Cresap v. Cresap
| Decision Date | 09 March 1904 |
| Citation | 46 S.E. 582,54 W.Va. 581 |
| Parties | CRESAP v. CRESAP et al. |
| Court | West Virginia Supreme Court |
Submitted September 10, 1903
Syllabus by the Court.
1. The date of a decree or judgment, as shown by the record, marks the point of time from which the statute of limitation governing an appeal from, or writ of error thereto, commences to run.
2. Where a widow is executrix of the will of her late husband and claims certain real estate under the will as a devisee therein, and also claims it as her individual property upon a resulting trust, as against her husband's estate, she may set up her individual claim to said property in a bill filed by her to construe the will and settle the estate.
3. Laches is inexcusable delay in asserting a right, and is an equitable defense, controlled by equitable considerations. To be a bar, the lapse of time must be so great, and the relation of the defendant to the right such, that it would be inequitable to permit the plaintiff to assert it, where he has had, for a considerable period, knowledge of its existence, or might have acquainted himself with it by the use of reasonable diligence.
4. Point 1 in Biern v. Ray, 38 S.E. 530, 49 W.Va. 129 and in Sayre's Adm'r v. Harpold, 11 S.E. 16 33 W.Va. 553, approved and applied.
5. Where exceptions to a part of an answer are sustained, and the defendant does not ask leave to amend his answer, it is not error to proceed to hear the case on the bill, and so much of the answer as is not excepted to.
6. Where the husband buys land with the wife's money, and with her assent, but, without her knowledge or consent, takes the title to the property to himself, and such facts are established by clear and satisfactory proof, and the transaction is free from fraud against creditors, equity will treat the property as her separate estate, and establish a resulting trust in her favor, good both as against the husband and his creditors.
Appeal from Circuit Court, Randolph County; John Homer Holt, Judge.
Bill by Agnes C. Cresap against the Bank of West Virginia and others. Decree for plaintiff. Certain defendants appeal. Affirmed.
W. B Maxwell, for appellants.
Sam V. Woods, for appellee.
Appellee Nannie I. Brown insists that this appeal should be dismissed because, as she claims, the term of the court at which the decree appealed from was entered commenced on the 21st day of January, 1901, and was continued from day to day until the 1st day of February, 1901, when the said decree was entered in the record. The appeal was allowed on the 23d day of January, 1903, more than two years from the commencement of the term at which said decree was pronounced. In Dew v. Judges, 3 Hen. & M. 27, 3 Am.Dec. 639, the court says: "The term 'session,' when applied to courts, means the whole term, and, in legal construction, the whole term is construed as but one day, and that day is always referred to the first day or commencement of the term." In Dunn's Ex'rs v. Renick, 40 W.Va. 349, 360, 22 S.E. 66, 70, it is said: "By reason of this rule that the whole term is one day, the common-law rule was that a judgment rendered on any day has relation to, and is a judgment of, its first day." Tidd, Prac. 547; 1 Lomax, Dig. 287; 1 Black, Judg. § 441; 2 Freem. Judg.§ 369; Farley v. Lea, 32 Am.Dec. 680. This doctrine or rule had always been recognized in Virginia before we had a statute, but is now embodied in a statute, as regards the effect of the judgment as a lien. Code 1899, c. 139,§ 5; Society v. Stanard, 4 Munf. 539; Coutts v. Walker, 2 Leigh, 268; Skipwith's Ex'r v. Cunningham, 8 Leigh, 272, 31 Am.Dec. 642; Withers v. Carter, 4 Grat. 418, 50 Am.Dec. 78. The court, in Dunn's Ex'rs v. Renick, supra, holds: "Though a decree or judgment relate to the first day of a term, yet, if the case was not ready for hearing or trial, and therefore no judgment or decree could have been given on such first day, it does not relate to the first day, but has the date of its actual entry on the record." This rule of law seems to be necessary, in order to give effect to the proceedings of the courts. Without it the administration of justice might be thwarted in many cases by successive alienations of property pending the suit wherein the property is the object of the litigation. All men are presumed to take notice of the proceedings in courts of justice.
Section 3 of chapter 135 of the Code of 1899 provides that "no petition shall be presented for an appeal from, or writ of error or supersedeas to, any judgment, decree or order, whether the state be a party thereto or not, nor to any judgment of a circuit court or municipal court rendered in an appeal from the judgment of a justice, which shall have been rendered or made more than two years before such petition is presented." The petition for the appeal in this case describes the decree, in part, as having been made on the 1st day of February, 1901, but does not give the date of the commencement of the term at which the decree was entered. It is probable that no petition for an appeal or writ of error can be found among the records of this court, which describes the decree or judgment sought to be reviewed by the date only of the first day of the term of the court at which it was made and rendered. It is believed to be the universal practice to state in the petition the day on which the decree or judgment was made or entered, as the date of such decree or judgment. Such seems to be the construction placed upon the statute by the bar. No appeal from a decree or writ of error to a judgment can be allowed, or correction thereof made, under chapter 134 of the Code of 1899, until the same be entered on the record of the court. Certainly no execution can be issued thereon until the record thereof be made and signed by the judge. The execution must follow the judgment, and be supported by it. Freeman on Ex. 42; Herm. on Ex. vol. 1, § 42. It is a part and continuation of the record.
In order to stop the running of the statute of limitations, it is necessary to present a petition, in a case specified by the statute, to the Supreme Court of Appeals, or to a judge thereof, in vacation, within a time limited by the statute. It is a sufficient compliance with the terms of the statute if the petition for an appeal or writ of error be presented within the time limited. Ambrouse's Heirs v. Keller, 22 Grat. 769. In Hoy v. Hughes, 27 W.Va. 778, 780, the court cites Buster v. Holland, Id. 510, and holds that no appeal can be entertained from any decree of any character, whether final or interlocutory, which had been rendered more than two years before the petition for the appeal was presented. Stout v. Phillippi M. & M. Co., 41 W.Va. 339, 23 S.E. 571, 56 Am.St.Rep. 843; Tiernan's Adm'r v. Minghini's Adm'r, 28 W.Va. 314. As to appeals to the Supreme Court of the United States, the act of Congress provides that no judgment, decree, or order of a circuit court or district court in any civil action at law or in equity shall be reviewed in the Supreme Court on writ of error or appeal unless the writ of error is brought or the appeal taken within two years after the entry of such judgment, decree, or order. Rev. St. U.S. 1878, § 1008 [U. S. Comp. St. 1901, p. 715]. In the case of Iron Co. v. Hoagland, 105 U.S. 701, 26 L.Ed. 1109, decided at its October term, 1881, under the statute above cited the court held that "the time within which a writ of error must be served, in order that it may operate as a supersedeas, must be computed from the date of the judgment which is the subject of review." In the case of Cummings v. Jones, 104 U.S. 419, 26 L.Ed. 824, decided at the same term, the court held that "the judgment of a state court cannot be re-examined here unless within two years after it was rendered a writ of error be brought." Barton's Law Pr. vol. 1, 53, 57, cites several decisions of the Supreme Court of Appeals of Virginia construing the statute of that state relating to appeals and writs of error, which statute is somewhat similar to our own. In all of the decisions examined, the actual date of the decree or judgment, as shown by the record, marks the time from which the statute of limitations governing the allowance of appeals from, and writs of error to, decrees and judgments, commences to run.
In the light of the adjudicated cases, we therefore hold that the date of the decree or judgment complained of, as shown by the record, is the point of time from which the statute of limitations governing an appeal from, or writ of error thereto, commenced to run. However, in computing the time within which an appeal or writ of error may be allowed, Code 1899, c. 13, § 12, must not be overlooked. The appeal in this case was therefore allowed within the time prescribed by the statute in such case made and provided.
Appellants Gustavus J. Cresap, Rachel R. Murdoch (née Cresap), and Mary B. Cresap insist that the main question, to wit, the right and title to the "John Burkett property," situate in the town of Beverly, which was conveyed to C.J. P. Cresap by deed dated June 2, 1871, attempted to be adjudicated and determined by the decree now complained of, made and entered by the said circuit court on the 1st day of February, 1901 was at the date of said decree res judicata by the decision of this court, pronounced on the 6th day of December, 1890, in Cresap v. Cresap, 34 W.Va. 310, 12 S.E. 527. This suit was originally brought by Agnes C. Cresap, widow and executrix of the last will and testament of Charles J. P. Cresap, deceased, referred to above as C.J. P. Cresap, against the devisees and creditors of said testator, to ascertain the several creditors of the decedent, and the amount and priorities of their demands against the estate; to...
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