Lake O'Woods Club v. Wilhelm
| Decision Date | 08 February 1944 |
| Docket Number | 9560. |
| Citation | 28 S.E.2d 915,126 W.Va. 447 |
| Parties | LAKE O'WOODS CLUB v. WILHELM, Judge, et al. |
| Court | West Virginia Supreme Court |
Robt. T. Donley and Richard E. Davis, both of Morgantown, for petitioner.
J V. Gibson, of Kingwood, for respondents.
This is an original jurisdiction proceeding in which the petitioner seeks a writ prohibiting the Circuit Court of Preston County from further proceeding to enforce the alleged lien of an attachment issued out of said court in the equity suit of Ray Swaney against Mark A. Rigg and others, by the sale of a tract of 533.6 acres of land, situated in Preston County, now the property of the petitioner, but levied on as the property of Mark A. Rigg and Sarah Rebecca Rigg. The petitioner is the purchaser of said land pending the suit in which said attachment was issued and levied. The crucial question is whether equity had jurisdiction to entertain the suit aforesaid. If it had such jurisdiction, then, if grounds existed therefor, an attachment could properly issue otherwise not. The controversy arose out of a sale of standing timber made by Mark A. Rigg and Sarah Rebecca Rigg to G. M. Benson, who later conveyed the same to Summit Lumber Company, which in turn sold said timber to Ray Swaney, and Riggs, subsequent to the conveyance of the timber, conveyed the land on which it was located, and the petitioner herein became the owner thereof. Mark A. Rigg and Sarah Rebecca Rigg will be hereinafter referred to in this opinion as "Riggs", in the plural; Ray Swaney will be referred to as "Swaney"; and Lake O'Woods Club will be referred to as the "petitioner". To reach a correct understanding of the issue presented, a statement of the events leading up to the issuance of the attachment is necessary.
On and after July 31, 1928, Riggs claimed to be the owners of the tract of 533.6 acres under a deed from Charles E. Phillips to them, bearing said date. At that time one Charles N. Ryan claimed to be the owner of 100 acres of land located within the boundaries of the 533.6-acre tract, of which claim, it is averred, Riggs had notice as early as the year 1929, when they had their lands surveyed. In 1930 Swaney, a lumberman entered into an arrangement with one G. M. Benson and the Summit Lumber Company, by which Benson agreed to purchase for Swaney a tract of 200 acres of standing timber, located within the boundaries of the 533.6 acres of Riggs land, the said timber to be conveyed to the Summit Lumber Company, and to be turned over by it to Swaney for operation, with some understanding that the lumber manufactured therefrom was to be marketed by said Lumber Company. On October 27, 1930, Riggs conveyed to G. M. Benson without warranty of title, 200 acres of standing timber located within the 533.6-acre tract, for a consideration of $2,000, which was paid. Two days later, on October 29, 1930, Benson conveyed said timber to the Summit Lumber Company, and later the Lumber Company sold the same to Swaney by a contract in writing not recorded. Some time passed and, in 1934, Swaney was operating the timber on the 200-acre tract, and on that part thereof claimed by Ryan. A suit in equity was instituted by Ryan against Swaney to enjoin the further cutting and removal of timber from the land claimed by Ryan, and seeking to recover damages, and, Swaney being a nonresident, an attachment was issued and levied on his property located in this State. The result of this litigation, ending by a perpetual injunction decree in February, 1936, was to establish the title of Ryan to the timber on the 100 acres of land claimed by him, amounting, as alleged, to approximately fifty per cent of the timber sold by Riggs to Benson, and to deprive Swaney thereof. During the progress of this litigation, the time limit on the right to remove the timber conveyed by Riggs was about to expire, such time limit being five years from October 27, 1930, and it is alleged in both the original and the amended and supplemental bills filed in the suit of Swaney against Riggs, that it was verbally agreed by Riggs that Swaney should have further time to remove the timber on that portion of the 200-acre tract not claimed by Ryan. Later Swaney was notified by Riggs, and by their grantees, not to remove the timber on the land to which this alleged extension of time related. After the entry of the final decree in the case of Ryan against Swaney, and Swaney had been notified not to remove the timber as aforesaid, he, Swaney, on July 22, 1936, instituted his suit in equity in the Circuit Court of Preston County against Riggs, G. M. Benson, and the Summit Lumber Company, a corporation, in which he averred that the defendants, Riggs, with knowledge of the claim of Ryan aforesaid, "fraudulently and with the intention of defrauding said Benson and said Charles N. Ryan sold and conveyed 200 acres of timber within the extended survey as made by him in 1929, and that he knew and had been advised that a part of the same was on the lands claimed by Ryan ***", thus averring a fraudulent act, and he sought a decree for $1,000 paid for timber to which Ryan had title, and damages to the amount of approximately $2,000 growing out of court costs, attorneys' fees, damages for delays, and loss of timber by reason of the expiration of the time for removal thereof. On the same day Swaney filed in his suit an affidavit for an attachment, and, on this affidavit, the attachment, the enforcement of the lien of which is herein sought to be prohibited, was issued, and, on July 24, 1936, levied on the Riggs tract of 533.6 acres. The attachment affidavit is lengthy and sets out the various matters hereinabove stated and, among other things, states the fact that the plaintiff had instituted his suit which he stated was a suit "for the recovery of damages for a wrong", and then sets up the items of damages, one being the price of one-half of the timber, or $1,000, and items of costs, attorneys' fees, and damages for delay in operation, aggregating $2,000, and stating that he was entitled to recover in said suit at least the sum of $3,000. The grounds for the attachment are stated to be: (1) The nonresidence of Riggs; (2) that Riggs fraudulently sold and conveyed to Benson the timber on land owned by Ryan; (3) that the Riggs were attempting to convert their property, or a material part thereof, in this State into money, with intent to defraud their creditors; and (4) that Riggs had disposed of certain interests in said lands owned by them, the exact interest not being known, with intent to de fraud their creditors, especially plaintiff. The material facts relied upon to show the existence of the grounds for attachment are stated to be: (1) That Riggs resided in the State of Pennsylvania; (2) that the several matters hereinabove set out with reference to the sale of the 200 acres of timber and the agreement to extend the time to remove the same; and (3) that Riggs were attempting to sell the real estate owned by them in this State.
The prayer of the original bill in the suit in which the attachment aforesaid was issued is as follows:
"Plaintiff therefore prays that the real estate so owned by said Mark A. Rigg and Sarah Rebecca Rigg shall be sold by order of the court, and after the payment of the costs of this suit, that then a sufficient amount of the proceeds of said sale be paid to this plaintiff for the damages herein set out; that the plaintiff be decreed a lien on said real estate for said damages, and that the court grant to this plaintiff such other relief, both general and special as to equity may seem meet, and as in duty bound he will ever pray".
An amended and supplemental bill filed in the suit contains the identical prayer. The suit is purely one to recover damages, and there is nothing in either the original or the amended and supplemental bills on which any other character of relief could be granted, under the prayer for general relief. Riggs appeared in the case and interposed demurrers to both the original and the amended and supplemental bills. On March 12, 1940, the demurrer to the original bill was sustained, with leave to amend, whereupon an amended and supplemental bill was filed, and the demurrer thereto was overruled on February 11, 1942. The amended and supplemental bill states the same case as that stated in the original bill, and prays for the identical relief. It may go into more detail as to the allegations of fraud, but is not otherwise substantially different from the original bill.
On August 27, 1936, after the issuance and levy of the attachment aforesaid, Riggs conveyed the tract of 533.6 acres of land, on which the attachment was levied to H. E. Thomas and R. E. Jackson, and, through various deeds and other proceedings, the title to said land has become vested in the petitioner, Lake O'Woods Club, a corporation. Of course, it holds title thereto subject to such rights, if any, as Swaney has acquired under the lien of his attachment. If the attachment was void by reason of lack of jurisdiction of the court to issue it, as contended by petitioner, then no lien was created on the tract of 533.6 acres by levying the same thereon, and the court never had, and does not now possess, jurisdiction to enforce such alleged lien by a sale of the land covered thereby, even though the parties proceeded against may have made a general appearance in court, and subjected themselves to its jurisdiction, to the extent that a personal decree against them might be entered. Even if the case were one cognizable in a court of equity, there could not ordinarily be a sale of the real estate involved in the alleged fraud merely on a personal decree against one or more of the participants in the fraud. The petitioner, while a purchaser...
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