Perkins et als. v. Pfalzgraff.

• Decision Date: 10 April 1906
• Citation: 60 W.Va. 121
• Court: West Virginia Supreme Court
• Parties: Perkins et als. v. Pfalzgraff.

60 W.Va. 121

Perkins et als.

v.Pfalzgraff.

Supreme Court of Appeals of West Virginia.

Submitted June 15, 1905.

Decided April 10, 1906.

1. LIs Pendens Final Decree Reversal of Judgment Effect Bona Fide Purchaser.

H. J. F. made his will devising all his real estate to C. E. H. and L. F, C. trustees and providing that one-fourth should go to H. F., one-fourth to the lawful children of P., one-fourth to the children of H., and the remaining fourth to the children of C.; by codicil the testator afterwards revoked the devise to the children of H. and the children of C. and died intestate as to said two-fourths. H. J. F. Jr., son and only heir at law of the decedent, instituted suit in the circuit court of the United States to set aside the will and on the 21st day of January, 1885, a decree was entered by said court annulling and setting aside the will and directing the trustees named in the will to convey all the real estate of which H. J. F. died seized to the plaintiff H. J. F. Jr., which they did on the 10th day of February, 1885, by deed of that date; on the 24th day of July, 1885, H J. F. Jr. and his wife conveyed 300 acres of the said real estate to L. P. who entered into possession of and hold the same, farming it. putting improvements upon it and paying the taxes thereon. On the 11th day of June, 1890, the children of P., three of whom were infants, the other two having then recently reached their majority, filed their bill of review and caused the decree of January 21, 1885, to be reversed and annulled. Held: the title of L. P., he being a purchaser for value without notice, is not affected by such reversal. (p. 122.)

2. Adverse Possession Bona Fide Purchaser,

L. P. being a purchaser for value without notice held possession adversely and was not a co-tenant with the claimants under the will of H. J. F. (p. 130.)

3. Appeal Reversal Effect Rights of Third Persons.

Rights, acquired bona fide by a third party under a final decree rendered by a court of competent jurisdiction, are not affected by a subsequent reversal thereof. (p. 133.)

4. Equity Bill of Review Nature of Remedy.

The decree being final, the bill of review is a new suit having for its object the correction of the final decree in the former suit. (p. 133.)

5. Judgment Foundation in Pleading.

A decree to be valid must be based upon proper pleadings, without which it is void. (p. 136.)

Appeal from Circuit Court, Wood County.

Suit by Elma Perkins and others against Lewis Pfalzgraff and others. From a decree for plaintiff, defendants appeal.

Reversed.

Camden & Peterkin, for appellant.

Dave D. Johnson, for appellees.

McWhorter, President:

Henry J. Fisher died in 1883, leaving a will devising and bequeathing his whole estate, real, personal and mixed, wherever situated, to Charles E. Hogg and L. F. Campbell in trust for the uses and purposes named in the will, providing therein for a small support for his son Henry J. Fisher who was his only heir-at-law. The 3rd clause of his will is as follows:

"Third. And in case my said son shall die without lawful issue, I desire that his widow be comfortably supported out of my estate, during widowhood, and the residue of my estate, that is not required for a comfortable support of my son's widow, during her widowhood as aforesaid, I desire to be disposed of as follows: One-fourth thereof to Mrs. Henrietta Fowler, my natural daughter; one-fourth thereof to the lawful children of Nicholas Perkins, by his present wife; one-fourth thereof to the children of John Heisner, deceased, of Gallipolis, Ohio; and the remaining one-fourth to the children of my sister, Sophia Choen." He added to the will a codicil on the 25th of January, 1883, as follows: "I hereby revoke the bequests made by me to the children of John Heisner, deceased, of Gallipolis, Ohio, and also the bequests made by me to the children of my sister, Sophia Choen, contained in my will dated January the 20th, 1879."

In April, 1884, Henry J. Fisher, Jr., instituted a suit in chancery in the United States Circuit Court for the District of West Virginia, under the title of Henry J. Fisher, Jr. vs.. Eliza S. Fisher, widow of Henry J. Fisher, Sr., deceased, Charles E. Hogg, L. F. Campbell, executors of the will and trustees of the estate of the testator, Henrietta Blackburn, Nicholas Perkins and Susan Perkins, his wife, Elma Perkins, Shelby Perkins, Lila Perkins, Mary Perkins, and Eugene Perkins, for the purpose of having the will of his father declared null and void for the reason as alleged by him that it created a perpetuity. Such proceedings were had in said cause that on the 21st day of January. 1885, a decree was rendered therein, setting aside and holding for naught the said will, and directing the said Charles E. Hogg and L. F. Campbell to convey by proper deed of conveyance all the real estate of which the testator died seized to the plaintiff Henry J. Fisher, and that they transfer and deliver to him all the other property, and inhibiting and restraining said Hogg and Campbell from exercising any office or power or doing any act as such trustees except in making and conveying and transferring the said real estate and other property and decreed that the said Hogg and Campbell, executors of the said last will and testament, pay the costs of the suit out of the goods and chattels in their hands unadministered. On the 10th day of February, 1885, the said trustees under and by virtue of said decree conveyed to the said Henry J. Fisher, by deed of that date, all the real estate which came to them by virtue of the said will. On the 24th day of July, 1885, Henry J. Fisher and his wife, Maria P. Fisher, conveyed to Lewis Pfalzgraff a tract of 300 acres of land in Wood county, part of the land of which his father had died seized, and which was conveyed to said Henry J. Fisher by said trustees. Said Pfalzgraff at once took possession of said tract of land under his purchase from Fisher and wife and continued in the possession thereof ever after. On the 11th day of June, 1890, more than five years after the final decree had been entered annulling and setting aside the will of the senior Fisher, a bill of review was filed by Elma Perkins, Shelby Perkins, Lila Perkins, Mary Perkins, and Eugene Perkins, the last three being infants suing by their next friend Nicholas Perkins, seeking to review the final decree entered by the United States Circuit Court on the 21st day of January, 1885. A demurrer to the bill of review was interposed by the defendant Lewis Pfalzgraff and others of the defendants which demurrer was sustained. An appeal was taken by the plaintiffs in the bill of review from the decree sustaining the demurrer thereto. On the 16th day of March, 1894, the decree of the lower court was reversed by the Circuit Court of Appeals of the United States and the cause remanded. While the case was pending on a bill of review Maria P. Fisher, widow of Henry J. Fisher, Jr., filed her petition praying that she might be allowed a comfortable support out of the estate if the will should be decreed to be valid. When the case on the bill of review was remanded to the court below Maria P. Fisher suggested the death of Henry J. Fisher, the plaintiff in the original bill, and on her motion the same was revived in her name as sole devisee of Henry J. Fisher, deceased; and the causes were further heard together and upon the petition of Maria P. Fisher and upon her motion by counsel, and upon motion of the Ohio River Railroad Company by its attorneys, the cause was referred to John T. Harris to take, state and report to the court an account showing the real estate of which the senior Fisher died seized and who claimed to be the present owners of such estate and under wThat title they claimed, and the fair rental value of each tract of land, or house and lot, of which the said senior Fisher died seized, and what had been the yearly rental value of each of said tracts or lots for each year since his death, the annual rental value of each of said tracts of land or houses and lots at the time of taking the account, the value of the improvements made upon said land or lots or any of them since the death of said senior Fisher, by whom made and what increase in rental value had resulted from such improvements, and what the present pro rata rental value of such improvements, and the age of the widow of Henry J. Fisher, Jr., and what would be the sum necessary to her comfortable support during her widowhood, and what personal estate if any came to the hands of the executors and trustees Hogg and Campbell, and what disposition was made of the personal estate. The commissioner filed his report showing the real estate of which the senior Fisher died seized, among which was a tract of 300 or 322 acres so conveyed to defendant Pfalzgraff and that said Pfalzgraff claimed title to said tract under the said deed from Henry J. Fisher and wife; that the rental value of that tract was $150.00 a year and that the average rental value for every year since the elder Fisher's death had been $125.00; that Pfalzgraff's improvements on said tract were of the value of $1,500.00 and that he had paid on the tract during the time in taxes $4:68.51. On the 20th of February, 1897, a decree was entered in the original suit, and upon the bill of review of the Perkinses based upon the report of the commissioner ascertaining the amount necessary for the support of Maria P. Fisher, widow, to be $700.00 the proportion of which assessed against the Pfalzgraff tract being $45.85 a year, and charged the several parcels of land the amounts decreed against them to be paid as an annual charge from June 18th, 1887, the date of the death of the husband, and fixed the First day of January in each year beginning with the First day of January, 1888, as the time of payment; and decreed the plaintiffs, the Perkins children, to be the owners in fee simple of the undivided fourth interest in all of said lands, and likewise the...