Gardner v. Buckeye Sav. & Loan Co, s. 6578-6581.

• Decision Date: 11 March 1930
• Docket Number: Nos. 6578-6581.,s. 6578-6581.
• Court: West Virginia Supreme Court
• Parties: GARDNER et al. v. BUCKEYE SAVINGS & LOAN CO. et al., and three other cases.

152 S.E. 530

GARDNER et al.

v.

BUCKEYE SAVINGS & LOAN CO. et al., and three other cases.

Nos. 6578-6581.

Supreme Court of Appeals of West Virginia.

March 11, 1930.

Syllabus by the Court.

Appeal from Circuit Court, Harrison County.

Separate suits by Lillian G. Gardner and others, by A. S. Berry, by A. F. McCue, and by Alice L. Bennett and others, against the Buckeye Savings & Loan Company and others. From adverse decrees, plaintiffs appeal.

Reversed and remanded.

Steptoe & Johnson and James M. Guiher, all of Clarksburg, for appellants.

Will E. Morris, W. G. Stathers, A. M. Cantrall, H. N. Kramer, and K. H. Keeney, all of Clarksburg, for appellees.

WOODS, J.

These four suits were instituted for the purpose of removing clouds from and quieting titles to certain residential properties in the city of Clarksburg. The several appeals are prosecuted from decrees of the circuit court of Harrison county sustaining demurrers to and dismissing the bills filed herein. As the causes are similar, we will confine ourselves to the allegations of the McCue bill.

The bill, as amended, alleges, in substance, that one Hornor and wife, on the 14th of September, 1920, obtained a loan of $6,000 from the Buckeye Savings & Loan Company, an Ohio corporation, which for many years prior to the suit had done a very substantial part of its business in and about the city of Clarksburg, and at the same time executed a deed of trust to Sheets, as trustee, to secure said loan, which deed of trust was duly recorded; that in 1921 Hornor and wife sold the property to McCue, the latter assuming the payment of the loan; that McCue obtained a loan from another concern and paid off the Buckeye loan, and, as evidence and in acknowledgment thereof, the Buckeye Company delivered McCue, through said Sheets, its duly authorized agent, a release bearing date April 21, 1923, which was recorded March 24, 1925; that Sheets absconded in August of 1926, on account of irregularities of accounts with the Buckeye Company; that shortly thereafter a representative of the Buckeye Company called upon and notified McCue that it denied the validity of said release of April 21, 1923, on the alleged ground that said re-lease was improperly and fraudulently executed and delivered to McCue, that said Hornor loan had not been paid off and satisfied, that the said release was not binding on the Buckeye Company, and that said deed of trust still was in full force and effect; that said Buckeye Company, since Sheets' disappearance, has questioned and denied the validity of many other such releases; and that such contention is well known to the public generally in and about the city of Clarksburg; that a number of chancery suits are now pending wherein the Buckeye Company is challenging, attacking, and contesting the validity and effect of payments made by property owners residing in and about Clarksburg to said Sheets, as its local agent, representative, and attorney, as well as the validity and effect of releases of its trust deeds securing said loans; and that it is seeking and attempting to sell the properties of such borrowers under said deeds of trust, notwithstanding the execution, delivery, and recordation of said releases; that such releases constitute and are, in the absence of an adjudication of their validity, serious clouds upon the titles of plaintiff and others; that said release to plaintiff is valid and binding, but on account of the fact that defendant openly and publicly disputes the validity of it and other like releases, and the further fact of uncertainty and distrust in the community, a serious and substantial cloud is thrown upon plaintiff's title, ownership, and possession; and that, in absence of remedy, save in equity, the present suit is instituted for the purpose of having cloud on title removed and title quieted, through a confirmation of said release and an adjudication of its validity, as well as by a cancellation of the said deed of trust securing said Hornor loan; that at the time of the assumption, as well as the payment of said loan, plaintiff did not know of any note or other evidence of said loan, other than the said trust deed securing the same; that the exact description of note, whether negotiable or nonnegotiable, is to complainant unknown; and that defendant should be compelled to produce and surrender said note for cancellation. The bill ends with the prayer that the said Hornor note and loan be adjudged to have been fully paid off and discharged and the deed of trust securing the same be declared to be without force or effect as a lien upon said property, and that the cloud thereby created and existing upon complainant's title to said real estate may be canceled and removed; that the release delivered to complainant be confirmed and be adjudged valid and binding by this court; that Buckeye Company be ordered to produce and surrender to complainant for cancellation the said note evidencing the said Hornor loan.

The defendant in the court below challenged the sufficiency of the bill upon two general grounds: First, that there is want of jurisdiction in the court to entertain the bill; and, second, that there is want of equity in the bill. These grounds constitute the basis of its attack on the pleading in this court. Of course, the certainty of plaintiff's right must be determined in the first instance by the allegations of the bill. To quiet title to realty, or to remove an existing cloud, or to prevent a threatened cloud, is an ancient and well-established head of equity jurisprudence. The broad grounds on which equity interferes to remove a cloud on title are the prevention of litigation, the protection of the true title and possession, and because it is the real interest of both parties, and promotive of right and justice, that the precise state of the title be known, if all are acting bona fide. 32 Cyc. p. 1306. We have held that such power of a court of equity to grant relief is independent of any statute conferring jurisdiction, and rests on general equity principles and practices. Tennant v. Fretts, 67 W. Va. 569, 6S S. E. 387, 29 L. R. A. (N. S.) 625, 140 Am. St. Rep. 979; Gilbert v. McCreary, 87 W. Va. 56, 104 8. E. 273, 12 A. L. R. 1172. With reference to this jurisdiction in equity, this court has said that there is a distinction between removing a cloud and quieting title, although such distinction is somewhat refined, but for the latter purpose that there is a distinct ground for equity jurisdiction to remove cloud from one in possession under the better title, although he has not first vindicated it at law. Whitehouse v. Jones, 60 W. Va. 680, 55 S. E. 730, 12 L. R. A. (N. S.) 49. Reverting to the question of jurisdiction, we find that Judge Story, in speaking of delivery up, cancellation, or rescission of agreements, securities, deeds, and other instruments, says, in effect, that it is obvious that the jurisdiction exercised in cases of this sort is founded upon the administration of a protective or preventive justice. The party is relieved upon the principle that such agreements, securities, deeds, or other instruments may be vexatiously or injuriously used against him when the evidence to impeach them may be lost, or that they may throw a cloud or suspicion over his title or interest; and, whatever may have...