Dlngess et al. v. Marcum et al.
| Decision Date | 28 March 1896 |
| Citation | 41 W.Va. 757 |
| Parties | Dlngess et al. v. Marcum et al. |
| Court | West Virginia Supreme Court |
Bill of Review Final Decree.
It is necessary that a final decree should have been rendered in the cause which is sought to be reviewed, before a bill to review the same will be entertained.
Bill of Review^ Discovery of New Matter.
The causes for which a bill of review may be maintained are limited as follows: (1) There must be error in law apparent on the face of the decree; or (2) the party seeking to review the decree must allege and prove the discovery of new matter, which could not have been used at the time of making the decree, in consequence of the party's ignorance that such matter existed.
3. Bill of Review Reasonable Diligence.
The matter relied on must not only be new, but it must be such as the party, by the use of reasonable diligence, could not have known.
4. Partition of L and Implied Warranty.
In partition of land a warranty is implied, because of the privity of the estate. Upon partition the parties are in cequali jure. There is supposed to be mutual confidence, by reason of the privity of estate, and if thfi common fund is not so large as the parties suppose, either from defect of title, or of unsoundness as to part, the loss should be borne equally.
5. Partition of Land.
It is the duty of the court, through its commissioners, to ascertain what estate exists, before proceeding to make a partition of the same, or confirming such partition.
J. S. Clark and C. M. Turley for appellants, cited 8 W. Va. 174; 10 W. Va. 298; 12 W. Va. 371; 32 W. Va. 195, 335, 556; 33 W. Va. 426; 35 W. Va. 36; 37 W. Va. 355; 40 W. Va. 337, 349; 32 Graft. 657; 75 Va. 563; 77 Va. 600; 88 Va. 149; 20 S. E. Rep. 899; 22 S. E. Rep. 516; 4 Graft. 348; 152 Mass. 136; 5 K H. 329; 17 Am. & Eng. Enc. Law, 778, 784, 811; 3 S. & R. (Pa.) 534; 3 P. &. W. (Pa.) 505; 18 Pa. 374; 96 Pa. 61; 5 Munf. 108.
H. K. Shumate for appellees, cited Sto. Eq. Jur. §§ 404, 412, 413, 414; Bart. Ch. Prac. 336; 21 Gratt. 241, 245; 8 W. Va. 174, 182; 12 W. Va. 393; 37 W. Va. 208, 210; 10 W. Va. 145; 32 W. Va. 335; 32 Gratt. 657; 77 Va. 600; 78 Va. 413; 75 Va. 563; Code, c. 79, s. 1.
At the July rules, 1891, held for the Circuit Court of Logan county, Sylvanus Dingess and Jane Dingess, his wife, brought a suit in equity against the widow and heirs of Gideon Marcum, deceased, for the partition of the real estate of which said Gideon Marcum died seised and possessed, among the several children and heirs at law of said Marcum. The land was to be partitioned among eleven heirs, or those holding under them, respectively.
E. "W. Clark, W. W. Justice, and Samuel Chauvenet, trustees, were the owners of two shares of said lands, and filed their petition alleging that fact, and praying that their two shares be laid off together, and adjoining their own lands, which was done by commissioners appointed to make said partition, which action was confirmed, without exception or objection.
After said partition was decreed, and deeds made to the respective parties to whom the parcels of land had been set apart and allotted by the commissioners, E. W. Clark, Jos. I. Doran, and Saban W. Colton, Jr., filed a bill of review, making the parties to the original bill defendants. In said bill of review said plaintiffs, among other things, allege that they are the owners of large boundaries of land situated in Logan county, W. Va., and that they hold said lands as trustees for certain stockholders, to them unknown, and have full power and authority to prosecute and defend all suits and all proceedings respecting the subject-matter of their trust as fully and effectually as if the cestuis que trusteed were made parties in any proceeding affecting the lands which they hold as trustees; that as such trustees they purchased the interests of Malinda Bailey and Jane Dingess in and to all the lands of which Gideon Marcum died seised, which lands are situated mainly in the county of Logan; that, at the time said purchase was made, one W. W. Justice and Samuel II. Chauvenet were connected as trustees with the said E. W. Clark, but that, since said purchase was made, S. W. Colton and Jos. I. Doran have been duly substituted as trustees in the place of said W. W. Justice and Samuel II. Chauvenet, and all the lands and rights and interests which were owned by the said Clark, Justice, and Chauvenet, trustees, have been duly conveyed and transferred from said Clark, Justice, and Chauvenet, trustees, to said Clark, Colton, and Doran, trustees, includingthe above mentioned lands and interests purchased of Jane Dingess and Malinda Bailey, which represent two interests or two shares of the Gideon Marcum estate as aforesaid; that one Sylvanus Dingess, who was the husband of Jane Dingess, at July rules, 1891, instituted in the circuit court of Logan county a suit in chancery against the widow and heirs of Gideon Marcum, deceased, for the partition of the real estate of which the said Gideon Marcum died seised. And the plaintiffs proceed to set forth said or iginal bill in substance, together with the answers, petitions, and proceedings had therein, including the report of the commissioners appointed to partition the land, and the final decree making partition of said land among the respective parties, and directing deeds to be made to the respective parties.
The plaintiffs, in the bill of review, further say that since the entering of said last named decree, on the 20th day of January, 1893, S. S. Vinson and others conveyed by deed all their right, title, and interest in and to their interest as laid off to them in said land to the Logan Cannel Coal Company, a corporation, as shown by a copy of the deed filed therewith; that all the land laid oii to S. S. Vinson was wild land, and its chief value consisted in the valuable timber standing thereon, and that said Logan Cannel Coal Company has since cut and removed all of the valuable timber from the land, amounting to several thousand dollars, which should be taken and considered in any partition of said lands; that said decree confirming said report gives to plaintiffs a tract of land which purports to be of about 109 7-10 105 acres on the east side of Twelve Pole, adjoining other land owned by the plaintiffs near the Gideon D, Marcum homestead, and also another tract of 115 110 acres in Wayne county, known as the "Kelley Place"; that since said partition was made, and since the report of the commissioners was confirmed, and since the decree has been passed directing dteds to be made to each for their respective interests, they have had the 109 7-10 105 acre-tract surveed, and in making said survey the plaintiffs have discovered tharthere are about thirty five acres of the land that are held by an adverse title, which is older and superior to that of said Gideon I). Marcum, deceased, and that said title is now owned and the lands occupied by Edward Hlsly, and plaintiffs are unable to get possession of the land which said commissioners alloted to them; that, at the time said commissioners made said allotments, they believed that the estate of Gideon D. Marcum was the only claimant or owner of the whole of said 109 7-10 106 acres of land, and they knew no better until after their report had been made, filed, and confirmed, and until after they had gone upon the land and run it out, long after the report had been made and confirmed.
The plaintiffs further allege that the tract of land in Wayne county which said commissioners allotted to the plaintiffs was sold for taxes thereon for the years 1890 and 1891, and that it was bought in at the tax sale by one J. C. Miller, and afterwards the clerk of the county court of Wayne county made and executed a deed to said Miller, conveying to him the whole of said tract of land, and that said Miller has now taken possession of the same, all of which was unknown to said commissioners at the time they made their partition as aforesaid, and was also unknown to the plaintiffs at the time said partition was made, and at the time the report was filed and confirmed. Plaintiffs further say that they paid a very large sum of money for the interest in the estate of Gideon Marcum, deceased, and, without any fault of theirs, that the shares which have been allotted to them are held adversely to them, and can not be recovered by the plaintiffs, with the exception of a part of the 109 7-10 acre-tract which was set apart to the plaintiffs near the Gideon D. Marcum homestead; that upon equitable division of the estate of Gideon D. Marcum, deceased, they are entitled to two-elevenths of all the lands that were owned by Gideon D. Marcum at the time of his death, and that, if they received what they are entitled to, they would have allotted and laid off to them about two hundred and sixty acres of land, representing two-elevenths of the whole property, but, on the contrary, that they have received less than sixty acres of land, through the mistake of the commissioners who allotted it to them, and through the forfeiture of the title at the tax sale...
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