Phillips v. Piney Coal & Coke Co

• Decision Date: 06 June 1903
• Citation: 44 S.E. 774,63 W.Va. 543
• Court: West Virginia Supreme Court
• Parties: PHILLIPS. v. PINEY COAL & COKE CO.

44 S.E. 774

63 W.Va. 543

PHILLIPS.

v.PINEY COAL & COKE CO.

Supreme Court of West Virginia.

June 6, 1903.

EQUITY—LACHES—DEMURRER—MARRIED WOMAN.

1. A bill is bad on demurrer when it appears therefrom that there have been unreasonable delay and laches on the part of the complainant in asserting the rights which are sought to be enforced.

2. A court of equity will not assist one who has slept upon his rights and shows no excuse for his laches in asserting them.

3. Under the statutes of this state, a married woman being authorized to act in respect toher separate estate as if she were unmarried, she is equally subject to the imputation and consequences of laches as if she were a feme sole.

¶ 3. See Equity, vol. 19, Cent. Dig. § 241.

(Syllabus by the Court.)

Appeal from Circuit Court, Raleigh County; J. M. Sanders, Judge.

Action by Nannie L. Phillips against the Piney Coal & Coke Company and others. Judgment for plaintiff. Defendant Piney Coal & Coke Company appeals. Reversed.

Brown, Jackson & Knight, for appellant.

J. H. McGinnis and J. W. McCreery, for appellee.

McWHORTER, P. Wilson Phillips was the owner of a tract of 435 acres of land in Raleigh county, and, desiring to convey to his wife 200 acres of the said tract, he and his wife on the 27th of May, 1879, by deed of that date, conveyed to Peter R. Wilson, the father of Nannie L. Phillips, the wife of the grantor, a part of said tract, described as follows: "Commencing at the mouth of a branch on Soak creek; thence following the stream until it empties into the waters of Piney river; then following the course of the waters of Piney river for the distance of two hundred and fifty poles; thence running in a northwesterly direction till it strikes the public road; thence following said road in a southeasterly direction till it strikes the branch of said creek, to place of beginning, containing two hundred acres more or less." At that time the grantor lived in Pennsylvania, and the description of the land was made according to the recollection of the grantor. On the same day, and by deed executed on the same sheet of paper, Peter R. Wilson and Louisa, his wife, conveyed, with general warranty, to Nannie L. Phillips, the same "piece of land described in the first page of this deed, " etc.; but the call running from the end of the 250 poles in the last named deed was made to read, "thence running in a southwesterly direction until it strikes the public road, " instead of "northwesterly, " as in first deed. On the 8th day of January, 1890, Wilson Phillips and Nannie L. Phillips, his wife, conveyed to Azel Ford the tract of 435 acres, describing the whole tract by metes and bounds, but "excepting from the above boundary a tract of land now owned by said Nannie L. Phillips and conveyed to her by Peter R. Wilson and wife by deed dated the twenty-seventh day of May, A. D. 1879"; then describing the land so excepted by the same description set out in the deed from Peter R. Wilson and wife to Nannie L. Phillips, which deed to Ford was recorded February 27, 1890. And by deed dated the 3d day of March, 1890, said Ford and wife conveyed, with general warranty, the said tract of land conveyed to him by said deed of the 8th of January, 1890, to Logan Bullitt, of Philadelphia, with covenants "to execute further assurances of their said lands and other property, rights, privileges and ease ments aforesaid as may be required, " which deed was recorded March 10, 1890. By deed dated the 5th day of May, 1898, said Bullitt, and his wife conveyed said land to the Piney Coal Company of Raleigh county, with like further assurances, which deed was recorded on the 12th day of May, 1898. At the March rules, 1900, process having been issued January 2, 1900, Nannie L. Phillips filed her bill in the circuit court of Raleigh county against the Piney Coal Company, Logan, Bullitt, Azel Ford, and Wilson Phillips, praying that said deed of January 8, 1890, made by Wilson Phillips and herself to Azel Ford, be reformed so as to run in a northwesterly direction till it strikes the public road, so as to give her the land described in the deed from her husband and herself to Peter R. Wilson, and as laid down by Milton Curtis on a plat filed with the bill as an exhibit—she having had the same surveyed by said Curtis—and for general relief. The defendant, Piney Coal Company, filed its demurrer in writing to plaintiff's bill, setting up, among other things, for cause of demurrer, that the said bill and exhibits show affirmatively that the tract of land claimed by plaintiff cannot be located, bounded, and described as claimed by her, and that plaintiff had been guilty of laches in waiting 10 years before bringing her suit, and suffering successive transfers of the land in controversy to be made in the meanwhile, and should therefore be denied relief; also that said bill failed to show how demurrant claimed said tract of land should be located, bounded, and described, or what land, if any, of said plaintiff, demurrant claimed. Defendants Ford and Bullitt also demurred to the bill, which demurrers were overruled. The defendants Piney Coal Company, Bullitt, and Ford, filed their several answers to the plaintiff's bill, denying the material allegations thereof, to which answers plaintiff replied generally. Defendant Wilson Phillips also filed his answer, admitting the allegations of the plaintiff's bill, and asked that proper relief be granted in the premises to all the parties according to the facts given in the case. Depositions were taken and filed by the respective parties, and on the 6th day of November a decree was rendered reforming the several deeds from Peter R. Wilson to Nannie Phil-lips, and from Phillips and wife to Ford, from Ford to Bullitt, and from Bullitt to the Piney Coal Company, and appointing a surveyor to go upon the land and lay off the two hundred acres more or less, to the plaintiff, according to the description given in the deed from Wilson Phillips and wife to Peter R. Wilson, on May 27, 1879; the said surveyor to give the parties to the suit 15 days' notice of the time of doing such work. From which decree the Piney Coal Company appealed.

The first question to be disposed of is the assigned error in overruling the demurrer. It is claimed that the plaintiff was guilty ofgross laches in the delay that she made in bringing her suit; being quite 10 years after the date of the deed to Azel Ford, and with no reasonable or sufficient explanation of such delay. Plaintiff held under a deed dated the 27th of May, 1879, which was admitted to record July 6, 1879, so that from the time the mistake was made to the date of the institution of the suit was within a few months of 21 years; but whether she could be guilty of laches, as between herself and her husband, it is immaterial here, as the time which elapsed after making the deed to Ford is sufficient to be fatal to her case, if a married woman can be guilty of laches. The only explanation that she attempts, in her bill, to make of her long delay of 10 years, is that as soon as she ascertained that the defendant set up any claim to her tract of land described in the deed of May 27, 1879, she caused a survey to be made. She fails to even allege that she did not know of the mistake in the deed all the time. She does not say when she first knew of it. Was it not her duty to know of this mistake, when her deed had been in her possession and of record...