Gillespie v. Bailey
| Decision Date | 01 November 1877 |
| Citation | 12 W.Va. 70 |
| Parties | GILLESPIE et ux. v. BAILEY et al. |
| Court | West Virginia Supreme Court |
1. A deed or contract for the sale of land, executed by a married woman having no separate estate, which has not been acknowledged by her after a privy examination, is absolutely void as to her.
2. A deed or contract for the sale of land, executed by an infant is not absolutely void, but may be either affirmed or avoided at his pleasure, after he attains his majority.
3. Where the purchaser of lands of an infant has not put valuable improvements upon the land, and has not been in actual possession of the land, after the infant has attained his majority for a period sufficiently long to bar a recovery of lands by reason of the statute of limitations, mere lapse of time will not amount to an affirmance of the sale by the infant, or bar him of his rights to avoid it.
4. Though under certain circumstances a person, who had bought land of an infant, might be entitled to have the purchase money paid by him to the infant refunded, when the contract is avoided by the infant, after he attains his majority; yet as he would have to account to the infant for the rents and profits of the land while in his possession, if the record discloses that such rents and profits must greatly exceed the purchase money paid and interest, and the vendor does not ask for the settlement of such account, though ordered, the purchaser cannot in the Appellate Court assign as error, that the court below did not take an account charging him with the rents and profits, and crediting him by such purchase money (an order too which had remained unexecuted twenty-two years), before it rendered a final decree vacating the sale and putting the vendor in possession, as the vendee is not prejudiced by such failure to settle such account.
5. If the plaintiff, after the institution of a suit to partition land, sells the land, the case properly proceeds in his name as though no such sale had taken place.
6. An infant, who has sold his interest in land to a tenant in common with him, may bring a suit, after he has attained his majority, to set aside his contract of sale, and at the same time to partition the land in the same suit.
7. A failure for thirteen years to make any entry but continuances in a cause, where such entry of continuances has regularly been made at each term, is no discontinuance of a cause, if the court has made no order dismissing the cause for want of prosecution, as provided for by the statute.
8. If a court is satisfied that the plaintiff's death has been suggested by the defendant, without any knowledge on his part that he is really dead, but only for the purpose of delay the court may render a final decree in the cause then ready for such action, and disregard such suggestion.
Appeal granted upon the petition of Charles P. Bailey to a final decree of the circuit court of the county of Wood, rendered on the 5th day of October 1869, in a cause in chancery in said court then pending, in which John Gillespie and wife were plaintiffs, and said Charles P. Bailey and others were defendants.
Hon George Loomis, formerly judge of the circuit court of Wood county, pronounced the decree complained of.
Green, President, furnishes the following statement of the case:
John James in 1797 purchased of Joseph Spencer a tract of land of about seven hundred acres on Stillwell's creek, in Wood county. About the year 1800 John James died intestate leaving nine children, two of whom died intestate shortly afterwards; in June 1803 Esther, one of the daughters of John James, married John Gillespie; and on July 8, 1803, she and her husband, John Gillespie, sold to her brother, John James, then a resident of Wood county, all their interest in the real and personal estate of her father, John James, deceased, which was evidenced by an agreement or deed under the hands and seals of John Gillespie and his wife. This deed or paper was witnessed by three witnesses, but was never acknowledged for recordation by either John Gillespie or his wife. There was no privy examination of her. When this agreement or deed was executed, John Gillespie was not quite eighteen years of age. On the 31st of July 1832, John James assigned, by a paper under his hand and seal, three-sevenths of said tract of land to Charles P. Bailey; one of which sevenths he owned as heir of John James deceased: one of which he purchased from Seth Bailey and wife: and the third from Gillespie and wife, by the agreement of 1803. And about the same time Charles P. Bailey made this purchase of John James, he claims to have purchased the interest of all the other heirs of John James, deceased, in said tract of land. In 1820 Joseph Spencer instituted a suit against the heirs of John James to subject said land to the payment of about $1,000.00, which he claimed as a balance due him from John James, deceased, on account of the purchase of said land. This controversy lasted some twenty-six years, and was finally decided by a decree of the circuit court of Wood county, pronounced March 25, 1846, whereby the bill was dismissed. About 1833 John James brought a suit against Charles P. Bailey to vacate his agreement to sell his interest in said tract of land or to compel the payment thereof by Bailey according to his contract. This Bailey controverted partly because of the defect of title in that portion, which had been bought of John Gillespie and Esther his wife; this controversy also pended many years, being finally decided by a decision of the Court of Appeals of Virginia August 22, 1854, reported in 11 Gratt. 468. The decree required the payment by Bailey of the consideration he agreed to pay; and that he was entitled to no abatement thereof; but must take such title as John James had, who sold to him, the sale being not of the land, but of John James's interest in it without warranty. Some other matters were decided not necessary to notice. David Rowell, a creditor of Simeon, one of the children of John James, deceased, about 1853 also brought a foreign attachment against him, claiming rents of this tract of land to be in the hands of Charles P. Bailey, belonging to Simeon James. This suit pended till March 23, 1847, when by agreement of parties it was dismissed. This tract of land was in the possession of John James, deceased; but after his death his children left this State and were scattered through the west; and the possession of this tract of land by any of the heirs of John James was abandoned about the year 1819, and it lay entirely idle, unenclosed and unoccupied for about thirteen years, when Charles P. Bailey made his said purchase and then took possession of said land about 1832, and has since occupied and cultivated the same or portions of it. It does not appear that Gillespie and wife or their vendee John James, ever occupied this land, they both left this State many years ago; whether John James has resided in this State since his purchase of Gillespie and wife in 1803 does not appear. At June rules 1833 John Gillespie and wife instituted this suit against Charles P. Bailey in the circuit superior court of law and chancery for Wood county, asking to vacate this deed, or more properly speaking contract, of July 8, 1803, made by them with John James on the ground, that when it was executed, John Gillespie was an infant and Esther Gillespie a married woman, and asking that their one-seventh of said tract of land might be assigned them; and for general relief. On April 2, 1834, Charles P. Bailey filed his answer, in which he produces the agreement dated July 8, 1803; claims that he has purchased out all the other interests of the heirs of John James, deceased, in said land, and files deeds or agreements from them with him as evincing their sales; claims that the lapse of thirty years, since the execution of said agreement of 1803, bars the complainants from asking that it may be set aside; and insists that, if set aside, the $80.00 and interest, paid them for their interest in the land ought to be refunded to him. He also asserts, that a few days before the institution of this suit Gillespie and wife had sold and conveyed their interest in said land to John J. Jackson, and had no right to institute the suit; that Jackson was their counsel in this suit and was prosecuting it at his own cost and for his own benefit, and that this constituted champerty and maintenance, and for this reason the suit ought to be dismissed, and further insists that they had no right to ask a partition of this land, till they had by a distinct suit established their right to the undivided seventh of it claimed by them. On the filing of this answer the cause was remanded to rules, regular continuances of it were entered on the rule book till June rules 1834, when a general replication was filed to Bailey's answer; it was then continued regularly at rules to January 1835, when security for costs were required by the defendants, and was given at February rules 1835, and was then further regularly continued at rules till July rules 1836, when it was set for hearing as to Bailey; at August rules 1836 it was set for hearing as to all the other defendants; it was then continued from term to term till February 17, 1847, when the following decree was rendered:
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