Foggin v. Furbee
| Decision Date | 04 October 1921 |
| Docket Number | No. 4272.,4272. |
| Parties | I. Earl Foggin v. Sarah J. Furbee, Executrix, Etc., et als. |
| Court | West Virginia Supreme Court |
Enjoin the Action on Ground that Muniments of Title of Plaintiff is a Cloud Upon His Title.
A defendant in an action of ejectment, claiming goo'd title to the property in controversy and having possession thereof, cannot maintain a bill to enjoin the action solely on the ground that the muniments of title of the plaintiff therein constitute a cloud upon his title, (p. 177).
While Relying Upon a Defense Fully Admissible in a Law Court.
In a case of concurrent jurisdiction on an issue of fact on which a question of title depends, such as fraud, the court whose jurisdiction first attaches is entitled to retain it, and the defendant in an action of ejectment, relying upon a defense fully admissible in the law court, cannot transfer the controversy into a court of equity, by a bill to cancel the plaintiff's title papers, as constituting a cloud upon his title, and to enjoin prosecution of the action, (p. 178).
when Defendant Holds Equitable Title and Plaintiff as Trustee of Defendant the Legal Title by Reason of Fraud. If, however, the title of the defendant in such an action is merely equitable and the plaintiff holds the legal title under circumstances making the latter a trustee for the former, by reason of legal or actual fraud in the acquisition thereof, a bill to get in the legal title and enjoin prosecution of the action can be maintained, (p. 179).
roneous Decree to a Stranger for Value when Decree is Rendered and Such Stranger is Not Made a Party or Restitution of the Title in Any Way Effected.
If, after a purchase of land sold under an erroneous decree of sale, by a party to the suit in which it was entered and confirmation of the sale, and before any steps have been taken to correct the error, the purchaser conveys the property to a stranger for value, the legal title passes by his deed; and, if, on subsequent reversal of the decree, such stranger is not made a party, nor restitution of the title in any way effected, the legal title remains in him, even though it may be affected with an equity in favor of other persons, by reason of his having purchased with knowledge of facts rendering his title voidable, (p. 180).
A stranger to the cause, purchasing under such circumstances, is not a pendente lite purchaser, even though he purchased from a party to the suit, because there was no pending suit, at the time, the suit having terminated with the decree of sale and confirmation of the sale. (p. 179).
Nor is a second stranger purchasing from the first a pendente lite purchaser. (p. 179).
Nevertheless, if the purchase of such first stranger was fraudulent or voidable for any reason, and the second took the title from him with knowledge of the infirmity therein, or, of facts sufficient in law to put him upon inquiry as to it, the title is voidable in the hands of the latter, (p. 179).
But, if such first stranger paid a valuable and substantial consideration for the property and took the title, in good faith and without knowledge of such infirmity and of such facts, the title in the hands of his grantee is unimpeachable, even though he had. knowledge of facts or circumstances rendering voidable the title of the original purchaser under the decree, (p. 183).
Relationship of the parties to a conveyance of property, contractual and affinitive, assailed on the ground of fraud, is not strictly and properly, evidence of fraud, but only a circumstance requiring more than ordinary care and scrutiny in the consideration of the evidence and facts and circumstances tending to prove fraud, and according to them more than ordinary probative force, (p. 181).
Upon an inquiry as to good faith on the part of the parties to a conveyance alleged to have been fraudulent, inadequacy of the price for the property, does not; alone, vitiate it, unless it be so great as to raise a presumption of fraud, or as to make it a circumstance sufficient to have put the purchaser upon inquiry as to the good faith of the vendor, (p. 181).
Sold in County Other Than That in Which it is Situate Not Void.
A sale of real estate made in a county other than that in which it is situated, in conformity with the terms of the decree ordering it, and requiring it to be sold in the county in which the court entering it sat, and afterwards confirmed, in the absence of a statute requiring it to be made in the county of the locus of the property, is not void by reason of the place of sale, the decree being merely erroneous in respect thereof, (p. 184).
Other Than Where Suit is Pending.
A court of equity has jurisdiction and power, in a suit for divorce, to decree its allowance of alimony and suit money to be a lien upon the real estate of the defendant and subject the same to sale for satisfaction thereof; and, it may properly 'do so, in the absence of other means of enforcement of the wife's right to such relief against him, even though the property is situated in a county other than that in which the suit is pending, (p. 184).
The title to property sold under a decree of a court having jurisdiction, occupied after sale and deed by the former owner, and persons claiming under him, taxed in their names and the taxes paid, and not taxed in the name of the purchaser at the judicial sale, is not forfeited for non-taxation as to such purchaser, only one title being involved in the conflicting claims of right and the taxes having been paid on it. (p. 184).
Appeal from Circuit Court, Woocl County.
Suit by I Earl Foggin against H. R. Furbee revived upon his death against Sarah J. Furbee, his executrix, and others. From a decree of perpetual injunction, defendants appeal.
Reversed; Injunction dissolved; Bill dismissed.
Reese Blizzard, R. E. Bills, and C. M. Hanna, for appellants.
William Beard, for appellee. Poffenbarger, Judge:
The subject of complaint on this appeal is a decree perpetually enjoining the prosecution of an action of ejectment, commenced in the Circuit Court of Wood County, against the plaintiff: and appellee herein, by H. R. Furbee in his lifetime. While this suit was pending, Furbee died and it was revived against the executrix of his will and his legatees and devisees.
The subject matter of the litigation is Lot No. 64 of Stewart's Second Addition to the City of Parkersburg, together with the dwelling house and other improvements thereon. In a divorce suit instituted and prosecuted to a final decree, in the Intermediate Court of Marion County, this property was twice judicially sold and conveyed, and Furbee claims the title mediately under the first of the two sales. Under the second, made after the first had been set aside by proceedings in the same cause, the plaintiff in this suit, I Earl Foggin, became the purchaser and obtained a deed for the property.
The theory of the decree complained of is that Furbee was a pendente lite purchaser of the property, and, though not made a party to the cause in which it was sold, he was not entitled to a judicial hearing respecting his claim of title. It also proceeds upon the theory of loss of such title as he had, by forfeiture for non-entry of the property for taxation and nonpayment of taxes thereon, for a period of more than five years, occurring within the pendency of this suit. During that period, the plaintiff in this cause was in the actual possession of the property and paid the taxes thereon and, upon these facts, he bases his claim of transfer to himself, by virtue of the statute, of such title as Furbee had.
As has been suggested, this controversy has grown out of proceedings in a divorce suit in the Intermediate Court of Marion County. Within a month or two after his marriage, Earnest M. Foggin residing in Marion County, deserted his wife, Marie E. Foggin, transferred his business and property in Fairmont to his father and left the state. In November, 1909, the deserted wife brought her suit for a divorce from bed and board, in which she obtained a decree against the defendant, on June 1, 1910, for the sum of $200.00 to be paid within twenty days from that date, and $25.00 per month beginning on July 1, 1910, as alimony, and for the further sum of $100.00 for counsel fees and costs. At about the date of the institution of the suit, an attachment was sued out, directed to the sheriff of Wood County, and levied on the property in controversy. At the same time, a notice of lis pendens was filed and recorded in the Clerk's office of the County Court of said county. On November 7, 1910, an order of sale of the house and lot, based upon the levy of the attachment, was entered. Before this order was executed, it was discovered that the trustee in a deed of trust by which the defendant had conveyed the property to secure a debt to a building and loan association, had conveyed it to an uncle of the defendant, under the pretense of having made sale thereof to him under the deed of trust, and that the uncle had subsequently conveyed it to the defendant's mother, Mary Foggin. Thereupon, an amended and supplemental bill was filed, in which the trustee, the uncle, the mother, the plaintiff herein and the building association were made parties. In this bill, it was alleged and charged that there had been no valid sale of the property under the deed of...
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- Korczyk v. Solonka, C. C. No. 720.
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Korczyk v. Solonka
... ... real estate of the defendant, against whom alimony has been ... decreed, may be sold to satisfy the decree. Foggin v ... Furbee, 89 W.Va. 170, 109 S.E. 754; Gain v ... Gerling, 109 W.Va. 241, 153 S.E. 504; Murray v ... Price, 114 W.Va. 425, 431, 172 S.E ... ...
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Korczyk v. Solonka
...enforce it, the real estate of the defendant, against whom alimony has been decreed, may be sold to satisfy the decree. Foggin v. Furbee, 89 W. Va. 170, 109 S. E. 754; Gam v. Gerling, 109 W. Va. 241, 153 S. E. 504; Murray v. Price, 114 W. Va. 425, 431, 172 S. E. 541; Duncan v. Duncan, 119 W......
- Foggin v. Furbee