Holland v. Joyce, 12859

• Decision Date: 14 December 1971
• Docket Number: No. 12859,12859
• Citation: 155 W.Va. 535,185 S.E.2d 505
• Court: West Virginia Supreme Court
• Parties: Etta C. HOLLAND et al. v. Frances McClain JOYCE et al. Etta C. HOLLAND et al. v. Frances McClain JOYCE. Frances McClain JOYCE et al. v. John W. McCLAIN et al.

Page 505

185 S.E.2d 505

155 W.Va. 535

Etta C. HOLLAND et al. v. Frances McClain JOYCE et al.

Etta C. HOLLAND et al. v. Frances McClain JOYCE.

Frances McClain JOYCE et al. v. John W. McCLAIN et al.

No. 12859.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1971.

Decided Dec. 14, 1971.

Syllabus by the Court

1. A trial court, pursuant to the provisions of R.C.P. 42, has a wide discretionary power to consolidate civil actions for joint hearing or trial and the action of a trial court in consolidating civil actions for a joint hearing or trial will not be reversed in the absence of a clear showing of abuse of such discretion and in the absence of a clear showing of prejudice to any one or more of the parties to the civil actions which have been so consolidated.

2. A party to a civil action may testify as a witness in regard to a personal transaction or communication between such witness and a person who is deceased at the time such testimony is given without violating the provisions of Code, 1931, 57--3--1, as amended, if the testimony thus given is against the interest of the party so testifying as a witness.

3. 'So long as a deed is within the control, and subject to the dominion and authority of the grantor, there is no delivery, without which there can be no deed.' Point 2 Syllabus, Lang v. Smith, 37 W.Va. 725 (17 S.E. 213).

Greene, Ketchum & Baker, Menis E. Ketchum, Huntington, for appellants.

Herbert H. Henderson, Robert O. Ellis, Huntington, for appellees.

CALHOUN, Judge:

This case is before the Court on an appeal by Frances McClain Joyce and her husband, Harrison T. Joyce, from a judgment of the Circuit Court of Cabell County embodied in an order entered on December 27, 1968, in three civil actions which had been consolidated for consideration and decision in the trial court.

Parties to the three civil actions, with one exception, are the heirs at law of Mary E. McClain, who died intestate on June 27, 1959. Upon the death of Mary E. McClain, she was survived by the following sons and daughters: Etta C. Holland, James S. McClain, Frances McClain Joyce, Henry McClain, John W. McClain, Grace Lockett and William A. McClain. After the death of his mother, William A. McClain, died intestate survived by two daughters, Kathleen Johnson and Willa Holman, as his sole heirs at law. Henry McClain died in 1962, survived by no widow or child.

The three civil actions, generally speaking, involve questions pertaining to a proper distribution of the assets of the estate of C. S. McClain, who died intestate in 1951, but more particularly the assets, real and personal, of the estate of his widow, Mary E. McClain.

C. S. McClain was the operator of the McClain Funeral Home in the City of Huntington. Upon his death intestate in 1951, he was survived by his widow, Mary E. McClain, and the children born to the marriage of this couple. There was no formal administration of his estate. In connection with the operation of the McClain Funeral Home, the husband and wife maintained and operated a cemetery known as the Bethel Memorial Park Cemetery. This cemetery property contained 10 1/8 acres of real estate and was owned by Mary M. McClain by reason of a deed of conveyance made to her in 1935. For the sake of convenience, we will refer hereinafter in this opinion to the two aspects of the business as the funeral home and as the cemetery.

Legal title to the real estate which is referred to in the record as the funeral home was in the name of Mary E. McClain. This real estate consisted of a ten-room dwelling located at 1644 Ninth Avenue in the City of Huntington; a nearby building known as the chapel; and a third building situated nearby which was known as the morgue, the upstairs of the same building having been used as a lodge hall.

During the latter years of the life of C. S. McClain, after his death intestate in 1951 and until the death of his widow, Mary E. McClain, in 1959, much of the work involved in the operation of the funeral home was performed by his children, primarily by Frances McClain Joyce, a daughter, and William A. McClain, a son. Checks representing obligations of the funeral home were signed by C. S. McClain during his lifetime. Apparently William A. McClain and Frances McClain Joyce were paid $50 each as a consequence of each funeral conducted by the funeral home prior to the death of their father.

After the death of C. S. McClain, the checking account for the funeral home business was placed in the name of his widow, Mary E. McClain, and she thereafter signed checks in payment of obligations of the funeral home.

Following the death of Mary E. McClain, the funeral home continued to be operated by members of the family, perhaps primarily by Frances McClain Joyce. For a period of time antedating the death of C. S. McClain and Mary E. McClain, their daughter, Frances McClain Joyce and her husband lived in a home which was a part of the cemetery property. In the meantime, the husband continued to teach school in Mingo County, and Frances McClain Joyce was employed from time to time in different positions of employment, which positions of employment were not related to the operation of the funeral home or the cemetery. Frances McClain Joyce lived with her husband in the home at the cemetery during weekends when he returned from Mingo County. Frances McClain Joyce lived primarily with her mother in the family home, which was a part of the funeral home business, when her husband was in Mingo County.

In 1962, the State Road Commission acquired by eminent domain proceedings a small portion of the cemetery real estate which resulted in a jury verdict in the Circuit Court of Cabell County in the amount of $18,256.69, including interest. In connection with the distribution of the recovery in the eminent domain proceedings, it became known to other heirs, apparently for the first time, that there was on record in the office of the Clerk of the County Court of Cabell County a deed by which ostensibly Mary E. McClain had previously conveyed to Frances McClain Joyce and Harrison T. Joyce, her husband, the eastern one-half of the 10 1/8 acres of cemetery property. Following a metes and bounds description of the eastern half of the cemetery property, the deed contained the following language: The eastern half of above described property to include Care Takers Cottage, barn and garage.'

The deed purported to have been executed by Mary E. McClain, as the grantor, on June 5, 1958, and to have been acknowledged by her on the same date before her son, John W. McClain, as a notary public. Nevertheless, a certificate of the Clerk of the County Court of Cabell County, appearing on the deed, discloses that the deed was not admitted to record in his office until August 7, 1959.

On August 17, 1965, the Circuit Court of Cabell County entered an order providing for the distribution of the sum of $18,256.69, representing the amount of the award, pursuant to a jury verdict, for a portion of the cemetery property acquired in the eminent domain proceedings instituted by the State Road Commission. In the distribution of the fund, an award was made to Frances McClain Joyce and her husband in an amount which was predicated on the validity of the deed made by Mary E. McClain, as the grantor, to Frances McClain Joyce and her husband, as grantees. According to some or all the other heirs of Mary E. McClain, this constituted the first knowledge they had concerning the deed to Frances McClain Joyce and her husband, Harrison T. Joyce.

On November 10, 1965, at the instance of some of the heirs of Mary E. McClain, the Twentieth Street Bank of Huntington qualified as administrator of the estate of Mary E. McClain, deceased. The administrator made a settlement of its accounts before a commissioner of accounts. By an order entered on December 30, 1966, the County Court of Cabell County set aside the recorded settlement of the accounts of the administrator because of a controversy among the beneficiaries of the estate, particularly in relation to rights asserted by Frances McClain Joyce.

In October, 1966, Etta C. Holland and James S. McClain, as plaintiffs, instituted in the Circuit Court of Cabell County a civil action against Frances Mc.Clain Joyce, her husband, and other heirs of Mary E. McClain, as defendants, for the purpose of having an adjudication that the deed from Mary E. McClain to Frances McClain Joyce and her husband was invalid for various reasons alleged in the complaint. Subsequently an amended complaint was filed in the same civil action. The principal ground alleged in the amended complaint as a basis of the invalidity of the deed was that it was never delivered by the grantor to the grantees or to either of them. On this ground, the trial court ultimately adjudged that the deed was invalid. By an order entered on October 11, 1967, the trial court held that the validity of the deed had not been in issue in the eminent domain proceedings and that, therefore, the question of the validity or the invalidity of the deed was not in any sense determined or adjudicated in the eminent domain proceedings.

On or about December 10, 1966, Etta C. Holland, John W. McClain, Kathleen Johnson and Willa Holman, as plaintiffs, instituted in the Circuit Court of Cabell County a civil action against Frances McClain Joyce, as the defendant. The plaintiffs alleged in their complaint in this action that, following the death of Mary E. McClain, her heirs entered into an agreement by the terms of which it was agreed that Frances McClain Joyce would continue the operation of the funeral home business and the cemetery as the agent and representative of all the heirs of Mary E. McClain; and that Frances McClain Joyce would receive $50 for each funeral as her compensation for managing and operating the funeral home and the cemetery. The plaintiffs, generally speaking, prayed that Frances McClain Joyce be required to make a full...