Hinchman v. Ballard
| Decision Date | 23 February 1874 |
| Citation | 7 W.Va. 152 |
| Parties | HINCHMAN, ADMR. v. BALLARD, ADMR. |
| Court | West Virginia Supreme Court |
I. When the court erroneously makes an order that unless a person who is not a party to the bill, is so made, within thirty days from the date of the order, by amended bill, that the plaintiff's bill should stand dismissed, with costs to the defendants, without prejudice to any other suit, & c., and the plaintiffs failed to make such party a defendant by amended bill, or otherwise, within the thirty days or afterwards. And the defendants afterwards, and after the thirty days had expired and before any other action was taken in the cause by the court, or any of the parties appeared in court and asked and obtained leave of the court, without objection, to file a cross bill in the cause, against the plaintiffs in the original bill, and, in pursuance to such leave, did file such cross bill, to which the defendants filed their answers and plaintiffs and defendants afterwards took and filed the depositions of various witnesses in support of their pretentions in the original cause, and various orders and decrees were afterwards made by the court in the proceedings, on both the original and cross bills including the decree adjudicating the principles of both causes from which the appeal is taken as though said order of conditional dismissal had never been made, without objection being made or taken, by the court or any of the parties to the cause, proceeding further in the cause, at any time after the expiration of the said thirty days: It is too late for the appellants, who were defendants below, to be heard in the appellate court, to object that the original cause at and after the expiration of the thirty days from the date of said order of conditional dismissal become, and was, dismissed by virtue of such order, and that all subsequent proceedings of the court in the causes, were, in consequence thereof irregular and inoperative or void. In such case the appellate court will ordinarily consider that the causes were proceeded with by the court by consent of parties.
II. If in the case above stated, the person so directed to be made a party to the original cause, was a necessary and proper party thereto, under the circumstances above stated, the appellate court will not reverse and set aside the decree of the court below adjudicating the principles of the cause, because of such conditional order of dismissal and give full effect thereto; but in such case the appellate court will ordinarily reverse the decree appealed from, and direct such person to be made a party, and the cause to be proceeded with, as though such conditional order of dismissal had never been made.
III. A copy of an order of the county court of Allegheny county, Commonwealth of Virginia, attested by the clerk of such court, may be received and read as evidence in lieu of the original, by the courts of this State, under the provisions of the act of the Legislature of 1866, upon that subject, which is incorporated into the Code of this State, of 1868, in sections five, six and seven of chapter one hundred and thirty.
IV. A copy of such order, so attested, is proper evidence of the appointment, by the county court of said Alleghany county, of a committee of an insane person.
V. When a demurrer is filed to a bill and the court proceeds to adjudicate, and does adjudicate, the principles of the cause, in favor of the plaintiff, without first acting pro forma upon the demurrer, it will be considered that the court in rendering the decree adjudicating the principles of the cause considered the sufficiency of the bill, and substantially overruled the demurrer thereto, and this Court will not reverse the decree, adjudicating the principles of the cause, for this cause alone.
VI. L. by contract in writing, under seal executed by him, and J. and H. sells to J. and H. several tracts of land for a stipulated price to be paid by J. and H. to L. at stated times; and under and by virtue of the contract of sale. J. and H. are put in actual possession of the lands by L. and J. and H. in pursuance of such contract, pay a large amount of the purchase money, but not all of it, and it is applied in discharge of purchase money liens existing against part of the land. Afterwards, and while J. and H. are in possession of the land under such contract, and before all the purchase money is paid by J. and H., L. P. H. is appointed committee of L., who is then insane, by the county court. After his appointment as committee, L. P. H. filed a bill in the circuit court of the county where the land was situated against J. and H. and others, to rescind and annul said contract of sale, upon the ground that L., at the time of its execution, was insane. Afterwards, and while the suit was pending, L. P. H., committee, and J. and H. executed a paper writing in these words, to-wit: " This article of agreement, made and entered into this the 29th day of March, 1861, between Lewis P. Holloway, committee of D. B. Layne, of the one part and William Hinchman, Jr., and Thomas Johnson, of the other part, witnesseth: That the said Lewis P. Holloway pledges himself to come to the house of the said Thomas Johnson on the 18th day of April, 1861, for the purpose of consummating a compromise in a suit in chancery, instituted in the circuit court of Monroe county, in which said Holloway is plaintiff and the said Hinchman and Johnson are defendants, upon the following terms here agreed upon to-wit: That the said Lewis P. Holloway binds himself to pay to said Johnson and Hinchman the amount of money they have paid John Echols for land bought of D. B. Layne, with interest from the time of said payment until all is refunded by said Holloway; and said Holloway is to return them, the said Hinchman and Johnson's bonds given to said Layne for purchase money of said land; and the said Holloway is to pay said Johnson and Hinchman's lawyer's fee, amounting to $200, and is to dismiss the said suit upon the terms, to-wit: that each party is to pay his own costs in said suit. The said Johnson and Hinchman are to pay to the said Holloway rent for the said land during the time they occupied it, and the said Johnson and Hinchman are to have possession of said land until Christmas, and have the privilege of moving their grain, & c., and are to pay said Holloway for the corn and oats they sow and raise this season, the usual grain rent; and the said Holloway is to pay the said Johnson and Hinchman for the improvements they have made upon said land, and if they cannot agree as to the value of said improvements, they are to choose disinterested persons to value the same. The said Holloway is to take for the rent of the islands rented by the said Hinchman and Johnson the usual grain rent or the rent that Johnson and Hinchman are to get for same. Witness the following signatures and seals:
| (Signed.) | LEWIS P. HOLLOWAY, COM. | (Seal.) |
| THOMAS JOHNSON, | (Seal.) |
| WILLIAM HINCHMAN, JR., | (Seal.) |
L. P. H. died after the date of this agreement without ever having done any act towards consummating the same. L. also died insane. J. and H. continued in the possession of the lands as before. J. and H. never saw L. P. H. after the date of said agreement. After the death of L. P. H. and L., and in October, 1866, J. and H., still in the possession of said lands and without having actually performed any part of said agreement, filed their bill, in the circuit court of the county of Monroe, in this State, where the lands are situated, against the personal representative and legal heirs of L., & c., for the specific execution of said agreement of compromise; and the bill does not allege that L. was insane at the date of the contract by him to plaintiffs-- HELD:
1. That as the said agreement of compromise, if it were complete and final and carried into effect, would change the nature and condition of the estate of L. (the insane person), L. H. P., as committee had no authority to make the same, so as to bind the personal representative and legal heirs of L. without the approbation or direction of the court by which he was appointed committee, or of some other court having jurisdiction of the subject.
2. That as the said agreement of compromise was made by the committee without the approval or direction of the court by which he was appointed, or of any court having jurisdiction of the subject, a court of equity will not decree a specific execution thereof, as against the personal representatives and legal heirs of L., unless it appears to the satisfaction of the court that the agreement was beneficial and advantageous to L. or his estate.
3. Although a committee of an insane person may sue to set aside a deed or contract of the insane person, touching his estate, made prior to the time he was appointed committee, upon the ground that such insane person was insane at the time of making such deed or contract of sale: Still if the committee does bring such suit, and, while the suit is pending, he makes an agreement of compromise with the defendants, which, if carried into effect, will change the nature and condition of the estate of the insane person, without the direction or approval of the court having jurisdiction of the subject, a court of equity will not in another suit, decree specific performance of such agreement of compromise against the personal representatives and legal heirs of the insane person, unless it appears that the insane person was insane at the time of the making of the deed or contract, and that the agreement of compromise was beneficial and not injurious to the insane person or his estate.
4. Generally, the conduct and acts of a committee of an insane person, in relation to the estate of such insane person, are...
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