On ual v. Stimson.

• Decision Date: 19 March 1907
• Citation: On ual v. Stimson., 61 W.Va. 551 (W. Va. 1907)
• Parties: On ual v. Stimson.
• Court: West Virginia Supreme Court

61 W.Va. 551

On ual

v.Stimson.

Supreme Court of Appeals of West Virginia.

Submitted September 12, 1906.

Decided March 19, 1907.

1. Inkajnts Action Against Guardian Ad Litem.

A bill for the partition of lands in which infants are part owners and not named in the caption of the bill or otherwise, except incidentally as wards of A. B. their guardian who is sued as administrator and guardian. Held: Said infants art; not thereby made parties to the suit; and it is not competent for the clerk of the circuit court to appoint a guardian ad litem for such infants in said cause as if they wore defendants in the suit, (p. 553.)

2. Same Filing of An Hirer.

In such case the filing-of an answer by such guardian ad litem for such infants is improper and wholly without effect, (p. 554.)

3. Same Judgment.

The infants not being parties to the suit, their rights cannot be adjudicated therein and a decree entered is null and void as to them. (p. 556.)

4. Partition Decree--Effect of Parties.

A decree of partition rendered in a suit in which all the persons in interest were not parties is null and void. (p. 55(5.)

5. Same Sale of Land.

In proceedings for partition, a decree for the sale of the land and a distribution of the proceeds cannot be made without there has been an averment and proof of facts showing that the lands cannot be fairly divided or equitably partitioned, (p 556.)

6. Tenancy tn Common Rights of Co Tenants Adverse Possession.

Syllabus, points 2, 3 and 4, Justice v. Lawson, 46 W. Va. 163, approved and applied, (p. 558.)

7. Equity Pill Defect of Parties.

A defective bill in equity, rendered bad on demurrer by failure to name therein as defendant a necessary party, is not cured by entering an order in the case dismissing the suit as to such party, he in no way being a party thereto, (p. 560.) (Popfenbarger, Judge, Absent.)

Appeal from Circuit Court, Wyoming County. Hill by Joseph P. Oneal and others against L. T. Stimson and others. Decree for defendants, and plaintiffs appeal.

Reversed.

John E. Blake, Gilmokr & Worrell and T. G. Mann, for appellants.

Marvin T. Bowman and McGinnfs & Hatcher, for appellees.

McWhort er, JUDGE

Without commenting on the condition of the record, especially of the many bills, in this cause, for surely "it is wonderfully and fearfully made," I will state that it appears to be a suit for the purpose of setting aside decrees rendered by the circuit court of Wyoming county in 1889 and 1900 in a suit for partition by sale of land and division of the pro- ceeds among those entitled and also to set aside and cancel a conveyance of real estate sold under such decrees made and executed on the c21st day of October in the year 1900. It appears that Nicti Oneal and I). J. Oneal were the owners of a tract of 40 acres of land on the waters of Slab Fork of Laurel Fork of Guyandotte River in Wyoming county; that the said Nicti Oneal died in the year 1887 intestate and that her-husband, John Oneal, also died intestate in 1888, leaving twelve children their sole heirs at law, namely: William Oneal, J. 11. Oneal, Hiram Oneal, Rachel Oneal, Joseph P. Oneal, Andrew Oneal, I). J. T. Oneal, Mary Allen wife of Robert Allen, Rebecca Hager wife of J. (). Hager, flames R. Oneal, Nancy Milam wife of Lewis Milam, and John R. Oneal. That William Oneal, one of the heirs at law, filed his bill in said Wyoming circuit court at the March rules, 1889, naming as defendants thereto J. H. Oneal, Hiram Oneal, Rachel Oneal, Lewis Milam administrator of John Oneal, deceased, and guardian of Andrew Oneal, Joseph P. Oneal and I). J. Oneal, the last three infants, children and heirs at law of John and Nicti Oneal, deceased, and Mary Allen late Oneal and Rebecca Oneal, alleging that John Oneal, deceased, was the equitable owner of the said 40 acres of land and that on the 5th day of June, 1882, he caused said land to be conveyed to Nicti Oneal jointly with I). J. T. Oneal; that Nicti Oneal died seised of one undivided half of said tract of land and that one undivided half was given to said D. J. Oneal as a portion; that plaintiff was one of the sons and heirs at law of the said decedents as also were the defendants J. H. Oneal, Hiram Oneal, Rachel Oneal, Rebecca Oneal, Andrew Oneal, John Oneal, I). J. Oneal, and Mary Allen, late Mary Oneal, and as such were entitled to a partition of said land, and that plaintiff was desirous to have said land sold and the proceeds divided amongst the heirs except I). J. Oneal, one of the heirs, who should not be allowed to participate in the undivided half of which Nicti Oneal died seized without bringing his half into hotchpot; and prayed that the land be sold and proceeds divided accordingly. Plaintiff William Oneal filed an amended bill against the same defendants and James R. Oneal, John R. Oneal, Nancy Milam and Lewis Milam praying that the said 40 acres be sold and the proceeds divided. The court appointed commissioners who divided the tract, giving I). J. Oneal 22 acres, setting the same apart to him and 18 acres to the other heirs. The court decreed the 22 acres to said D. J. Oneal and the sale of the 18 acres to divide the proceeds thereof among the heirs. The same was sold under said decree by Commissioner Col. Childers, appointed for that purpose, which sale was confirmed to the purchaser L. T. Stimson.

Joseph P. Oneal and Andrew Oneal filed their bill in the circuit court of said county against L. T. Stimson, Julia Stimson, John Ball, Sallie Ball and others, purchasers of parts of the 18 acres so sold and conveyed to Stimson, who had laid oil the 18 acres in lots and put them on the market, alleging that they were not parties, defendants to the suit of William Oneal; that they were entitled to their interest in the said 40 acres and praying that the proceedings in the suit of partition of William Oneal, including the decrees and deed conveying the said 18 acres to Stimson, be declared null and void and the decree set aside and the deed cancelled. Four amended bills were filed by the plaintiffs, Joseph P. Oneal and Andrew Oneal, joining with them as plaintiffs dames R. Oneal and Nancy Milam who alleged also that they were not made parties to the suit of William Oneal nor served with process therein and who also joined in the prayer to set aside said proceedings as null and void, and for partition of said 18 acres of land. The said 22 acres set apart to 1). J. Oneal as his undivided moiety is not contested or brought in question in this suit.

The infants, Joseph P. Oneal, Andrew Oneal and I). J. T. Oneal, in said suit of William Oneal are not named at all as defendants.. Lewis Milam is sued as administrator of John Oneal, deceased, and guardian of said three infants and this is the only manner in which they are named in the bill: that is, not as defendants but as being the wards of their guardian who is sued. Section 3857, Code 1906, (section 37, chapter 125) prescribes the form of a bill and that, "Every person designated in the caption of such bill as defendant shall be a defendant therein, without a prayer that he be made such and shall be required to answer the bill in the same manner and to the same extent as if he were therein called upon to do so." These infants are not mentioned in the bill as defendants but as wards of Lewis Milam their guardian who is sued. There is no allegation touching the interest of these infants or in any way connecting them with the suit. That was a suit to partition or sell property in which they had an interest. In Chapman v. Railroad Co., 18 W. Va. 184, it is held that, although a person be named in the prayer of the bill and also in the summons and served with process, yet if there is no allegation in the bill with reference to him, he is not a party to the suit. And if not a party his rights cannot be adjudicated therein. In Cook v. Dorsey, 88 W. Va. 196, it is held: "The bill must formally or in some plain, distinct way make parties plaintiff and defendant; otherwise, it is fatally defective, and a, decree upon it would be null." And in Preston v. West, 55 W. Va. 891 (47 8. E. 152) it is held: "A person cannot be made a party to a bill by merely inserting his name in the caption thereof, but the bill must contain some allegation showing such person's interest or claim to interest in the subject matter in controversy."

In addition to the said infants there is no allegation in either the original or amended bill of William Oneal showing in any manner that John R. Oneal, James Oneal and Nancy Milam, or either of them, were among the heirs at law of John Oneal and Nicti Oneal. In Preston v. West, supra, the second and third points of the syllabus are as follows: "A lull which makes a person a party in the caption thereof but contains no allegation showing such person's interest or claim to interest in the subject matter in controversy, is demurrable." "If the circuit court overrules such demurrer and grants the relief asked in such bill as to the subject matter in controversy without having such nominal party properly impleaded as to such subject matter, although other pleadings in the cause show that such nominal party is claiming the whole of such property, such nominal party may appeal from such decree and have the same reversed." And in Moseley v. Cocke, 7 Leigh 224, where a bill in chancery was against several defendants, process issued against one not made a party defendant in the bill and against whom there was no allegation therein and no relief prayed and a decree was made against him by default and against other defendants, some of whom appealed where the decree was reversed as to the appellant and in all things else affirmed, it was held: "The decree was a mere nullity as to the party who was not named in the bill and as to whom the bill contained no allegation and prayed no relief." McCoy v. All en, 16 W. Va. 724; Shaffer v. Betty, 39 Va, 248 (4 S. E. 278); Bland v. Stewart, 35 W. Va. 518 (14 S. E. 215). In Rexroad v. McQuain, 24 W.Va. 32,...