Laurie v. Thomas, No. 15367

• Court: Supreme Court of West Virginia
• Writing for the Court: MILLER
• Citation: 294 S.E.2d 78,170 W.Va. 276
• Docket Number: No. 15367
• Decision Date: 28 May 1982
• Parties: John LAURIE, et al. v. Sue Rose THOMAS, et al.

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294 S.E.2d 78 170 W.Va. 276 John LAURIE, et al.
v.
Sue Rose THOMAS, et al. No. 15367. Supreme Court of Appeals of West Virginia. May 28, 1982.

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[170 W.Va. 277] Syllabus by the Court

1. Since rescission or cancellation of a deed is an equitable remedy, failure of consideration need not be the only basis on which relief may be granted. Other grounds, such as hardship, undue influence or fraud, may be available.

2. The fact that Rule 2 of our Rules of Civil Procedure states that "all procedural distinctions between actions, suits and other judicial proceedings at law or in equity and in the forms of action are abolished" does not mean the distinction between our various statutes of limitations and the equitable doctrine of laches are also abolished.

3. Where a suit based on fraud is not for damages but seeks to rescind a writing or impose a trust or other equitable relief, it is not a common law action for fraud but is equitable in nature. Consequently, the doctrine of laches is applicable rather than any specific statute of limitations period.

4. "The general rule in equity is that mere lapse of time, unaccompanied by circumstances which create a presumption that the right has been abandoned, does not constitute laches." Syllabus Point 4, Stuart v. Lake Washington Realty Corporation, 141 W.Va. 627, 92 S.E.2d 891 (1956).

5. "Where a party knows his rights or is cognizant of his interest in a particular subject-matter, but takes no steps to enforce the same until the condition of the other party has, in good faith, become so changed, that he cannot be restored to his former state if the right be then enforced, delay becomes inequitable, and operates as

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an estoppel against the assertion of the right. This disadvantage may come from death of parties, loss of evidence, change of title or condition of the subject-matter, intervention of equities, or other causes. When a court of equity sees negligence on one side and injury therefrom on the other, it is a ground for denial of relief." Syllabus Point 3, of Carter v. Price, 85 W.Va. 744, 102 S.E. 685 (1920); Syllabus Point 2, Mundy v. Arcuri, 165 W.Va. 128, 267 S.E.2d 454 (1980).

6. "Assignments of error that are not argued in the brief or appeal may be deemed by this court to be waived." Syllabus Point 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981).

Edgar F. Heiskell, III, Morgantown, for appellants.

Mike Magro, Jr., Morgantown, for appellees.

MILLER, Chief Justice:

We are asked to determine what the appropriate time period is for bringing a suit by certain heirs to set aside a deed which is alleged to have been fraudulently procured.

The basic facts are that on October 31, 1973, Saletta Maria Loria, a 90 year old widow, conveyed her real estate to her daughter, Sue Rose Thomas, granddaughter, Karen Sue Daniel, and granddaughter's[170 W.Va. 278] husband, Roy Daniel, who are the defendants. The remaining sons and daughters of Saletta Maria Loria filed suit on October 11, 1979 alleging in multiple counts that the property had been obtained by fraud, coercion, and undue influence. It was also claimed that there was a lack of adequate consideration. Finally, the plaintiffs averred that the defendants had orally agreed to sell the real estate and divide the proceeds equally but had failed to do so. Relief was sought by way of rescission of the deed and an accounting for rents and profits, and alternatively a request was made to enforce the oral contract of sale.

The defendants moved to dismiss the action claiming that the statute of limitations barred the suit as to fraud and the statute of frauds precluded the enforcement of the oral contract to sell. The trial court granted the motion to dismiss holding that the one year statute of limitations contained in W.Va.Code, 55-2-12, barred the action. The court also concluded the count seeking to enforce the oral contract to sell the property was barred by the statute of frauds based on W.Va.Code, 36-1-3.

The main thrust of the complaint was to have the deed rescinded based upon a claim of fraud, duress, coercion, undue influence and a lack of adequate consideration. This type of claim is traditionally equitable in nature. In Frasher v. Frasher, 162 W.Va. 338, 249 S.E.2d 513, 517 (1978) we stated:

"Since rescission or cancellation of a deed is an equitable remedy, failure of consideration need not be the only basis on which relief may be granted. Other grounds, such as hardship, undue influence or fraud, may be available, as noted in 26 C.J.S. Deeds § 21b."

See also Boyd v. Pancake Realty Co., 131 W.Va. 150, 46 S.E.2d 633 (1948); LaFollette v. Craft, 122 W.Va. 727, 14 S.E.2d 917 (1941); Barbee v. Amory, 106 W.Va. 507, 146 S.E. 59 (1928); 16 Michie's Jurisprudence Rescission, Cancellation and Reformation § 3 (1979).

The fact that Rule 2 of our Rules of Civil Procedure states that "all procedural distinctions between actions, suits and other judicial proceedings at law or in equity and in the forms of action are abolished" does not mean the distinction between our various statutes of limitations and the equitable doctrine of laches are also abolished. We have not had an occasion to make this specific point before but certainly our cases dealing with our various statutes of limitations and the equitable doctrine of laches plainly suggest this conclusion. E.g. Snodgrass v. Sisson's Mobile Home Sales, Inc., 161 W.Va. 588, 244 S.E.2d 321 (1978); Carlone v. United Mine Workers of America Welfare and Retirement Fund, 161 W.Va. 351, 242 S.E.2d 454 (1978). This point is expressly made in Lugar & Silverstein, West Virginia Rules 32 (1960):

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"The Rules do not affect statutes of limitations, so the court must determine the form of action which would have been brought under the former procedure. If the complaint discloses a cause of action enforceable heretofore in unlawful entry and detainer, the three years' statute of limitation applies." (Footnote omitted)

Rule 2 of the Federal Rules of Civil Procedure is somewhat similar to our Rule 2. ¹ As explained in 4 Wright & Miller,...