Lloyd et al. v. .Kyle et al.

• Decision Date: 26 September 1885
• Citation: 26 W.Va. 534
• Parties: Lloyd et al. v. .Kyle et al.
• Court: West Virginia Supreme Court

26 W.Va. 534

Lloyd et al.

v.Kyle et al.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1885.

Decided September 26, 1885.

1. Under the provisions of our statute, sec. 3, ch. 44 of Acts 1877, and sec. 3, ch. 157 of Acts 1882, no petition can be entertained by this Court for an appeal from any decree of any character, which was rendered more than five years before the petition is presented for the appeal. (p. 539.)

2. Where an appeal is properly obtained from an appealable decree

either final or interlocutory, such appeal will bring with it for review all preceding non-appealable decrees or orders, from which have arisen any of the errors complained of in the decree appealed from, no matter how long they may have been rendered before the appeal was taken. (p. 440.)

3. A party can not be granted an appeal upon a petition assigning errors in appealable decrees rendered more than five years before his petition is presented, although the errors thus assigned may be the foundation of and be given effect in a subsequent decree rendered within five years, from which an appeal is also prayed. The petition must show that the party is entitled to an appeal from such subsequent decree alone, or the appeal can not be properly allowed, and if inadvertently allowed, it will be dismissed (p.540.)

The facts of the case are stated in the opinion of the Court: W. W. Arnett for appellant.

Ewing, Melvin & Riley for appellee. Snyder, Judge:

Stacy Lloyd, being the owner of two tracts of land, containing respectively 7, 000 and 2, 689 acres lying in Wetzel county, sold and by deed, dated May 8, 1847, conveyed with special warranty of title to Robert Kyle 2, 000 acres to be selected by Kyle in three separate parcels from the two tracts aloresaid. In 1853 Kyle had a survey made which purported to contain 2, 000 acres, but the metes and bounds of which actually embrace 4, 000 acres. Lloyd having died, Kyle in 1855, brought suit in the circuit court of Wetzel county against the heirs of Lloyd to have the land partitioned and his said survey established and confirmed as the land to which he was entitled under the aforesaid deed from Lloyd. By a decree entered in said suit in 1856, the said survey was established and confirmed and a commissioner appointed to convey the land to Kyle according to the metes and bounds of said survey. Pursuant to said decree the commissioner by deed, dated April 20, 1857, conveyed the land in severalty to Kyle. Between the date of this deed and the year 1868, Kyle conveyed 3, 469 acres of said survey, 1, 557 acres to innocent vendees for value and 1, 912 acres to his children without value.

In July 1870, the heirs of Lloyd instituted this suit in the circuit court of Wetzel county against Kyle and his grantees. They alleged in their bill that the land surveyed by Kyle and conveyed to him as 2, 000 acres was in fact 4, 000 acres; that the survey was fraudulent and the decree establishing and confirming the same was procured by misrepresentation and fraud; that all the grantees of Kyle had notice of such fraud; and praying that the said survey as well as the conveyance ot the land to Kyle and the conveyances by him to his grantees might be set aside, and a correct assignment made to him of the 2, 000 acres sold to him by their ancestor, &c.

Several answers were filed to the bill, many depositions taken by both sides, and the cause coming on to be heard on the pleadings and proofs, the court on April 8, 1876, entered a decree in which, after stating formally its findings on the matters in controversy, it adjudged, ordered and decreed that the survey made by the said Robert Kyle, the decree entered in 1856 in the suit of Kyle confirming the same, and the deed made by the commissioner to Kyle pursuant to said decree be annulled and set aside "as obtained by the fraudulent procurement of the said Robert Kyle, except as to the 1, 557 acres found to have been sold and conveyed to innocent purchaser by said Kyle, and also 443 acres of the land conveyed by said Kyle to Henry Kyle, making in the aggregate 2, 000 acres to which the said Robert Kyle was entitled under his original conveyance from Stacy Lloyd." The decree then appoints three commissioners, Francis Doran, S.J. Robinson and John McCaskey and directs them to go upon the land in the bill mentioned and set apart 2, 000 acres thereof according to the provisions of the deed of May 8, 1847, from Stacy Lloyd to Robert Kyle and to so set apart the same as to include the 1, 557 acres conveyed to innocent purchasers by Kyle and 443 acres of the land conveyed to Henry Kyle and to give to the latter as much of his improved land as practicable, and directing the commissioners to return a plat or survey of said 2, 000 acres as laid off by them and report their proceedings to the court.

At the April term 1877, the court made an order substituting A. P. Brookover in the place of Francis Doran as one of the commissioners and directing him and the two other commissioners, Robinson and McCaskey, to make the partition of the land as required by the former decree of April 8, 1876.

Upon the petition of Henry Kyle, one of the defendants in the cause, an appeal was allowed, March 19, 1881, by this Court from the aforesaid decree of April 8, 1876; and this Court, on November 5, 1881, dismissed said appeal on the motion of the appelees, for failure of the appellant to have the record printed or to deposit with the clerk money to pay for printing the same as required by law.

Subsequently, the circuit court entered an order, February 1, 1882, substituting Augustus Wyatt for John McCaskey, who had become physically unable to act, as a commissioner, and directing him and the two other commissioners formerly appointed to make partition of the land as required by the said decree of April 8, 1876.

The commissioners made their report setting apart 2, 000 acres of land as the amount conveyed by Lloyd to Kyle in the manner required by the decree of April 8, 1876. This report was not excepted to by any one. The court by a decree made January 30, 1883, confirmed said report and awarded a writ of possession to place the plaintiffs in possession of all the land embraced in the survey made by Robert Kyle not included in the 2, 000 acres assigned to the grantees ot Kyle by the report of the commissioners aforesaid. None of the decrees mention or direct the payment of the costs of the suit.

In January, 1884, the said Henry Kyle filed an "amended and additional petition," stating therein, he "is advised that inasmuch as the said decree heretofore appealed from was an interlocutory decree and no final decree was entered until January 30, 1883, he may still have an appeal from them notwithstanding the lapse of five years since the rendition of the former;" that "relying upon the grounds of error assigned in his former petition, and adding the still further specification of error that the decree of January 30, 1383, is within the law a repetition of the errors of the decree of April 8, 1876, he now again prays an appeal from the said decrees of April 8, 1876, and of January 30, 1883."

Upon this petition, this Court, on January 28, 1884, allowed the present appeal.

The appellees, as a preliminary question, submit that the appeal was improvidently allowed and should therefore, be dismissed by this Court. This presents an important question and one which has never been directly passed upon by this Court. Its...