Moats v. Poling
| Decision Date | 14 January 1930 |
| Docket Number | CC 425. |
| Citation | 151 S.E. 324,108 W.Va. 417 |
| Parties | MOATS et al. v. POLING et al. |
| Court | West Virginia Supreme Court |
Submitted January 8, 1930.
Syllabus by the Court.
Any person having an interest in the subject-matter of a litigation is a proper party thereto. Holden v Boggess, 20 W.Va. 62, is overruled in so far as it is inconsistent herewith.
Where a devise of real estate is conditioned upon the performance of an obligation, that obligation becomes a charge upon the real estate without an express declaration thereof.
Subrogation may arise where a third person discharges an obligation under agreement, express or implied with the obligee, to be substituted to his rights against the obligor.
Case Certified from Circuit Court, Barbour County.
Action by George Moats and others against Monterville Poling and others. Ruling sustaining demurrer to bill was certified to Supreme Court of Appeals. Reversed.
W Bruce Talbott and Wm. T. George, both of Philippi, for plaintiffs.
J Blackburn Ware, Paul B. Ware, and D. D. Stemple, all of Philippi, for defendants.
A demurrer to the bill in this cause was sustained by the circuit court, which on its own motion certified the questions arising thereon to this court for decision.
The bill sets up the will of Asa Poling, which contains the following provisions: The bill alleges that the Supreme Court has interpreted the will as meaning that the maintenance need not be on the home farm itself, and that the maintenance is a lien upon the real estate (reference is had to the case of Poling v. Bennett, 103 W.Va. 456, 137 S.E. 883); that some time after the death of the testator, Mrs. Bennett elected to live with the plaintiffs, who at her request maintained her in reliance on the provisions of the will and in expectation that they would be repaid; that Mrs. Bennett had caused defendant Mont Poling to be served with a written notice stating that she had elected to reside with plaintiffs and had an arrangement with them to maintain her for $60 a month, exclusive of wearing apparel, and requesting him to pay the amount then due under that contract; that this amount was not paid; that plaintiffs continued to maintain Mrs. Bennett and during the last 2 1/2 months of her life additional expenses arose because of her illness, and it was necessary for them to charge $100 a month; that after her death plaintiff George Moats had a notice served on defendant Poling setting up expenses for her maintenance amounting to $922, and demanding payment; that no payment has been made by defendant on this account; and that the personal estate of Mrs. Bennett amounts to only about $100. The bill prays that plaintiffs be subrogated to her lien on the real estate for her maintenance; that the amount of the lien be adjudicated; and that the real estate be sold to satisfy the lien.
The demurrer advances the following propositions: Both the plaintiffs and defendants are improperly joined as such; in the former suit the Supreme Court fixed the duty upon defendant Poling of maintaining Mrs. Bennett at the home farm only; the intention of the testator as shown by the will was that she should be maintained upon the home farm; the will does not make the support of Mrs. Bennett a lien upon the real estate devised to Poling; he was to furnish the maintenance, and it was her duty to receive it from him (if he were willing to furnish it), and, if she should receive it elsewhere without his consent, he would not be bound; plaintiffs have no right of subrogation; no privity of contract exists between plaintiffs and defendants; the bill does not charge that defendant Poling defaulted in performance of his duty; and there is an adequate remedy at law.
Under the allegations of the bill both of the plaintiffs furnished the maintenance to Mrs. Bennett. They are therefore properly joined. The ultimate object of this suit is not a personal judgment against Poling or his wife, but the sale of the real estate devised to him. Under Code, c. 65, § 3, she has no right to be endowed in the land. But the same section makes the following provision for a wife: "If a surplus of the proceeds of sale remain after satisfying the said lien of incumbrance, or purchase money, she shall be entitled to dower in said surplus, and a court of equity having jurisdiction of the case may make such order as may seem to it proper to secure her right." It is therefore to Mrs. Poling's interest in case the real estate is sold to see that it brings a surplus (if possible), and we are of opinion that she is a proper party to this suit. It would indeed be an anomaly in procedure for the court to enter an order affecting a person's right, as the statute provides, when that person is not before the court. Holden v. Boggess, 20 W.Va. 62, is overruled in so far as it is inconsistent herewith.
In the case of Poling v. Bennett, supra, an oral contract by which Mrs. Bennett agreed to give Poling her life estate under the will in consideration of his moving on the home farm managing it, and supporting her there, was under consideration. The finding of this court in that case as to Poling's duty to maintain her on the home farm related only to his obligation under the contract, and had no reference to his...
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