Hannah v. Beasley
| Decision Date | 01 June 1949 |
| Docket Number | 10107. |
| Citation | 53 S.E.2d 729,132 W.Va. 814 |
| Parties | HANNAH v. BEASLEY. |
| Court | West Virginia Supreme Court |
Submitted April 19, 1949.
Appeal from Circuit Court, Summers County.
Syllabus by the Court.
To justify the application of the doctrine of res judicata '* * * there must be a concurrence of four conditions namely: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons, and of parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.' Opinion Marguerite Coal Co. v. Meadow River Lumber Co., 98 W.Va 698, 127 S.E. 644.
Robert J. Ashworth, Beckley, for appellant.
P. J. Carr and Percy H. Brown, Hinton, for appellee.
In the year 1943, Lewis Richmond was the owner of a certain lot or parcel of land, in the City of Hinton, Summers County, West Virginia, on which a three story brick building was located. His wife had died during the year 1942, and one Ruby Beasley, the defendant herein, lived with Lewis Richmond and his wife, up to the date of the death of the wife, and thereafter with Lewis Richmond until his death, and allegedly was to be compensated for her services by a devise to her by Richmond of the said lot in Hinton. On February 26, 1943, Lewis Richmond executed a testamentary paper, evidently intended as his last will and testament, which contained the following:
'I give, devise, and bequeath to Mrs. Ruby Beasley, the brick building and the land thereon situate on Main Street in the City of Hinton, and number and designated as house 176 on said street, she to have a fee simple title to this property.'
Thereafter on March 29, 1945, more than two years after the execution of the testamentary paper aforesaid, said Lewis Richmond entered into a contract in writing with Maude R. Hannah, the plaintiff herein, which reads as follows:
This writing was later acknowledged by Maude R. Hannah, after the death of Lewis Richmond, and recorded in the office of the Clerk of the County Court of Summers County, on July 25, 1946.
On January 8, 1946, Lewis Richmond, who was then 85 years of age, married a lady of the age of 83 years. Under the provisions of Code, 41-1-6, the effect of this marriage was to revoke the testamentary paper aforesaid. On February 15, 1946, Lewis Richmond died intestate leaving no issue, but leaving thirty-two nephews and nieces. An attempt was made to probate the said testamentary paper as the will of Lewis Richmond, but probate was refused by reason of the statutory provision aforesaid.
At April Rules, 1946, Ruby Beasley filed her bill in equity, in the Circuit Court of Summers County, against Mary Richmond, in her own right and as administratrix of Lewis Richmond, deceased, Maude R. Hannah, the plaintiff herein, and numerous other persons alleged to be heirs-at-law of Lewis Richmond, deceased. In her bill in said cause Ruby Beasley alleged her services to Lewis Richmond and his wife, and the agreement on the part of Lewis Richmond to compensate her therefor by devising to her a certain lot with brick building thereon, located at 176 Main Street, in Hinton, West Virginia. No allegation was made in said bill with respect to the contract now relied on by the plaintiff in the case at bar. There was filed with said bill a copy of the testamentary paper executed by Lewis Richmond as his last will and testament. Regular proceedings were had in the case, and a joint answer to the bill was filed by Mary E. Richmond in her own right, and as administratrix of the estate of Lewis Richmond, deceased, and Maude R. Hannah, the plaintiff herein, in which answer they denied the right of Ruby Beasley to relief prayed for in her bill. Among other allegations in said answer was the following:
'The defendants further alleges that it is not true, as stated in the plaintiffs bill, that said Lewis Richmond had refused to sell the property in question, giving as his reason that he had given said property to Ruby Beasley, but to the contrary, the defendants alleges that he did try to sell said property and entered into a writing agreeing to sell the same to the defendant, Mrs. Maude Hannah, which writing is in her possession and will be later filed with the evidence to be taken in this case.'
Evidence was taken in the case and Maude R. Hannah testified at some length respecting the contract of sale of March 29, 1945, between the witness and Lewis Richmond, and the original of said contract was filed in the case as part of her deposition. On October 16, 1946, the Circuit Court of Summers County entered a decree granting to Ruby Beasley the relief prayed for in her bill, and specifically enforced the contract alleged in her bill, against the heirs of Lewis Richmond, deceased, of whom Maude R. Hannah was one. The decree provided for the conveyance of the said lot of land to Ruby Beasley, subject to the dower interest of Mary Richmond, widow of Lewis Richmond, deceased. No appeal was taken from said decree, and the same having become final, Ruby Beasley was understood to own an estate fee simple in the said lot, subject to the dower interest of the widow of Lewis Richmond.
At November Rules, 1947, plaintiff, Maude R. Hannah, filed her bill in chancery against Ruby Beasley, in the Circuit Court of Summers County, in which she set up the contract of sale executed between her and Lewis Richmond, dated March 29, 1945, copied above, and asked that the same be specifically enforced, by a conveyance of the property described therein on the terms stated in said contract. The defendant appeared and filed her demurrer to the said bill, assigning as grounds that: (1) It appeared on the face of the bill that Mary Richmond was a necessary party thereto; (2) that there was no privity of contract between plaintiff and defendant; (3) that it appeared on the face of the bill that the matters involved therein had been fully adjudicated and settled by the decree of October 16, 1946, in the chancery cause of Ruby Beasley against Mary Richmond, Maude R. Hannah, and others; and (4) that the bill admits ownership of said property by Ruby Beasley subject to the dower of Mary Richmond.
At the same rules, December, 1947, the defendant Ruby Beasley filed her plea of res judicata in which is averred the proceedings in the case of Ruby Beasley against Mary Richmond, and others, aforesaid, including the filing of the answer of Maude R. Hannah, and the depositions taken in said cause, with which the contract of March 29, 1945, was filed, and ended the plea with the following prayer:
'Wherefore this defendant prays judgment of this honorable court whether she shall be compelled to make any further or other answer to the said bill, and prays hence to be dismissed with her reasonable costs and charged in this behalf wrongfully sustained.'
To this plea Maude R. Hannah filed her answer in open court on January 21, 1948 in which she says:
'That she did not in her answer seek relief in the nature of specific performance upon the contract set forth in her answer to the bill of complaint; that while she did introduce said contract in the evidence taken in said cause that the same was done only for the purpose of showing, if the same did show, that the said Lewis Richmond did not orally contract with the said plaintiff, Ruby Beasley, in the manner and form as alleged by said Ruby Beasley; that said contract was not described in said pleadings nor was any relief asked for and on behalf of the said Maude R. Hannah in said chancery cause on said contract, and your plaintiff further says that said contract was not admissible in said chancery cause of Ruby Beasley vs. Mary R. Richmond, et als, except for the sole purpose of evidence and not as a contractual obligation for the reason that the said parties involved were not identical and that there was no answer in the nature of a cross-bill, asking affirmative relief, filed, and there were no processes issued upon any cross-bill; that many parties were proceeded against by order of publication and that there was no order of publication as to said parties upon a cross-bill, and that said contract was therefore in litigation in said cause, only for a limited purpose, and which limited purpose was so stated at the time that said contract was introduced, and your plaintiff therefore says that said contract and the matters therein contained, are not res judicata as will more fully appear by the decree entered in said cause in which said contract is not mentioned.'
On the same day, January 21, 1948, the court entered a decree overruling the demurrer filed in the case, but sustaining the plea of res judicata filed by the defendant, and further decreeing that:
'The Court is...
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