Nease v. Capepart

• Decision Date: 09 July 1879
• Citation: Nease v. Capepart, 15 W.Va. 299 (W. Va. 1879)
• Parties: Nease et al v. Capepart, ex'k.
• Court: West Virginia Supreme Court

15 W.Va. 299

Nease et al

v.Capepart, ex'k.

Supreme Court of Appeals of West Virginia.

Decided July 9, 1879.

1. Where an issue out of chancery is properly directed, and regularly tried, whether directed by the appellate or inferior court, and a verdict rendered by the jury, unless there is some sufficient ground for setting aside the verdict, it must be held to be conclusive of the facts submitted, and a decree should be rendered in accordance therewith.

2. Generally the depositions of witnesses, taken after the verdict to which there is no sufficient objection and before the decree, cannot be read upon the final hearing of the cause.

3. After the verdict is rendered upon an issue properly directed, the court cannot look at the record for the facts submitted in the issue, nor to the facts or evidence certified upon the trial of the issue, but must accept the verdict of the jury for such facts, unless under the rules governing courts of equity in such cases it

set aside the verdict and grant a new trial.

4.the object in directing the issue is to satisfy the conscience of the chancellor, but that conscience must be satisfied with the verdict of the jury upon an issue properly directed, where no errors have been committed during the trial thereof either by the court or jury to the prejudice of either party.

5. If on the trial of an issue a court rejects evidence which ought to have been received, or receives evidence which ought to have been refused, though in that case a court of law would grant a new trial, yet if the Appellate Court is satisfied that, if the evidence improperly received had been rejected, or the evidence improperly rejected had been received, the verdict ought not to have been different, it will not grant a new trial merely upon such grounds.

6. If an exception is taken to the opinion of the court, excluding evidence, the exception must show the relevancy of the evidence, or it is no ground for reversing the judgment.

7. Where a question is propounded to a witness which is objected to, and the objection is overruled and an exception taken, but the exception does not state the answer of the witness, or that he answered the question, the Appellate Court will not on such an exception reverse the judgment.

8. A court cannot be required to certify the facts proved, where the evidence is conflicting.

9. Where a motion is made to set aside the verdict, and grant a new trial of an issue out of chancery, and the motion is overruled by the court, and the bill of exceptions certifies the evidence and not the facts proved on the trial, the Appellate Court will not reverse the decree and grant a new trial of the issue, unless by rejecting all the parol evidence of the exceptor, and giving full force and credit to that of the adverse party, the decision of the court in overruling the motion for a new trial still appears to be wrong.

10. The statute requiring of non-resident plaintiffs security for costs is constitutional.

Appeal from and supersedeas to a judgment ol the circuit court of the county of Mason, rendered on the 20th day of April, 1876, in a cause in said court then pending, wherein M. Nease and others were plaintiffs and J. Capehart, executor, and others were defendants, allowed upon the petition of the said plaintiffs.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the judgment appealed from.

Johnson, Judge, furnishes the following statement of the case:

About the year 1870, the original bill in this cause was filed in the circuit court of Mason county. Its object was to have it judicially determined that James Capehart, who at a sale under a trust-deed had bought two certain tracts of four hundred and twenty acres and one hundred and fifty acres, and to whom the trustee had conveyed the lands, bought the same for, and held the same under the conveyance in trust for the grantors in the trust-deed. Much evidence was taken in the cause; and upon the hearing the court dismissed the bill. The complainants appealed from the decree, and this Court, coming to the conclusion that an issue ought to have been directed in the court below, reversed the decree and remanded the cause for the trial of the following issue ordered by this Court:" Whether before the sale of the tracts of land, one containing one hundred and fifty acres and the other tour hundred and twenty acres, made on the 6th day of July, 1840, by Stribling, the trustee, to James Capehart, in the bill stated, it was agreed by him and Henry Capehart and Rogers, that James Capehart should purchase the two tracts of land for the benefit of Henry Capehart and Rogers, and hold them merely as security for the purchase-money paid by him therefor with interest." The case is reported in 8 W. Va. 95. The issue was tried in the circuit court, and on the 20th day of October, 1875, the jury rendered the following verdict: "We, the jury, find that before the sale of the tracts of land, one containing one hundred and fifty acres and the other containing four hundred and twenty acres, made on the 6th day of July, in the year 1840, by George W. Stribling, the trustee, to James Capehart, in the bill stated, it was not agreed by him, James Capehart, Henry Capehart and Nehemiah Rogers, that James Capehart should purchase the two tracts of land for the benefit of Henry Capehart and Nehemiah Rogers, and hold it merely as security for the purchase-money paid by him therefor with interest."

On the trial of the issue seven bills of exceptions were signed by the court, which will be referred to in the opinion. On the 20th day of April, 1876, a final decree was entered as follows:" The case came on to be finally heard upon the papers heretofore read, and proceedings had therein, the verdict of the jury upon the issue heretofore directed in this cause, and the orders and proceedings made and had upon the trial of said issue, all of which have been certified to this court, upon the seven bills of exceptions taken by the plaintiffs to the rulings and opinions of the court had in the trial of said issue, and also certified to this court, and upon the depositions of S. S. Webster and C. W. Sager, taken by the plaintiffs and filed in the case since the last term of the court, to the reading of which depositions at the hearing of the cause the defendants objected, * * and was argued by counsel. Upon consideration of all which the court is of opinion, that the plaintiffs are not entitled to the relief prayed for in their bill. It is therefore considered by the court, that the plaintiffs' bill be dismissed, &c." From this decree the plaintiff's appealed.

Tomlinson and, Polsley, for appellants, cited the following authorities:

8 Wall. 180; 12 Wall. 430; 1 Greenl. Ev. (10th ed.) 641, n. 1; 2 M. & Rob. 238; 12 Leigh 147; Adams Eq. 376, 377, 378 and notes; Story Eq. Jur. §§1479, 1479a and note; 2 Dan. Ch. Pr. 1146; 11 Wall. 610; 15 Wall. 471, 475; 3 Story R. 746, 747; 9 Gratt. 308; 11 Gratt, 752; 10 Leigh 628; Code W. Va., ch. 130, §35; 5 Leigh 197; Barton's Suit in Eq. 148; 1 Wash. 336; 5 Call 537.

Smith and Knight, for appellees, cited the following authorities:

8 W. Va. 133; Greenl. Ev., §101, n. 2; Id. §147; Starkie Ev. §§35-44; 5 Gratt. 168; 8 W. Va. 133; 7-W. Va. 723, 724; Id. 78; 22 Gratt. 191, 192; Code 1868, p. 627, §15; Code Va. I860, p. 733, §15.

William A. Quarrier, for appellees:

1. The court will not set aside a verdict upon an issue out of chancery for technical errors in the admission or rejection of testimony; in this respect it differs from a verdict in any ordinary law case. Henry v. Davis, 7 W. Va. 720; Barker v. Bay, 2 Russ.R.

2. If the circuit court erroneously require security for costs, and the complainant gives the security, this is not such error as will reverse the case. Vance v. McLaughlin, 8 Gratt. 289; Culpepper v. Genett, 20 Gratt. 520; Barton's Practice 397.

3. A parol trust cannot be proven by the "general understanding in the country." Johnson v. Jennings, 10 Gratt, 1; Garlton, Chamherlin & Go. v. Mays & Co., 8 W. Va. 245; 2 Wharton's Ev., §§1037, 1032; 1 Greenl. 124.

4. The declarations of a dead person, while he was in possession of land that he claimed it as his own, cannot be given in evidence against a stranger; it is only declarations reducing his interest below a fee that can be given, declarations that are in invitum or self disserving. Wharton's Ev. §§236, 1156.

5. A complainant cannot be examined as a witness to a conversation that occurred between the ancestor of the defendants, with his co-plaintiffs, relative to the subjectmatter of the suit.. Wharton's Ev., §§466-470 and notes.

6. If an improper question is allowed to be asked a witness by the circuit court, and if the bill does not show that he answered, and what the answer is, this, court will not reverse. Johnson v. Jennings, 10 Gratt. 1; 25 Gratt. 887.

7. If the evidence is certified, and not the facts proven, Appellate Court in reversing the action of the circuit conrt in refusing a new trial in an issue out of chancery, will disregard all the evidence of the exceptor and will not disturb the verdict, if it is sustained by the evidence of the appellees. Henry v. Davis, 7 W. Va. 715; Lamberts v. Cooper, 29 Gratt. 61.

8. When the evidence is conflicting the Appellate Court will not disturb the verdict. 3 Leigh 436; 7 W. Va. 665; 2 Gratt. 18; 6 Gratt. 712; 7 W. Va. 715.

9. An appeal will not lie where the circuit court refuses to sign a bill or signs an improper bill. The remedy is by mandamus. Douglass et al. v. Loomds, 5 W. Va. 542; Jackson v. Henderson, 3 Leigh 234; Taliaferro v. Iranklin, 1 Gratt. 332.

10. When the evidence is conflicting, the circuit court ought to refuse to sign any bill on the overruling of a motion for a new trial. Taliaferro v. Franklin, 1 Gratt. 332; Gray soil's case, 6 Gratt. 712; Burks v. Callaway, 12 Leigh 466; Bennick v. Carrell, 4 W. Va. 627.

Johnson, Judge, delivered the opinion of the Court:

It is insisted by counsel fo...