Dunfee v. Childs

• Decision Date: 06 May 1898
• Citation: 30 S.E. 102,45 W.Va. 155
• Parties: DUNFEE et al. v. CHILDS et al.
• Court: West Virginia Supreme Court

30 S.E. 102

45 W.Va. 155

DUNFEE et al. v. CHILDS et al.

Supreme Court of Appeals of West Virginia.

May 6, 1898

Submitted February 7, 1898

Syllabus by the Court.

1. There need be no leave of court to file a bill of review based on error of law, but such leave is necessary when the bill of review is based on newly-discovered facts.

2. Three years is the limitation for a bill of review, and five years for a motion to reverse a decree by default. (Brannon P., fixes two years for both.)

3. It is error to decree payment of purchase money before the time fixed in the contract.

4. Though a suit be brought by one judgment creditor only, to enforce the lien of his judgment, and though it does not make other judgment creditors parties, and though it be not in terms a suit for the benefit of the plaintiff and other judgment creditors, yet the court may make it a suit for all lienors by ordering an account of all liens to be taken, or on a reference to convene lienors any may prove their liens. Upon such order to convene liens it is a suit for the benefit of all presenting liens, though no mention of such liens be made in the bill.

5. Petitions for relief in a cause filed by new parties must have process against parties to be affected thereby; but, if they seek to enforce liens, and an order to convene liens is made, the liens stated in the petition may be presented to a commissioner without such process on such petition.

6. A bill to enforce a judgment lien must state that a writ of fieri facias has been returned "No property found," or that no execution issued within two years from the date of the judgment. This is not required as to judgments of date before the act of 13th March, 1891.

7. Before a sale of land can be made to satisfy judgments, it must somehow appear in the cause that it will not, in five years, rent for enough to satisfy the liens decreed.

8. The reversal of a decree under which land is sold will not affect the title of the purchaser, if he is not a party to the suit or, though a party, has no interest in the debt or cause for which the land is sold; but, if he is a party with such interest in the decree, his title falls with such reversal. If a decree confirming a sale be reversed for error in it the purchaser's title falls, whether he be a party or not. Where necessary parties, having title, are not before the court, the purchaser's title falls with reversal of decree of sale.

Appeal from circuit court, Tyler county; Thomas P. Jacobs, Judge.

Suit by H. Childs & Co. and others against John R. Dunfee and another to enforce a judgment. There was a decree for plaintiffs. Defendants' bill of review was dismissed, and they appeal. Reversed.

David D. Johnson, for appellants.

Robert McEldawney and S. B. Hall, for appellees.

BRANNON P.

This was a chancery suit in Tyler county by H. Childs & Co. against Taylor and Dunfee to enforce a judgment against the lands of Taylor and Dunfee. There were other lienors not made parties, but they filed petitions seeking the enforcement of their judgments, and were made co-plaintiffs by order of the court. There were a purchase-money lien and a deed of trust on the lands. There was a convention of lienors under an order of reference, and a decree of sale, and a sale under it, and a decree confirming that sale. These decrees were decrees by default as to Taylor and Dunfee. Then came a motion to reverse the decree of sale for certain errors which motion was overruled. Then came a bill of review, which was dismissed, and this is an appeal to review the action of the court in dismissing the bill of review.

No leave of court to file the bill of review was given. It is based on error of law. The Virginia practice and ours has been to apply in the first instance for leave to file a bill of review, whether it be error of law apparent in the decree or upon discovery of new matter; but the general chancery practice elsewhere, while requiring leave to file a bill of review for matter newly discovered since the decree, does not require such previous leave to file bills of review based on error in law. The matter has never been actually settled in this state, as Judge English states correctly in Riggs v Huffman, 33 W.Va. 430, 10 S.E. 795; and I think that Judge English was right in indicating the opinion in that case that no good reason exists why the English practice which dispenses with such previous leave, should be changed, and therefore I hold that such previous leave is not required. It is true that section 5, c. 133, Code 1891, does contain the clause, "A court or judge allowing a bill of review may award in injunction to the decree to be reviewed;" but the use of the word "allow" in that clause does not necessarily mean that previous leave must in all cases be had. The clause may receive a reasonable construction in saying that it applies where the party wants not merely a bill of review, but also an injunction to supersede the execution of the decree complained of. Besides, the court recognized the bill of review by acting upon it, thus dispensing with the necessity of previous leave to file it. The bill of review was filed more than two years after the decree, but not more than three years. Was it barred? Until chapter 157, Acts 1882, the limitation of an appeal to the court of appeals was five years, and that of a bill of review three years; and, the legislature having reduced the limitation for an appeal to two years in 1882, leaving chapter 133, § 5, standing without repeal by express reference to it, it may be claimed that three years is still the limitation of a bill of review for error of law. A bill of review is a mode of reversing a final decree for two causes,--one, error of law apparent on the face of the decree; the other, for newly-discovered matter. Amiss v. McGinnis, 12 W.Va. 371. This bill rests on error of law, not newly-discovered matter. For error of law apparent in a decree you may have either an appeal or bill of review. Now, if you ask an appeal to the supreme court, and the decree is older than two years, you are refused it; and yet, if this bill can be maintained, you can go back to the circuit court, if the decree be not over three years old, get a bill of review, and reverse it. This cannot be. Surely, you cannot reverse it for the same error in the circuit court which could not reverse it in the supreme court. By the act of 1882, an error, after two years, is cured; the decree stands forever valid. If for an error which would be reversible on an appeal taken in time, but cannot be reversed on appeal because barred, you can yet reverse on bill of review, see where it would lead. After two years, but within three, you ask an appeal to the supreme court, and it is refused because barred. Then you get a bill of review, and after years it is dismissed by the circuit court. Then you get an appeal from the decree dismissing the bill of review, and the supreme court thinks there was error in the first decree for which the circuit court ought to have reversed it on bill of review, and reverses the first decree, --reverses it perhaps 10 years after its date. Thus, under this theory, is a decree reversed 10 years after its date in the very teeth of the act of 1882 plainly intending that no decree shall be reversed for error after two years. This cannot be. Why? Because the two acts conflict, and the later prevails. Though section 5, c. 133. limiting bills of review to three years, is not repealed by mention, it is repealed by inevitable implication, under principles of reason, and consistently with well-settled rules of interpretation of statutes. The two sections squarely conflict. One (the later) says that an appeal shall not lie after two years,--that is, an error in it cannot be redressed after that time; the other gives three years. They both operate on the same matter,--the erroneous decree. Reason says one must give way, and that is the older one. Look at authority. "Where two statutes on the same subject conflict, the later shall have precedence." Edgar v. Greer, 74 Am. Dec. 316; Towle v. Marrett, 14 Am. Dec. 206, note, [45 W.Va. 159] p. 209. When a conflict is seen, the older provision ceases without a repealing clause in the later act. 23 Am. & Eng. Enc. Law, 479. How can we doubt that the legislature in 1882 designed one, and only one, limitation on all proceedings to reverse an erroneous decree? It is error that is barred, not simply the process. Where, for a given error, there are two concurrent remedies, it was not intended to fix different limitations for them. From early in the century the legislation of Virginia and this state gave an appeal longer duration than a bill of review; but now, under the theory claimed, the latter has longer time. Why a difference? Why give the inferior court longer time? The legislature designed to fix two years as the limit upon an error in a decree or judgment. If it did, that displaces former limitation, and brings the bill of review under analogy to the appeal, as it was before it had a limit. Shepherd v. Larue, 6 Munf. 529, 531. The United States supreme court has said in Daviess v. Fairborn, 3 How. 636, that, "though a later act be not repugnant to the provisions of a former one, yet, if it is clearly intended to prescribe the only rule which should govern, it repeals the prior act." Approved by Moncure, J., Fox v. Com., 16 Grat. 11. "A later statute, the evident intent of which is to furnish the exclusive rule governing a certain case, repeals by implication an earlier law on the same subject. If the co-existence of two sets of affirmative provisions would be destructive of the object for which the later set was passed, or if the same right would be made dependent on conflicting conditions (two remedies),...