Patton v. Eicher

• Decision Date: 03 February 1920
• Docket Number: 3862.
• Citation: 102 S.E. 124,85 W.Va. 465
• Parties: PATTON v. EICHER ET AL.
• Court: West Virginia Supreme Court

102 S.E. 124

85 W.Va. 465

PATTON v. EICHER ET AL.

No. 3862.

Supreme Court of Appeals of West Virginia.

February 3, 1920

Submitted January 20, 1920.

Syllabus by the Court.

The general control possessed by the state over property within its borders carries with it the power through its courts to protect titles to land situated therein against the claims of nonresidents upon whom it is impossible to obtain personal service. Though the state's process goes not out beyond its borders to bring the person of a nonresident within its jurisdiction, yet it may determine the extent of his title to real estate within its limits, and, for the purpose of such determination, may provide any reasonable methods of imparting notice.

The circuit court of the county wherein the land lies has jurisdiction, on order of publication, to hear and determine the claim of a plaintiff that a nonresident defendant holds title to such land as trustee for the benefit of the plaintiff and subject to his right to have conveyance thereof made to him pursuant to the agreement alleged to exist between them. And if, upon full and satisfactory proof, it determines the right to exist as plaintiff alleges, the court may grant relief by a decree in the nature of a decree in rem, appointing a special commissioner to convey the legal title.

A defendant who appears in a cause for the special purpose of making a motion challenging the jurisdiction of the court in which such cause is pending does not thereby submit to such jurisdiction, whether his motion does or does not prove to be well founded.

Appeal from Circuit Court, Ohio County.

Proceedings by T. H. Patton against C. Ward Eicher and others to quiet title. The bill was dismissed for want of jurisdiction, and plaintiff appeals. Reversed and remanded.

Hubbard & Hubbard, of Wheeling, for appellant.

J. M Ritz, of Wheeling, for appellees.

LYNCH J.

This writ prosecuted by plaintiff below brings here for review the decree of the circuit court of Ohio county dismissing his bill for want of jurisdiction of the subject-matter of the suit and of the persons of the defendants, neither of whom resides in this state and to whom the only notice of the pendency of the suit was by a duly executed order of publication. The material allegations of the bill are: That prior to February 23, 1917, plaintiff was the owner of an undivided one-third interest in 1,553 acres of coal land situate in Ohio county, W.Va., which was subject to the lien of a deed of trust executed by plaintiff in 1911 to defendant Cecil E. Heller, trustee, to secure payment of a bond issue aggregating $18,000; that defendant was unable to pay said indebtedness at its maturity on February 15, 1916, whereupon sale of plaintiff's property was advertised by the trustee for February 23, 1917; that on the day immediately preceding the sale the plaintiff, feeling confident of the immediate consummation of negotiations for a private sale of certain other coal land owned by him in Washington county Pa., likewise subject to the same lien, at a price more than sufficient to pay off the entire indebtedness, apprised Heller of such negotiations, and they agreed between themselves that the latter should formally offer the Ohio county property for sale in accordance with the advertisement, and bid it in at the price of $5,000, and reconvey to plaintiff the title thereto upon his payment of the entire indebtedness when the private sale of the Washington county coal property was perfected, and an additional $1,000 to compensate the trustee for the services occasioned by the agreement; that, accordingly, the trustee proceeded to and did make such sale, and bid in the property at the price stipulated by them, but in the name of defendant C. Ward Eicher, his personal friend, business partner, and professional associate, who had full notice and knowledge of the agreement; that the property so sold was then worth approximately $50,000; that by deed dated February 27, 1917 the trustee conveyed said property to Eicher; that the private sale of the Washington County coal land was delayed in consummation, but that plaintiff had procured other parties who were ready to take an assignment of plaintiff's indebtedness, pay the trustees the balance due thereon, and accommodate plaintiff by extending the time for payment thereof and to pay the trustee or Eicher the said sum of $6,000 for a conveyance of the Ohio county coal and mining rights, pursuant to said agreement; that such persons at the instance of plaintiff, offered such payments to the trustee and to Eicher, but each of them refused to accept the money and reconvey the property; that the plaintiff had at all times thereafter been able, willing, and ready, and here offers, to pay to the defendants or either of them the $6,000 or such other amount as the court may deem proper, for the redemption of the property so sold; that the trustee on June 30, 1917, sold part of plaintiff's Washington county property and received at said sale a price sufficient to pay the remainder of his indebtedness; and that defendant Eicher now fraudulently asserts that he is the unconditional owner of the Ohio county property, free and discharged from any trust in favor of plaintiff.

The prayer of the bill asks that defendant Eicher be adjudged to hold title to the above-mentioned coal lands as trustee for the benefit of the plaintiff and subject to the right of the plaintiff to have conveyance thereof made to him or his assigns upon payment of $6,000 or other proper compensation.

Defendants, evidently intending to avoid subjection of their persons to the jurisdiction of the court, "appeared specially * * * for the sole and only purpose of moving to dismiss said suit on the ground that it appears from the face of the record that the court does not have jurisdiction of the subject-matter of said suit, or of the persons of the defendants." This motion the court sustained and dismissed the bill.

Plaintiff relies for reversal upon two propositions: (1) That this is a suit in rem in which the court can and should enter a valid decree upon constructive service; (2) that by uniting in a motion...