Jarrell v. Cole

• Decision Date: 05 May 1914
• Docket Number: 1244.
• Citation: 215 F. 315
• Parties: JARRELL et al. v. COLE et al. [1]
• Court: U.S. Court of Appeals — Fourth Circuit

215 F. 315

JARRELL et al. v. COLE et al. ^[1]

No. 1244.

United States Court of Appeals, Fourth Circuit.

May 5, 1914

John E Blake, of Madison, W.Va. (Maynard F. Stiles, of Charleston W. Va., on the brief), for appellants.

Cary N Davis, of Huntington, W. Va (F. P. Murphy, of Madison, W Va., and Campbell, Brown & Davis, of Huntington, W. Va., on the brief), for appellees.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

KNAPP Circuit Judge.

This is an appeal from a decree of the District Court dismissing on demurrer the original and amended bills filed herein to set aside certain deeds as clouds upon the title of the lands therein described, which are alleged to be owned by the appellants. The material facts appear to be these:

Simeon Jarrell died intestate, in 1862, seised of several tracts of land, aggregating some 2,300 acres, in Boone county, W. Va., and leaving surviving him his widow and seven children, three sons and four daughters. The appellants are his heirs at law and those claiming under them. In 1871 a chancery suit, in the nature of a creditors' bill, was brought in the circuit court of Boone county for the purpose of subjecting the real estate of Simeon Jarrell to the payment of his debts. The facts concerning this suit, and the contentions of appellants in regard thereto, will be more fully stated as this opinion proceeds. In September, 1872, none of the parties having answered, the cause was referred to a commissioner in chancery, who made a report in February following. Upon the petition of two of the sons, the matter was recommitted to the commissioner, and he made a further report in September, 1873. Something over a year later exceptions to this report were sustained, and another commissioner appointed, one William Thompson, who afterwards made a report which was confirmed, save in a respect not now important, in September, 1875. Meanwhile there was an assignment of dower to the widow and some 300 acres set off to her. Subsequently, in May, 1876, a decree was entered in the chancery suit, which directed a sale of the lands in question unless certain debts therein specified were paid 'within 30 days after the rising of this court. ' In accordance with this decree, the lands were sold within the following year and deeds executed to the purchasers. Under these purchasers, or their successors in title, the appellees herein assert their claims to the timber heretofore conveyed to them.

As above stated, this suit seeks to set aside the various conveyances mentioned as clouds upon the title, and also to annul the decree of the Boone county circuit court and all proceedings thereunder, on the theory that this decree is void and of no effect, because the court was wholly without jurisdiction to make it. It is not denied and cannot be doubted that the circuit court had plenary jurisdiction of the subject-matter of the suit, and also of the several parties thereto, if they were properly served with process, or came in by voluntary appearance. The charge that the decree is a nullity rests, therefore, not on any inherent lack of judicial power, but on the alleged failure of the bill of complaint to set forth facts upon which judicial power could be exerted.

This makes it necessary to examine the bill in the light of appellants' contention. The caption of the bill reads as follows:

'The Bill of Complaint of Nelson Hill, Adm'r of George Hill, Dec'd, v. Floyd C. Jarrell, Administrator, and Virgin Jarrell, Administratrix of Simeon Jarrell, Dec'd, and in Their Own Right, H. H. Hopkins, Paris Jarrell, Simeon R. Jarrell, Charles N. Mullins and Acintha Mullins, His Wife, Henry C. Mullins and Caroline Mullins, His Wife, Floyd White and Emily White, His Wife, David Mullins, and Harriet Mullins. To the Hon. C. W. Smith, Judge of the 12th Judicial Circuit.'

The bill then alleges that a judgment for the use of plaintiff had been recovered against the administrator and administratrix of Simeon Jarrell, that execution had been issued on such judgment and returned unsatisfied, and that copies of the judgment and execution marked as exhibits were filed with and asked to be made a part of the bill. It is further averred that Simeon Jarrell died intestate, seised and possessed of certain tracts of land, a list of which is given, that the title thereto appears to be vested in his heirs, and that the personal estate of the decedent is insufficient to pay the plaintiff's judgment. The prayer of the bill is that the real estate of Jarrell be decreed to be sold to pay the aforesaid judgment and costs of suit, that leave be granted to other creditors of the deceased 'to come in and participate in the advantages of this suit,' that a commissioner be appointed to ascertain the claims of the several creditors, and to perform such other and further order of the court as may be required in the premises, and for general relief.

It appears that the persons named in the caption of the bill included all the heirs at law then living, and that each of them was served with a summons or notice to appear before the judge of the circuit court, at rules to be held on the first Monday of the following August, 'to answer a bill in chancery exhibited against them in our said court by Nelson Hill, administrator of George Hill, deceased.'

The first and principal contention seems to be that this bill failed to confer jurisdiction to sell the lands in question, because it did not make the heirs of Simeon Jarrell, who became the owners on his decease, parties to the suit, and therefore did not bring them or the lands they inherited before the court, and because it did not set up a claim or show the existence of debts for which the estate of the decedent was liable, or allege the insufficiency of personal property belonging thereto.

To the objection that the heirs were not made parties, we think convincing answer is given by the West Virginia Code of 1868 (chapter 125, Sec. 37), which outlines the form in which the plaintiff's bill may be framed, and also provides that:

'Every person designated in the caption of such bill as a defendant shall be a defendant therein, without a prayer that he be made such, and shall be required to answer the bill in the same manner and to the same extent as if he were therein called upon to do so.'

We discover nothing in the bill under review which prevents the application of this provision, and are therefore of opinion that it operated to make the persons named in the caption parties to the suit and bring them properly before the court.

It is further said that the bill contains no averment which connects these persons with the subject-matter of the suit, or shows that anything to be done therein would affect their interests as owners of the lands in question or otherwise. But it is alleged that Simeon Jarrell died intestate, that he was possessed of certain lands which are described by tracts, and that such lands 'appear vested' in his heirs at law. It is not in terms stated that the persons sued are the heirs of the decedent, but this would seem to be the natural and reasonable inference from the express allegations. If the bill be otherwise sufficient, we are persuaded that the failure to show by specific averment the identity between the named defendants and the heirs of the intestate cannot be regarded as an omission which deprived the court of jurisdiction.

It is also asserted that there is no showing of any debt or claim for which the estate of the decedent was liable, or for which the real estate he left could be sold. But the bill avers that plaintiff had recovered a judgment against the personal representatives of Jarrell's estate, that execution had been issued and returned unsatisfied, and that the personal property was insufficient to pay this judgment. True, it is not alleged that the personal property was insufficient to pay all the debts of the estate; but the prayer for relief asks that leave be granted to creditors generally to come in, and that a commissioner be appointed to ascertain their several claims. If these allegations, coupled with the others mentioned, did not suffice to give the court jurisdiction, it must be because as matter of law the judgment described in the bill is not a judgment against the estate, but only against the administrator and administratrix as individuals. But the bill states that a copy of this judgment was filed with and made a part of the same, and we think it should be presumed, for the purposes of this case, that the judgment actually rendered was a judgment against the estate. Certainly the contrary presumption is not to be indulged for the purpose of defeating jurisdiction.

In this connection it seems proper to refer to the controverted appearance of the widow and heirs of Jarrell in the chancery suit. After the second report of the first commissioner was presented, and in September, 1874, exceptions to both his reports were filed, setting up in substance that the accounts of the administrators had not been settled, that the creditors had not been notified as required by statute, and that the widow had not elected whether to take her dower in...