McMullen v. Eagan et al.

• Decision Date: 16 December 1882
• Citation: 21 W.Va. 233
• Parties: McMullen v. Eagan et al.
• Court: West Virginia Supreme Court

21 W.Va. 233

McMullen

v.Eagan et al.

Supreme Court of Appeals of West Virginia.

Submitted June 18, 1881

Decided December 16, 1882.

(^*Snyder, Judge, Absent.)

1. If the certificate of the acknowledgment of a deed by a married woman living with her husband shows, that she and her husband jointly acknowledged the deed before a proper officer, such deed is inoperative to convey her interest, though the certificate shows, that she was after such acknowledgment examined privily and apart from her husband by the officer and had the deed fully explained to her and declared, that she had willingly executed the same and did not wish to retract it. (p. 244.)

2. If such deed be recorded, and afterwards the officer re-writes his certificate and signs the same dating it as of the time of the first acknowledgment, and such second certificate states, that she appeared before the officer, and being examined by him privily and apart from her husband and having the deed fully ex- plained to her she acknowledged the same to be her act and declared, that she had willingly executed the same and did not wish to retract it, though such second certificate is in due form, yet the deed will still be inoperative to convey her interest in the land, as the officer has no authority to correct his first certificate, though it was not written in such way as showed the real facts. (p. 245.)

3. But if she and her husband afterwards go before the clerk of the county court in his office and acknowledge this deed in the manner prescribed by the statute, such acknowledgment if endorsed on the deed and duly recorded by the clerk, which it is his duty to do, this will cure such defect in the fust acknowledgment and render the deed operative to convey her interest in the land. (p. 246.)

4. A married woman living with her husband can convey under our statute-law her separate real estate by joining with her husband and by having the deed acknowledged after privy examination of her in precisely the same manner, as she always could convey her real estate, which was not her separate property; and she can convey such real estate in no other manner, (p. 246.)

5. An answer in this State may state such facts, as would be the basis of a cross-bill, and pray affirmative relief; and it then has the same effect, as a cross-bill formerly had. But this can only be done, when a cross-bill could have been properly tiled; it can not ask such affirmative relief by introducing into it other matters distinct from those, which were stated in the original bill, and on which it was based, but it must be confined to matters involved in the original bill. (p. 247.)

6. If therefore an injunction to a sale of lands by a trustee be asked in a bill, on the ground that the deed of trust was wholly inoperative to convey the grantor's land because of fatal defects in the deed of trust, the answer can not pray affirmative relief so as to operate as a cross-bill, when the prayer for relief is based on the fact, that the deed of trust was given to secure the purchase-money of the land, and the deed to the grantor if the deed of trust reserved a vendor's lien, which the answer prays may be enforced. In such case there would be brought into the answer as the basis of the prayer for affirmative relief matters distinct from those stated in the bill, which can not be done, (p. 248.)

7. But if the bill of injunction goes further, and sets out a deed, in which the vendor's lien is reserved, and alleges, that it is fatally defective in not effectually conveying the contingent right of dower of a wife, who signed it, and alleges that more is for this and other reasons claimed to be due under the deed of trust than is really due, and such bill asks general relief, such affirmative relief by the enforcement of the vendor's lien may be asked in the answer; for such relief is confined to matters involved in the original bill. (p. 248.)

S. A party not named in the bill, but whose interest in the subjectmatter of the bill only appears in the answer of a defendant, can not file an answer to the bill as a defendant, if his doing so without the bill being first formally amended is objected to by the plaintiff; and If the court permits such answer to he filed and afterwards renders a decree against the plaintiff in favor of such party thus informally introduced into the case, the Appellate Court on the appeal of the plaintiff will reverse such decree. But when the record shows affirmatively, that the plaintiff was present in court, when the party was thus informally introduced into the cause and did not object but filed a replication to such answer, and the cause with reference to such new party was fully and fairly heard on its merits without objection in the court below, this will be regarded as a waiver by the plaintiff of such defect in the proceedings in the court below, and the Appellate Court would not reverse the decree for such defect in the proceedings, (p.-50.)

9. The circuit court ought not to set aside a sale by a commissioner for inadequacy of price, when there had been two sales of the property previously, and the last sale was not made until after repeated adjournments by the commissioner of sale with a view to the getting of the highest possible price, merely because there was a slight apparent preponderance in the weight of the affidavits filed indicating, that the price obtained was not the full value of the property. When there is a conflict of views as to the value of property, previous sales and attempted sales are entitled to more weight than the mere opinions of some persons as to its value. (p. 252)

10. If the name of the purchaser at such a sale be by mistake not named in a decree confirming such sale, but by mistake the name of some other person is inserted in the decree as the purchaser, such mistake is no ground for reversing the decree in the Appellate Court, if no motion to correct it has been made in the court below. p. 253,)

Appeal from and supersedeas to two decrees of the circuit court of the county of Kanawha rendered respectively on the 30th day of June, 1876, and on the 20th day of December, 1878, in a cause in said court then pending, wherein Catharine McMullen was plaintiff, and David Kagan and others were defendants, allowed upon the petition of said McMullen.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decrees appealed from, Green, Judge, furnishes the following statement of the case:

On October 29, 1872, David Eagan and Mary F., his wife, conveyed to Catharine McMullen, the wife ot James H. McMullen, a house and lot in Charleston, West Virginia, The consideration recited in the deed was three thousand four hundred dollars, of which one thousand eight hundred dollars is stated to be paid in cash and the balance was to be paid as follows: Two hundred dollars in sixty days and the residue, two thousand four hundred dollars, in six equal annual payments of four hundred dollars each, all bearing ten per cent, interest from the date, and evidenced by the notes of Catharine McMullen to David Eagan of same date. A lien was expressly reserved to secure these deterred payments. The conveyance was with general warranty of title. The acknowledgment was as follows: "State of West Virginia,

"County of Kanawha, ss.:

"On this 30th day of October, 1872, before me, Henry C. MeWhorter, a notary public in and for said county, came David Eagan and Mary V. Eagan, his wife, whose names are signed to the foregoing writing, hearing date on the 29th day of October, 1872, and acknowledged the same to be their act and deed; and the said Mary F. Eagan, being by me examined privily and apart from her said husband, and having the writing aforesaid fully explained to her, she, the said Mary F. Eagan, declared that she had willingly executed the same and does not wish to retract it.

"Given under my hand the 30th day of October, 1872.

"H. C. McWhorter,

"Notary Public: '

On the day on which this deed bore date, but before it was acknowledged for recordation, a deed of trust was executed by Catharine McMullen, in which her husband united, conveying the same house and lot to F. B. Swann, trustee, to secure the payment of these seven notes, the principal of which amounted to two thousand six hundred dollars. This deed of trust had no special provisions in it in reference to the sale under it. The following was the acknowledgment ment of it tor recordation, made the same day it was executed:

"Kanawha County, Recorder's Office, "29th October, 1872. "This deed was this day presented to me and duly acknowledged by dames H. McMullen and Catharine McMullen, his wite, parties thereto; and the said Catharine, wife of the said flames II. McMullen, being examined by me privily and apart from her husband, and having the deed aforesaid fully explained to her, declared she had willingly signed and executed the same, and that she wished not to retract it, and thereupon the same is admitted to record.

"Teste:

"A. Cunningham, Bec'r

"Teste:

"Joel S. Quarrier, "Clerk Kanawha County Court" The trustee advertised this house and lot for sale under the provisions of this deed oi trust, the sale to take place at the front door of the court-house in Charleston on March 13, 1875, and the terms of sale to be so much cash, as will pay eight hundred dollars, with ten per cent, interest thereon from October 29, 1872, and the residue in four equal payments payable respectively on October 29, 1875, October 29, 1876, October 29, 1877 and October 29, 1878; and the advertisement stated, that the first of these notes of two hundred dollars was paid, and the others were then due.

On March 6, 1875, an injunction was awarded prohibiting T. B. Swan and David Eagan from selling or offering to sell this house and lot until the further order of the court or ot a judge in vacation. The order granting this injunction was addressed to the clerk of Kanawha circuit court and was signed by Evermont Ward who...