cox was not before named in the deed at all, and there certainly was no land by said deed granted to him; with respect to the habendum its office is only to limit the certainty of the estate granted; therefore no person can take an immediate estate by the habendum of a deed, where he is not named in the premises; for it is in the premises of a deed that the thing is really granted. If land be given to J. S. habendum to him and a stranger for a certain estate, tins is void as to the stranger, because he...