Hall v. Hall.

• Decision Date: 17 November 1877
• Citation: 12 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: Hall v. Hall.

12 W.Va. 1

Hall

v.Hall.

Supreme Court of Appeals of West Virginia.

Decided November 17, 1877.

1. Where a judgment or decree of a court of general civil juris-

diction is offered in evidence collaterally in another suit, its-validity cannot be questioned, for errors which do not aftect the jurisdiction of the court.

2. The seizure of the property of the defendant under the proper

process of the court, is generally the foundation of the court's jurisdiction in proceedings inrem, and defective or irregular affidavits, though they might reverse a judgment or decree in such case for error, in departing from the directions of the statute, do not render such a judgment or decree, or the subsequent proceedings void.

3. Where there is a valid attachment and levy of the same, a de-

cree of a court of competent jurisdiction, an order or decree of sale, and a sale bv a commissioner appointed by the court, and confirmation thereof, with directions to the commissioner to make a deed to the purchaser, and commissioner's deed made to the purchaser, or his assignee by deed, the proceeding cannot be held void when introduced collaterally in another suit; nor can such deed of the commissioner be held void in such other suit, because not made to the purchaser, but, to his assignee by deed, in which the said commissioner was directed by the purchaser to make the deed for the realty to such assignee, if the execution and delivery of such deed of assignment of the purchaser be properly proved, when such deed of the commissioner to such assignee is offered in evidence at the trial, in connection with a copy of the proceedings had in the chancery cause, in which said realty was decreed to be sold, sale made and confirmed, &c. In such case, said deed of the commissioner to such assignee should be admitted as evidence tending to show title in such assignee.

4. Such deed, made by such commissioner to such assignee by deed, passes the whole title and interest in the realty, sold and conveyed, that was vested in the debtor from whence the same was sold by the proceedings in chancery, to such assignee. And especially should it so be held in an action of ejectment, brought by such debtor against such assignee to recover the property so conveyed.

5. It seems that facts, stated in one bill of exceptions, cannot be noticed by an Appellate Court in considering another, except the first bill of exceptions is referred to in the second, &c. and except also, when a bill of exceptions is taken after all the evidence has been submitted to the jury, and it purports to set out all the evidence, the evidence set out in this bill of exceptions may be looked^to in considering theftuestion raised in another bill of exceptions, taken in the progress of the trial.

Supersedeas to a judgment of the circuit court of the county of Ritchie, rendered on the 30th day of April iM a certain action of ejectment then in said court Haymond, Judge, who delivered the opinion of the Court states the ease sufficiently.

The Hon. James Monroe Jackson, judge of the fifth judicial circuit, presided at the trial below.

C. Boggess, C. C. Cole and R. S. Blair, for the plaintiff in error:

1. Where the record of a judgment or decree of a court of general jurisdiction is offered in evidence collaterally in another suit, it cannot be impeached except tor the want of jurisdiction in the court that rendered it. And such inquiry is confined to the question whether such court had jurisdiction of the subject matter of the suit, and cannot extend to the question, whether it had jurisdiction in the particular case: Fisher v. Bassett, 9 Leigh 119; Cox et al v. Thomas, 9 Gratt. 328; Grignon v. Astor, 2 Howard (U. S.) 319; Voorhees v. Bank of U. 8., 10 Peters 449; Cooper v. Reynolds, 10 Wallace 308.

2. Where in a suit in equity, or other legal proceeding to sell land, the court appoints a commissioner for the purpose of making such sale, and he makes the same, which is afterwards confirmed by the court, and said commissioner directed to make a deed therefor to the purchaser, he may make such deed to the assignee of the purchaser; and such deed will pass to such assignee all the right, title and interest in and to said land, of the person whose interest is so sold: Voorhees v. Bank of U. S., 10 Peters 449; Blount v. Davis, 2 Devreaux (N. C.) 19; McLurev. Englehart, 17 Ills. 47; Frizzle v. Veach, I Dana 211; Summers v. Palmer, 10 Richardson (S. C.) 38; MoElmurry v. Ardis, 3Strob. (Law S. C.) 212; Swink v. Thompson, 13 Mo. 336; Mathews v. Clifton, 13 Smeeds & Marshall 330; Elinger v. Moriarty, 10 Iowa 78; Brooks v. Radcliffe, 11 Iredell 321; Proctor v. Farnum, 5 Paige 614; Ewing v. Higley, 7 Ohio 198; Camp-' belly. Baker, 6 Jones (N. C.) 255.

3. Where the owner of land failed for five successive years, from and after the year 1864, to have his land

placed on the books of the proper assessor, and charged with State taxes thereon, and failed to pay said taxes thereon for each of said years, his title thereto became forfeited and vested in the State. And any person who has been in possession of such land for such time, claiming title thereto, and has been charged with such taxes for said years, on the proper assessor's books, and actually paid the same, is entitled to the benefit of such forfeiture: Code of W. Va., (1869) ch. 31, §34; Constitution of 1872, art, 8.

4. This forfeiture became perfected without any judgment or decree, or other matter of record: Wild's Lessee v. Serpell, 10 Gratt., 405; Staatsv. Board, 10 Gratt. 400; Levasser v. Washburne, 11 Gratt. 572.

John A. Hutchinson, for the defendant in error.

Haymond, Judge, delivered the opinion of the Court:

This is an action of ejectment brought by the plaintiff against the defendant for the recovery of "about two and seven-eighths acres of land, that is to say, all that certain house and lot of land situate in the town of Harrisville," and described in the declaration by metes and bounds. The action was brought in the circuit court of Ritchie county, and the defendant was served with a copy of the declaration on the 18th day of July 1873. At the August rules 1873, the declaration and notice were returned executed, and filed in the clerk's office. At the same rules the defendant appeared by his attorney and pleaded not guilty. On the 29th day of April 1874, at a term of said circuit court the parties appeared in court by their attorneys; and thereupon a jury came who were duly elected, tried and sworn according to law. On the 30th day of April 1874, during the same term of the court the jury found "'.that the plaintiff has title and right to the possession of the prem- ises said in the declaration mentioned, and bounded as follows, (describing the boundaries in their verdict as given in the declaration) "containing two and seveneighths acres with appurtenances; and that the plaintiff had title and right to the possession of said premises in fee simple at the commencement of this action; and that the defendant unlawfully withholds from the plaintiff the possession of said premises." Upon the rendition of said verdict the defendant said to the court "that judgment ought not to be rendered upon the said verdict, because the same did not find what estate the plaintiff had therein, and because the same was otherwise not legally obtained." The court thereupon decided that the said verdict was sufficient, and rendered judgment upon said verdict, that the plaintiff recover the premises, possession and estate mentioned and described in the verdict aforesaid, and his costs by him expended; and leave was given the defendant to sue out a writ of possession. Upon the trial of the cause it appears that the defendant tendered his four bills of exceptions, to opinions of the court, numbered respectively, one, two, three and four, which were signed, sealed and made a part of the record. The defendant after the rendition of said judgment obtained from this Court a supersedeas thereto; and thus the cause is before us for review and decision, as to whether there is error in the said judgment of the circuit court, for which it should be reversed. The plaintiff in error hath assigned the following errors in said judgment, viz: 1st. The court erred in excluding the deed as evidence of title as set forth in the first bill of exceptions. 2d. The court erred in giving the instruction prayed by the plaintiff as set forth in the second bill of exceptions. 3d. The court erred in giving the instructions set forth in the third bill of exceptions. 4th. The court erred in refusing to give the instructions set forth in the fourth bill of exceptions. 5th. The court erred in overruling the defendants motion in arrest of judgment. As many of these assignments of error will be considered as may be deemed proper in the condition of the record.

As to the first assignment of error: By bill of exceptions number one, it appears that after the plaintiff had given evidence tending to show that he had purchased the land in controversy in 1856, and taken immediate possession thereof under his said purchase, and acquired title to the land in controversy by deed from John P. Harris, commissioner, to him bearing date on the 29th day of May, 1861; and that the defendant was in the possession of the said land at the time of the institution of this suit; and that the plaintiif had held peaceable possession of the said land up to 1864; and that defendant had admitted that he claimed to hold said land under the title of the plaintiff. The defendant offered to give in evidence a deed in the words and figures following, to-wit:

"This deed was made this 23d day of May 1864, between M. P. Amiss, of Wood county, West Virginia and Amelia Hall, of the second part, and Moses S. Hall, ot Ritchie county, and State aforesaid, of the third part.

"Whereas on the 23d day of March 1864, a decree was rendered in the circuit court of Ritchie county, West Virginia, confirming the sale of a certain house and...