Cresap v. Brown

• Decision Date: 07 May 1918
• Docket Number: (No. 3438.)
• Parties: CRESAP et al. v. BROWN et al.
• Court: West Virginia Supreme Court

96 S.E. 66

CRESAP et al.

v.BROWN et al.

(No. 3438.)

Supreme Court of Appeals of West Virginia.

May 7, 1918.

(Syllabus by the Court.)

Appeal from Circuit Court, Randolph County.

Bill by Gustavus J. Cresap and others against Nannie I. Brown and others. From the decree, defendants J. Hop Woods and others appeal. Reversed in part, affirmed in part, and remanded.

J. Hop Woods and Samuel V. Woods, both of Philippi, for appellants.

W. B. Maxwell, of Elkins, W. W. Brannon, of Weston, and W. E. Baker, of Elkins, for appellees.

POFFENBARGER, P. After the remand of this cause, in pursuance of the decision reported in 69 W. Va. 658, 72 S. E. 751, to which reference is made for indication of the relations of the parties, character of the litigation, and general nature of the controversy, the personal representatives and devisees of Samuel Woods, deceased, and the devisees of Frank Woods, deceased, moved the court for leave to withdraw their offer of an accounting, made in their answer previously filed, and then filed a plea of the statute of limitations, to which the devisees of John Brannon replied generally. Overruling the motion to withdraw the offer of an accounting and granting the devisees of John Brannon leave to file a special replication to said plea, within 30 days, the courtreferred the cause to a commissioner to take, state and report an account. The commissioner filed his report, May 7, 1915, and two subsequent reports, termed in the decree "forthwith reports, " May 24, 1915, and March 5, 1917, respectively. There were numerous exceptions by both sides to the original report, and some were filed to those subsequently made. In the decree appealed from, the court overruled all of the exceptions other than one pertaining to the costs of the reference, provisionally eliminated from the account an item of $1,627.60, the rights respecting which were dependent upon the result of pending litigation in another cause, and adjudged, ordered, and decreed that J. Hop Woods and Samuel V. Woods, as administrators with the will annexed of Samuel Woods, deceased, retain out of the sum of $59,937.94 the sum of $25,786.09, embracing the distributive share of the Woods estate, $17,897.31, advances made by it for the benefit of the joint property $3,214.64, the amount due the Woods estate from the distributees of 0. J. P. Cresap, deceased, $796.12 and $702.67, and advancements made by said estate to Nannie I. Brown Holt, amounting to $3,175.35, and pay to the administrator de bonis non of John Brannon, deceased, out of said sum of $59,937.94, the sum of $21,152.22, to Gustavus J. Cresap, in his own right and as administrator, $8,087.99, and to Nannie I. Brown Holt $4,912.62. From this decree, the personal representatives of the estate of Samuel Woods, deceased, have appealed.

For an alleged lack of pleading, not jurisdiction in equity in a partition suit, the appellants deny the right of the appellees to an accounting at all, and especially as to the proceeds of the timber sold to Moore and Keppel, constituting the bulk of the funds distributed. The original bill was filed against the Woodses and Brannons, and prayed specially only for partition, but it contained a prayer for general relief. The amended bill brought in Moore and Keppel, attacked the sale made to them, for lack of authority in J. Hop Woods and Samuel V. Woods, acting for themselves and their codevisees, and, repeating the prayers for partition and general relief, specifically asked annulment of the deed. In an amended and supplemental bill, all of these prayers were repeated in connection with one for certain injunctions against the cutting of timber and construction of railroads. There is another repetition of several of them in a second amended and supplemental bill, having for its special purpose the stay of a decree of sale made in another suit. The defendant having averred, in answers previously filed, their offer to pay the estates of John Brannon and C. J. P. Cresap $5,870.84, each, out of the proceeds of the sale of the timber to Moore and Keppel, and prayed for an accounting, by way of affirmative relief, the plaintiffs filed in the clerk's office of the court, September 30, 1905, a special reply in writing, denying the right in the defendants to an accounting on the basis stated by them, and admitting rejection of the offer of payment made. They also filed in said clerk's office, October 10, 1905, another special reply in writing, by which they united in the prayer of the defendants for an accounting as to all moneys arising from the proceeds of the lands sold by Samuel Woods in his lifetime and before the death of C. J. P. Cresap, but expressly declined to enter into an accounting as to the proceeds of sale made by him after the death of Cresap, or by his heirs or devisees since his death, and expressly repudiated all such sales. These special replications were formally filed by the decree of reference, entered after the remand of the cause, and described therein as having been theretofore read.

The substantial purpose of the original bill was the enforcement and settlement of a trust. Three estates were equally interested, beneficially, in the land, the legal title to which was held by the devisees of Samuel and Frank Woods, equitable owners of one-third thereof, as well as trustees. It prayed only for partition and general relief. On such a bill, compensation could be allowed for injuries done to the trust subject by acts done by the trustees in excess of their authority, if facts justifying it were alleged and proved, for allowance thereof would not be inconsistent with the relief specially asked, and would be founded upon the case made by the bill. Certainly the rule here would not be more rigid than that governing procedure on a bill for partition among tenants in common, allowing an accounting on a bill praying partition and general relief, as an incident of the right to partition, a doctrine uniformly assented to by the authorities. Rust v. Rust, 17 W. Va. 901, 907; Humphrey v. Foster, 13 Grat. 653; Watts v. Waddle, 6 Pet. (U. S.) 389, 8 L. Ed. 437; Warfield v. Bank, 11 GUI & J. (Md.) 98; Backler v. Farrow, 2 Hill, Eq. (S. C.) 111; Freeman, Coten. & Part. § 512; 21 A. & E. Ency. L. 1170; 30 Cyc. 231; Fletcher's Eq. Pl. & Pr. § 41; Mitford's Pl. 38, 39; 1 Beach, Eq. Pr. 132. The original bill did not allege facts showing such injuries or an abuse of the trust, but the later pleadings did bring in the sale of the timber, without authority, under such circumstances as wrought deprivation of the title thereto. This circumstance, however established, whether regularly or irregularly as a matter of pleading, afforded an ample basis for a demand for an accounting under the prayer for general relief, since substance rather than form governs the right. The allegation of a wrongful sale was maintained, notwithstanding denial of the prayer for specific relief based thereon, annulment of the sale as against Moore and Keppel. Under a general prayer, a plaintiff cannot have a decree founded upon a claim distinct from thatstated in his bill. Piercy v. Beckett, 15 W. Va. 444; Pickens v. Knisely, 29 W. Va. 1, 11 S. E. 932, 6 Am. St. Rep. 622; Zell Guano Co. v. Heatherly, 38 W. Va. 409, 18 S. E. 611; Vance Shoe Co v. Haught, 41 W. Va. 275, 23 S. E. 553; Stewart v. Tennant, 52 W. Va. 559, 44 S. E. 223. And the relief given under such prayer, when special relief is asked, must not be inconsistent with that specifically sought. Vance Shoe Co. v. Haught, cited.

The assumption of legal inconsistency between the award of an accounting and the special prayers of the amended bill and the amended supplemental bills, proceeds upon the erroneous theory of a ratification of the sale of the timber and the pursuit of the proceeds thereof in the accounting. The disavowal and repudiation of the sale and declination to accept the proceeds are inconsistent with a decree for partition of the proceeds; but there was a right in the plaintiff to an accounting for the injury done to the trust subject, by the wrongful sale of the timber, and the absolute consistency of that right with the special prayer for partition is perfectly obvious. The acceptance of the sale price of the timber as the measure of the compensation for the wrong done amounts to nothing more than the assent of the appellees to a rule or standard of measuring the compensation. Whether the timber was worth more or less than the sale price does not seem to have been made an issue in the accounting. The appellees seem to have been willing to accept it, with interest, as the measure of their compensation for the injury, and the appellants seem to have acquiesced in that standard of measurement, except as to the interest, if held liable at all, for there was no contention on their part that the amount of compensation should be determined upon another basis. Of course, they deny any liability at all, upon technical grounds, and object to the allowance of interest; but the inquiry now goes to the question of liability upon any basis. Though not so expressed in terms, the view now adopted states the principle upon which the court seems to have predicated its general conclusion on the former appeal. It was then held that the appellants had made the sale without authority, and that Moore and Keppel were protected in their purchase only by lack of notice of the defect in the title of their vendors. There was no adjudication of a ratification of the unauthorized sale or acceptance of the proceeds thereof. The Woodses were absolved from the charge of intentional wrong and the price at which they had sold commended for fairness and reasonableness; but they were held to have acted without authority, and to be, for that reason, wrongdoers in their capacities as trustees, though not so characterized in terms. So to characterize them now casts upon them no imputation of moral turpitude, for a man may invade the rights of another,...