DONAHOE v. FACKLER.

• Decision Date: 28 February 1876
• Citation: 8 W.Va. 249
• Court: West Virginia Supreme Court
• Parties: DONAHOE v. FACKLER.

8 W.Va. 249

DONAHOE

v.FACKLER.

Supreme Court of Appeals of West Virginia.

February 28, 1876.

1. T. D. and others file a bill, alleging that certain parties, therein

named, were the owners of a tract of land, as the heirs at law of M. A., and pray that the same may be sold, as incapable of partition, and a sale is accordingly made. More than six years afterwards the same parties file an amended bill, alleging that the same parties own said land as the devisees of L. A., and not as heirs at law of M. A., as alleged in their original bill the amounts of their interests being somewhat different and pray that the sale may not be confirmed. The purchaser in the meantime, although the sale had not been reported or confirmed, had taken possession of said land, and made valuable improvements, and paid the whole or a larger part of the purchase money. Held:

That the fact, if such it be, that the same parties own the land as devisees, and not as heirs at law, is no sufficient objection to confirming the sale, there being no other objection made, or shown thereto, and as the proceeds of sale can be distributed among the parties in interest, in the proportion in which they hold said land as devisees.

2. It is premature and erroneous to adjudicate and decide questions

which are not properly presented in the pleadings, and to decree the payment of money by one party to another, when no such relief is sought or desired, and the proper parties are not all before the court.

3. It is premature and erroneous to decree an account to be taken of

money received by a deceased party, when his personal representative is not before the court, upon proper process.

Appeal and supersedeas, granted on the petition of James M.Gray, to two several decrees of the circuit court of Putnam county, rendered on the 15th day of December, 1869, and the 24th day of October, 1873. The complainants were Thomas M. Donahoe and others, and the respondents Wiley Fackler and others. The opinion of the Court contains a sufficient statement of the case.

The Hon. James H. Ferguson, then judge of the circuit court of Cabell county, presided at the rendition of the decree of December 15, 1869, and the Hon. Joseph Smith, judge of said circuit court of Putnam, presided at the rendition of the decree of October 24, 1873.

Smith & Knight and William H. Hogeman for the appellant.

William A. Quarrier and J. W. English for the appellees.

Paull, Judge.

In August, 1858, Thomas M. Donahoe and others, plaintiffs, filed their bill in the circuit court of Putnam county, stating that certain persons therein named consisting of Hugh R. Austin, Alexander M. Austin and others, were the children and heirs at law of one Morris Austin, deceased, who had died seized and possessed of a large tract of land, then lying in the county of Kanawha, but now in the county of Putnam, and containing from seven to eight hundred acres; that the same was unimproved to any considerable extent, and is not susceptible of a partition which would be advantageous to the interests of the parties, and that the shares which would fall to the infant defendants would be almost valueless; in consideration whereof the bill prays that said land may be sold and distribution made of the proceeds of said sale among the parties thereto entitled, and for general relief. A guardian ad litem was appointed for the infant defendants, who answered the bill, and testimony was taken to support its allegations. The court being satisfied, by the evidence, that it was for the mutual interest of all parties that the land should be sold, entered a decree, in September, 1858, directing a sale, and appoint- ing James W. Hoge and Andrew Parks special commissioners to make sale of said land, on the terms expressed in said decree. This decree was subsequently modified, at the instance of the commissioners, as to the terms of sale, and another decree entered at the April term, 1859, directing said commissioners to make sale, &c, but before receiving any money under this or the former decree, to execute and file with the clerk of the court bond with sufficient security, in the penalty of $600, conditioned according to law.

The next proceeding in court in this cause, which is found in the record, is the filing of a petition by James M. Gray, in November, 1865, alleging that a sale was made of said land by said Hoge & Parks, commissioners, as aforesaid, pursuant to the decree; that said sale was made on the 10th day of September, 1859, and that said Gray became the purchaser of said land, at the price or sum of $6,568.20; that he paid $300, required to be paid in cash, and gave his bonds for the balance of the purchase money, in equal instalments, in one, two and three years, with interest; that he had long since paid oft all that was due on said bonds, nearly all of which was paid to said commissioners, and the balance to the parties entitled thereto, and files the bonds receipted by said commissioner, with his petition; that he had never received a deed for said land; that Andrew Parks had departed this life, and that said Hoge be required to answer, and to execute to said Gray a good and sufficient deed for said land.

The next proceeding we find in the record is the filing of an amended bill by the plaintiffs, in May, 1866, referring to the original bill and to the decrees appointing Hoge and Parks commissioners to sell said land, and to the petition of James M. Gray, alleging that said land was sold, and the purchase money all paid, yet no report is found among the papers of said cause showing that a sale had ever been made, and that no order had been entered in said cause confirming said sale, or directing the collection of the purchase money. The amended bill then alleges that the parties who were said in the original bill to have been the heirs at law of Morris Austin, and as such entitled to said tract of land, it has been since ascertained, are in truth and in fact the devisees of said land under the will of Letitia Austin, his wife, who was entitled to the same upon the death of her husband, who did not own the land, and in view of these facts, the amended bill prays that the sale made by said commissioners be not confirmed, but set aside and held for nought, and for general relief. It would seem from the bill that the same parties still own this land now as devisees of Letitia Austin, who were alleged formerly to have owned it as heirs at law of Morris Austin, but the amount of their individual interests is not exactly the same. An order of publication is filed as to the nonresidents and exhibits of the bill made.

We have next the answer of James M. Gray to this amended bill, filed in May, 1867, in which he refers to his petition, and again alleges that a sale was made at which he became the purchaser, that he had paid off and discharged to said Hoge and Parks, the commissioners of sale, the whole amount of the purchase money, less the amount paid to some parties in interest, and was long since entitled to his deed; that he is not informed whether any report of sale was made or not, and that that is a matter in which respondent is powerless, and with which he has nothing to do, and denying that the plaintiffs now hold said land as devisees, and prays that the sale be confirmed and a deed ordered to be made.

Next we have the answer of James W. Hoge, one of the commissioners, filed on the 14th day of December, 1869, to the petition of James M. Gray, and to the amended bill, and to which there is filed a general replication. In his answer he admits the appointment of himself and Parks as commissioners;that the sale was of west virginia.

made, in accordance with the terms, to James M. Gray and that he cannot explain why a report was not madeof the same to the court; that he had always believed that said report had*been made; that the purchase money was paid by said Gray to himself and Parks; but that whatever payments were made on the bonds executed by Gray were made to...