Mccoy v. Mccoy

• Decision Date: 25 June 1887
• Citation: 29 W.Va. 794,2 S.E. 809
• Court: West Virginia Supreme Court
• Parties: McCoy v. McCoy, Adm'r, etc.

2 S.E. 809

(29 W.Va. 794)

McCoy

v.McCoy, Adm'r, etc.

Supreme Court of Appeals of West Virginia.

June 25, 1887.

1. Res Adjudicata—Rules as to.

A point once adjudicated by a court of competent jurisdiction, however erroneous the adjudication, may be relied on as an estoppel in any subsequent collateral suit in the same or any other court at law or in equity, when either party or his privies allege anything inconsistent with it; and that, too, whether the subsequent suit is upon the same or a different cause of action; nor is it necessary that precisely the same parties should have been plaintiffs or defendants in the former suit, provided that the same subject-matter in controversy between two or more of the parties to the two suits, respectively, has been in a former suit directly in issue and decided. The conclusiveness of the judgment or decree extends, beyond what may appear on its face, to e, very allegation which has been made on the one side, and denied on the other, and was in issue and determined, in the course of proceedings. If it appears by the record that the point in controversy was necessarily decided in the first suit, whether upon the law on demurrer, or upon the facts in issue, it cannot be again considered in any subsequent suit between any of the parties or their privies. But the law of res adjudicata is subject to this qualification: no party can be estopped by any judgment or decree if the record of the first suit shows that he had no opportunity to be heard in opposition to such judgment or decree.

2. Injunction—Against Enforcing Judgment—Dissolution—Delay of Parties.

If an injunction be obtained to stay proceedings on a judgment or decree, and the plaintiff neglects for an unreasonable length of time to summon other defendants, or to have an order of publication, or to amend his bill, when he knows there are other necessary defendants in the cause, or otherwise unnecessarily fails to expedite the suit, the court will, on motion of the defendant, even before the answer is filed, dissolve the injunction because of such unreasonable delay caused by the plaintiff's negligence in preparing his case. But if the defendant, whose judgment is enjoined, acquiesce in it for years by making no motion to dissolve such injunction, if he then move to dissolve it, even after the filing of his answer years after the filing of the bill, the court, because of his long delay, ought to refuse to dissolve the injunction on his motion, but ought to continue it till the hearing, unless the evidence to sustain the dissolution is such as to satisfy the court that the case cannot be changed by any proof which the plaintiff can produce; such, for instance, as a judgment or decree estopping the plaintiff from proving the material allegation in his bill. But in such case the court should require the plaintiff to expedite his cause, and as promptly as possible have it matured at rules and set for hearing, under the penalty, in case of failure, of a dissolution of his injunction on motion, before the cause is ready for hearing, because of such unreasonable delay.

(Syllabus by the Court.)

Appeal and supersedeas from circuit court, Harrison county.

Benjamin McCoy on September 6, 1873, filed his bill in the circuit court of Barbour county against Addison McCoy andMcCoy, children and heirs of Lucinda Rexroad, and also said Addison McCoy as administrator of said Lucinda Rexroad. The bill alleges that at the April term, 1872, Addison McCoy, as administrator of Lucinda Rexroad, recovered against the plaintiff, Benjamin McCoy, the sum of $1,302.90, with interest from April 11, 1872, until paid, and $11.37 costs, and a copy of this judgment is filed as an exhibit. On this judgment a writ of fieri facias issued, filed as an exhibit with the bill, which was levied on 7 mules, 2 horses, and 62 head of cattle, on August 2, 1873, and so returned; and it was also returned by the sheriff that on July 8, 1873, he received from the defendant, Benjamin McCoy, on this execution, $256.50, of which he applied $12.82 1/2 to the payment of his (the sheriff's) commission on said execution, and the residue, $243.67 1/2, he applied as directed by the plaintiff in writing, specifying rather indefinitely the mode of its application. A venditioni exponas was then issued, requiring the sheriff to sell said property so levied upon, and on this venditioni exponas there was a memorandum made by the clerk that it was subject to this credit of $243.67 1/2 as of July 8, 1873. This venditioni exponas is filed as an exhibit with the bill. The bill states that this judgment was recovered on two obligations executed by the plaintiff to Lucinda Rexroad on June 8, 1867, — one for $400, payable December 1, 1867, and the other for $890, payable June 1, 1868, and that those bonds were given in pursuance of the terms of a contract under seal made by Lucinda Rexroad in her life-time, on June 8, 1867, whereby she sold to the plaintiff, Benjamin McCoy, all her right, title, and interest in and to the real and personal estate of Gen. William McCoy, of Pendleton county, West Virginia, which she thereby warranted was at least one-tenth of the whole of his estate, and which she bound herself to convey to the plaintiff, Benjamin McCoy, by deed with covenant of general warranty on the first of December, 1867. And he agreed to pay her for said one-tenth of Gen. William McCoy's estate $1,500, of which he paid her $210 in cash, and gave his aforesaid bonds for the residue; but it was expressly stipulated in said contract that neither of said two bonds (on which this judgment was afterwards obtained) was to be paid to her or bear interest, until the deed conveying the one-tenth interest in Gen. William McCoy's estate was made. A copy of this agreement was made an exhibit with the bill, but in point of fact never filed. The bill then states that Lucinda Rexroad, without making this deed, died in 1871, leaving two sons, one of whom lived in Indiana, and the other, Addison McCoy, in West Virginia. Addison McCoy qualified as the administrator of his mother, Lucinda Rexroad. On February 10, 1872, Addison McCoy and wife executed to the plaintiff, Benjamin McCoy, a deed which recited this contract under seal of Lucinda Rexroad and Benjamin McCoy dated June 8, 1867, setting it out just as above stated. It then sets out that Lucinda Rexroad had died, leaving Addison McCoy her only child and sole heir. And then, to carry out this contract of his mother, Lucinda Rexroad, Addison McCoy, stated to be her sole heir, and his wife, did grant to Benjamin McCoy, (the plaintiff,) with general warranty, the aforesaid interest in the estate of Gen. William McCoy, consisting of at least one undivided tenth part of his estate, real and personal, including their interest in the estate, real and personal, of the father of Gen. William McCoy. A copy of this deed is filed with the bill as an exhibit.

The bill states that, shortly after this deed was made to the plaintiff, he first heard that Addison McCoy, the grantor in this deed, had a brother living in Indiana who was a joint heir with him in the estate of Lucinda Rexroad, their mother, and therefore this deed only conveyed really one-half of Lucinda Rexroad's interest in the estate of Gen. William McCoy, and under the plaintiff's said agreement with her of date June 8, 1867, he was not bound to pay either of the bonds he gave her of that date for her entire interest insaid estate of William McCoy, guarantied to be at least one tenth of his whole estate, till she made a deed to the plaintiff for the whole of her said interest; and the judgment aforesaid was based on these bonds. And until he, the plaintiff, receives a deed with general warranty which will convey one-tenth part of Gen. William McCoy's estate, he cannot be required to pay these obligations, or this judgment based on them; and, if it should now or hereafter be done, these bonds, amounting to $1,290 of principal, on which this judgment is founded, nor the judgment itself, can, under the terms of his said contract, bear any interest; and he asks the abatement of this entire interest included in the said judgment. He then asserts that the interest of Lucinda Rexroad in the estate of Gen. William McCoy was, instead of one-tenth, as claimed and sold to the plaintiff, only probably about one-fiftieth of this estate, so that the plaintiff had, in paying to Lucinda Rexroad the $210 cash, more than paid for all the real interest she had in the estate of Gen. William McCoy. And to show this he states that Gen. William McCoy died in 1835, leaving a will which, though not filed with the bill, is filed with an answer to the bill as an exhibit. After giving specific legacies amounting to $3,300, and the goods in a certain store, to William McCoy, who had married a deceased daughter of the testator, and had by her a son, William McCoy, the 3d, lastly, he gave to his only descendant, his grandson, William McCoy, 3d, all the remainder of his property, real and personal; and this will then provides: "But in case William McCoy, the 3d, should die without lawful issue, then in that case all his property is to be sold at public sale, and the proceeds thereof shall be divided among my brothers and sisters then living, and the heirs of those who are dead, as the law of Virginia directs; said estate to be managed by my executor, Wm. McCoy, for Win. McCoy, 3d, until he is 21 years of age." This William McCoy, who married the only child of Gen. William McCoy, she having died in her father's life-time, leaving an only child, William McCoy, the 3d, was a nephew of Gen. William McCoy, his father having died in Gen. William McCoy's life-time. The will of Gen. William McCoy is not filed with the bill, but its contents are stated, not very accurately, but there is quoted from it this clause: "And that in case Wm. McCoy, 3d, should die without lawful issue, then in that case all his property is to be sold, and the...