Dunfee v. Childs,

• Decision Date: 06 March 1906
• Citation: 59 W.Va. 225
• Parties: dunfee v. ChILDS,
• Court: West Virginia Supreme Court

59 W.Va. 225

Dunfee

v.Childs,

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1904.

Decided March 6, 1906.

1. Equity Bill of Review Depositions.

Upon a bill of review for error of law depositions cannot be considered, (p. 229.)

2. Same Pendency of Appeal.

A bill of review for error of law cannot be maintained while an appeal is pending in the Supreme Court of Appeals, (p. 230.)

3. Appeal Dismissal Time of Dismissal.

When an appeal is dismissed by an order of the Supreme Court of Appeals, it stands dismissed and ended on the actual date of such order, and does not continue to exist as an appeal to the end of the term of the Supreme Court of Appeals, (p. 231.)

4. Stay of Proceedings Discretion of Court Pendency of Other Suit.

A stay of proceedings in a suit provided by section 6, chapter 136, Code, rests in the sound discretion of the court. To warrant the stay it must be essential to justice, and it must be that the judgment of decree by the other court will have legal operation and effect in the suit in which the stay is asked, and settle the matter of controversy in it. (p. 233.)

5. Equity Bill of Review Newly Discovered Evidence.

A decree of the Supreme Court reversing, for error of law, a decree under which land is sold, is not newly discovered evidence for a bill of review to reverse a later decree of a circuit court dismissing a bill filed to set aside a deed made to the purchaser under such decree of sale by the former owner of the land after the sale and its confirmation. (p. 235.)

6. Same.

The reversal by the supreme court is not newly discovered evidence or matter for a bill of review to reverse a decree of a circuit court made before such reversal. (p. 236.)

7. Deeds Cancellation.

Will a decree of the Supreme Court of Appeals reversing a decree of sale of land be alone ground for a bill to cancel a deed made to the purchaser under the decree by the debtor and owner of the land before reversal, when there is no other consideration for such deed than such decree of sale and purchase under it? (p. 237.)

8. Vendor and Vendee Purchaser Judicial Sale.

Where a party to a suit interested in a decree for sale of a debtor's land by having a debt decreed him against the land is the purchaser under the decree of sale, and he then conveys the land, after confirmation of the sale and before a bill of review or appeal to reverse the decree of sale, to a bona fide purchaser for valuable consideration without notice actual of error in the decree, such purchaser's title is not affected by a reversal of the decree of sale on bill of review or appeal, (p. 238.)

9. Lis Pendens Bill of Review.

A suit as a lis pendens ends with a final decree. A bill of review or appeal to reverse such decree is a new lis pendens, as regards purchasers claiming title under the decree, and is not a mere continuation of the original suit. (p. 239.)

10. Cancellation oF Instruments Purchaser for Value.

A decree of cancellation of a deed for land for fraud, or duress, or want of consideration, cannot be made against a purchaser for valuable consideration without notice of the facts tainting the deed with fraud, duress or want of consideration, (p. 248.)

11. Deeds Grounds of Invalidity Fraud Duress.

A threat by one having good title to land and entitled to possession as purchaser under a decree of sale, as against the debtor occupying the land, to eject such occupant by process under the decree of confirmation of sale does not constitute fraud or duress to set aside a deed made by such occupant to said owner. (p. 249.)

12. Vendor and Vendee Bona Fide Purchaser.

One claiming land under either a quit-claim deed or a deed with covenant of special warranty may make the defense of a purchaser for valuable consideration without notice, (p. 249.)

13. Deeds Form Interest Conveyed.

A deed of the form prescribed by section 1, chapter 72, Code, containing the words "do grant," though it contain a covenant of only special warranty, will pass the very land itself, and all estate, right, title-and interest of the grantor therein. (p. 250.)

14. Deeds Setting Aside Deeds Laches.

To set aside a deed for fraud suit must be brought in a reasonable time, a time reasonable under circumstances of the particular case. Delay, especially where it affects third persons, will bar relief, (p. 259.)

Appeal from Circuit Court, Tyler County.

Suit by James R. Dunfee and others against H. Childs, Jr., and others. From a judgment for defendants, plaintiffs appeal.

Affirmed.

Van Winkle & Ambler and Dave D. Johnson, for appellants.

T. P. Jacobs, Pugh & Pugh, Roberts & Carter, M. F. Elliott, Erskine & Allison, and S. Bruce Hall, for appellees.

Brannon, Judge:

H. Childs & Co. brought a suit in equity in Tyler county to enforce judgment liens on land of Dunfee, and in it a decree was entered in August, 1891, to sell a tract of eighty-five acres of land of Dunf ee for various debts, one of them to Hardman. Under this decree sale was made of said tract to Hardman, and the sale was confirmed in December, 1891. The decrees of sale and confirmation were by default. Dunfee filed a bill of review in April, 1894, but it was dismissed. On appeal to this Court the decree dismissing the bill of review was reversed for error of law, and the case was remanded to the circuit court. 45 W. Va. 155. The decree of reversal dates 6th May, 1898. In April, 1894, Dunfee and wife filed what is called a supplemental bill in the nature of a bill of review. In it the charge was made that Hardman chilled the bidding at the sale pretending to be buying the land with intent to let Dunfee redeem; and also that after his purchase Hardman, with knowledge that his title under the judicial sale was bad, went in company with a deputy sheriff, Hardman being at the time sheriff, to the residence of Dunfee on the land, and represented that Dunfee's wife had no contingent dower in the land, and that under his purchase he could at once turn them out of possession, and would do so, unless they would execute to him a special warranty deed to the land; but that if they would do so, he would let them remain on the land for the balance of the year 1892, from March; that under this representation, and supposing that their legal rights had been entirely taken away by the sale, and that Hardman knew what he stated to be true, in order to keep from being turned out of doors, they executed such deed to Hardman, dated 28th March, 1892. The deed recites a consideration of one hundred dollars paid and other valua ble consideration; but it seems that said $100.00 was not in fact paid. The bill alleges that there was no consideration but the promise not to execute the writ of possession, and allow Dun fee to remain in possession. A writ of possession had been awarded to Hardman by the court. On the date of the deed Dunfee took a lease of the land from Hardman. This bill alleged numerous errors of law in the decree of sale, and in this respect it was a bill of review, and in the other respect an original bill to cancel said deed for fraud, duress and want of consideration. For these causes this bill sought to reverse the decrees of sale and confirmation for error of law, and to set aside the sale, and also annul the deed from Dunfee and wife to Hardman. The bill states that Hardman had conveyed the land to McCoach, and McCoach had conveyed an interest therein to West, and they had leased the land for oil to Ludwig and Mooney, and they had assigned the lease to The Carter Oil Company. Under said lease large quantities of oil were produced. This bill of April, 1894, sought to charge those liable therefor with the oil royalty in favor of Dunfee. This bill set up the fact that there had been a bill of review, as above stated, to reverse the decree of sale for error of law, and that said bill of review had been dismissed by the circuit court, and that an appeal to this Court had been applied for, but did not say that such an appeal had been granted or was pending. The bill also averred that Dunfee and wife had then pending another bill of review in the circuit court to reverse the decree of sale, and asked that said bill of review be read with said supplemental bill. When the cause was called for hearing on said bill of April, 1894, Dunfee and wife moved the court to stay the hearing until an appeal, alleged in the motion to be pending in the Supreme Court, from a decree dismissing said bill of review filed to review the decree of sale should be determined; but the court refused to stay the case, and dismissed said supplemental bill in the nature of a bill of review. This decree was made in December, 1896. In May, 1899, Dunfee and others filed another bill, a bill of review, to reverse the decree of December, 1896, which dismissed said supplemental bill, and to set aside said deed to Hardman for fraud, duress and want of consideration. We may say this was for error of law. This bill also set up the fact that the Supreme Court had reversed the decree of the circuit court dismissing the bill of review which had been filed to reverse the decree of sale and the sale under it. This was set up to have the effect of newly discovered matter to reverse the decree of December, 1896, dismissing said supplemental bill. Dunfee had died, and this last bill of review was filed by his heirs. On full defense this last bill of review was dismissed, by decree dating 10th of October, 1900. From this decree the plaintiffs have appealed.

The printed record contains 410 pages besides the record on the former appeal, and the briefs 381 pages, and the case has been complicated by numerous elaborate pleadings. It is to be noted that this appeal is only from the decree of October 10, 1900, di missing the last bill of review. The question is, Should that decree be reversed? Instead of dismissing the bill of review of May, 1899, should the decree have been one reversing the decree of December, 1896, and cancelling the deed from Dunfee and wife to...