Mullins v. Green

Decision Date12 July 1960
Docket NumberNo. 12000,12000
Citation145 W.Va. 469,115 S.E.2d 320
CourtWest Virginia Supreme Court
PartiesEstol MULLINS v. Charlie C. GREEN et al.

Syllabus by the Court

1. The general rule is that when a question has been definitely determined by this Court its decision is conclusive on parties, privies and courts, including this Court, upon a second appeal or writ of error and it is regarded as the law of the case.

2. In a suit in equity, relief can only be obtained under a prayer for general relief where there are supporting allegations and the relief sought is not inconsistent with the prayer for special relief.

3. A prayer for general relief will not support a decree unless the facts alleged and the nature of the case warrant it.

4. 'Where there is no pleading to warrant a decree, or part of a decree, the decree, or such part of it, is not merely voidable, but void, as it is not on a matter in issue.' Point 2, syllabus, Waldron v. Harvey, 54 W.Va. 608 .

D. Grove Moler, Ray Toler, Mullens, for appellants.

Paul D. Blackshear, Pineville, Kingdon & Kingdon, Arthur Ritz Kingdon, Mullens, for appellee.

HAYMOND, Judge.

In this suit in equity instituted in the Circuit Court of Wyoming County in August 1956, the plaintiff, Estol Mullins, under the allegations set forth in his bill of complaint and amended bill of complaint, originally sought to obtain from the defendants, Charlie C. Green, Charlie C. Green, Executor of the Will of John W. Green, deceased, Minnie Green, Luther Green, Galvin Green, John W. Green, II, Faye Green Bennett, Mason Green, and Mattie Green Stewart, widow and heirs at law of Marton Green, deceased, Hope Natural Gas Company and Pocahontas Land Company, specific performance of a verbal agreement alleged to have been made in 1946 between the plaintiff and his grandfather, John W. Green, in his lifetime, by the terms of which John W. Green promised to devise to the plaintiff, in fee simple, an undivided interest in a tract of land containing approximately 225 acres in Wyoming County, owned by John W. Green at the time of his death in August 1952. Instead of complying with the alleged agreement, John W. Green, by his will probated in September 1952, devised the entire tract of 225 acres to his two sons Charlie C. Green and Marton Green.

By decree entered November 27, 1957, the circuit court awarded the plaintiff specific performance of the alleged verbal agreement to the extent of a one-twelfth interest in the 225 acre tract of land. Upon appeal to this Court the decree of November 27, 1957, was reversed and the case was remanded to the circuit court for further proceedings according to the principles stated and directions given in the written opinion and according to the rules and principles governing courts of equity. Mullins v. Green, W.Va., 105 S.E.2d 542. As the material facts are set forth in the opinion of this Court in that case, it is unnecessary to restate them on this appeal.

In reversing the decree of November 27, 1957, upon the first appeal of this case to this Court, this Court expressly found that the contract alleged in the amended bill of complaint of the plaintiff had not been established by full, clear and convincing evidence which is required by the decisions of this Court to establish a parol contract to devise real estate. Lantz v. Reed, 141 W.Va. 204, 89 S.E.2d 612; Gray v. Marino, 138 W.Va. 585, 76 S.E.2d 585; Davidson v. Davidson, 72 W.Va. 747, 79 S.E. 998. In the opinion upon the first appeal of this case this Court used this language: 'It is the finding of this Court, upon the evidence in this record, that the contract alleged in the amended bill of the plaintiff has not been proved by the full, clear and convincing evidence which is required in such a case. The construction of the buildings by the plaintiff, and the other acts of the parties, may be explained in too many ways inconsistent with the terms of the alleged agreement. In Gray v. Marino, supra, we quoted with approval the following statement from Miller v. Miller's Ex'r, 2 Va.Dec. 97, 21 S.E. 471, 473, an early Virginia case, which is here reiterated: 'It is a serious matter, when a man dies, for a claimant to come forward, and demand the estate, upon the ground that the deceased had in his lifetime verbally promised or agreed to make a will giving his estate to said claimant, and that, too, in the face of a will which has given it to some one else. Such a claim naturally excites surprise, and a court of equity will always require the clearest and most convincing proof to sustain such a claim.''

Upon the remand of the case the circuit court, over the objection of the defendants, upon the amended bill of complaint which in connection with the claim of the plaintiff for specific performance contained a prayer for general relief, permitted the plaintiff, in the absence of any pleading other than his amended bill of complaint, to assert and support by evidence heard by the court, the claim of the plaintiff, by way of alternative relief under the prayer for general relief, for the value of the permanent improvements erected by the plaintiff in 1947 upon the tract of land and to assert an account between the parties to this suit.

By its final decree entered August 8, 1959, the circuit court found that the alleged oral agreement by John W. Green in 1946 to devise to the plaintiff an undivided fee simple interest in the tract of land in controversy, though not specifically enforceable in this suit for lack of clear and convincing proof, had been established by a preponderance of the evidence, and that the plaintiff, having good and reasonable cause to believe that he was entitled to an undivided fee simple interest in the tract of land, had made valuable permanent improvements upon it in 1947; that the sum of $5,000.00 is allowable to the plaintiff as the present fair market value of the store and apartment building without any allowance for repairs and additions made by the plaintiff since the death of John W. Green; and, after allowing some small items in favor of the defendants as sets-off against the plaintiff, the circuit court further found that there was a net balance of account due from the defendants to the plaintiff in the sum of $4,478.51 and rendered judgment in favor of the plaintiff in that amount, made such judgment a lien upon the tract of land, and ordered its sale at public auction by special commissioners appointed for the purpose upon failure of the defendants to pay such judgment within thirty days from the date of the entry of the final decree.

From the foregoing decree this Court granted this appeal upon the application of the defendants other than Pocahontas Land Company, a corporation, which had been dismissed from this suit, and the defendant Hope Natural Gas Company.

The defendants seek reversal of the decree of August 8, 1959, on numerous grounds, but the principal errors assigned, which if well founded are controlling and decisive of this case on this appeal, are, in substance, that the circuit court failed to comply with the judgment of this Court, upon the first appeal, and was without jurisdiction, upon the allegations of the amended bill of complaint and under its prayer for general relief, to consider and determine the claim of the plaintiff for permanent improvements and to state an account between the plaintiff and the defendants with respect to the tract of land in controversy.

It was reversible error for the circuit court, upon the remand of this case, to find and determine, contrary to the holding of this Court upon the first appeal, that the alleged oral agreement by John W. Green to devise to the plaintiff an undivided interest in fee simple in the tract of land in controversy, though not specifically enforceable, had been established by a preponderance of the evidence. Though denying specific performance, this Court definitely held and determined, on the first appeal, as clearly set forth in the quoted portion of its opinion, that, because the evidence was not full, clear and convincing, such contract had not been proved and for that reason did not exist between the plaintiff and John W. Green. That holding of this Court is conclusive upon the plaintiff and the circuit court and is controlling upon that question. The general rule, recognized in many decisions of this Court, is that when a question has been definitely determined by this Court its decision is conclusive on parties, privies and courts, including this Court, upon a second appeal or writ of error and it is regarded as the law of the case. State v. Pietranton, 140 W.Va. 444, 84 S.E.2d 774; State ex rel. Adkins v. Sims, 130 W.Va. 645, 46 S.E.2d 81; Show v. Mount Vernon Farm Dairy Products, 128 W.Va. 598, 37 S.E.2d 459; Colerider v. Central National Bank of Buckhannon 128 W.Va. 520, 37 S.E.2d 466; McIntosh v. Vail, 128 W.Va. 74, 35 S.E.2d 719; Meadow River Lumber Company v. Smith, 126 W.Va. 847, 30 S.E.2d 392; Tressler Coal Mining Company v. Klefeld, 125 W.Va. 301, 24 S.E.2d 98; Rash v. Norfolk and Western Railway Company, 122 W.Va. 688, 12 S.E.2d 501; William C. Atwater and Company v. Fall River Pocahontas Collieries Company, 119 W.Va. 549, 195 S.E. 99; Atlantic Bitulithic Company v. Town of Edgewood, 114 W.Va. 243, 171 S.E. 754; Kaufman v. Catzen, 108 W.Va. 1, 150 S.E. 371; Moore v. Hutchinson, 107 W.Va. 275, 148 S.E. 78; Roberts v. Lykins, 106 W.Va. 280, 145 S.E. 440; White v. Lazelle, 99 W.Va. 109, 128 S.E. 303; Keyser Canning Company v. Klots Throwing Company, 98 W.Va. 487, 128 S.E. 280; Ice v. Maxwell, 70 W.Va. 186, 73 S.E. 274; Pennington v. Gillaspie, 66 W.Va. 643, 66 S.E. 643; Johnson Foster, 66 W.Va. 453, 66 S.E. 643; Johnson v. Gould, 62 W.Va. 599, 59 S.E. 611; Butler v. Thompson, 52 W.Va. 311, 43 S.E. 174; Wick v. Dawson, 48 W.Va. 469, 37 S.E. 639; Blake v. Ohio River Railroad Company, 47 W.Va. 520, 35 S.E. 953; Seabright v. Seabright, 33...

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