Plaintiff v. Petitioner

• Citation: 20 W.Va. 351
• Court: Supreme Court of West Virginia
• Decision Date: 14 October 1882
• Parties: Corrothers et al. v. Sargent et al.

20 W.Va. 351

Corrothers et al.

v.Sargent et al.

Supreme Court of Appeals of West Virginia.

Submitted June 16, 1882

Decided October 14, 1882.

(*Haymond, Judge, Absent.)

1. It is well settled, that a point once adjudicated by a court of competent jurisdiction, however erroneous that adjudication, may be relied on as an estoppel in any subsequent collateral suit in the same or any other court, at law or in chancery, when either party, or the privies of either party, allege anything inconsistent with it; nor is it necessary that precisely the same parties were plaintiffs or defendants in the two suits, (p. 356.)

2. A decision upon a general demurrer to a bill, which has clearly gone to the merits of the case, is an effectual bar to further litigation; and where no formal defects appear upon the face of the bill the court will presume that the demurrer has gone to the merits, (p. 856.)

3. Several creditors, having separate claims, cannot unite in one suit in equity to attach the property of an absent debtor, (p. 359.)

Appeal from and supersedeas to a decree of the circuit court of the county of Taylor, rendered on the 9th day of September, 1876, in a cause in said court then pending, wherein Samuel Corrothers and others were plaintiffs and Thomas D. Sargent and others were defendants, allowed upon the petition of Samuel Corrothers and William Corrothers.

Hon. Charles S. Lewis, judge of the second judicial circuit, rendered the decree appealed from.

The facts of the case appear in the opinion of the Court,

Edwin Maxwell for appellants cited the following authorities: Acts 1872-3, p. 459; 26 Wend. 460; 15 Gratt. 304; 1 Rand. 219; 1 Mason 192, 214; 12 Leigh 332, 344; 5 Monroe 285; 5 J. J. Mar. 137, 144; 6 B. Mon. 74, 78; 15 W. va. 21; 10 W. va. 682.

No appearance for appellees.

Snyder, Judge, announced the opinion of the Court:

The appellants, Samuel Corrothers and William Corrothers together with M. I). Bainbridge and the administrator of Ignatius Gehring, deceased, instituted their joint suit in the circuit court of Taylor county, on the 20th day of March, 1869, against Thomas I). Sargent, Hiram Winchester, B. F. Winchester, Laurason Levering, The White Day Cannel Coal and Oil Company, The Maryland and Virginia Coal Oil Company and The Clifton Cannel Coal and Oil Company. The plaintiffs filed their original and amended bills in which they aver that they, the said Bainbridge, Samuel and William Corrothers and Gehring with the defendant Hiram Winchester, on the 22(1 day of February, 1859, entered into an agreement to form a joint stock corporation by the name of The White Day Cannel Coal and Oil Company; that, on the 8th day of March, 1859, the said corporation was duly created by a judgment of the circuit court of Taylor county with authority to purchase and hold two thousand acres of land; that said corporation purchased certain lands and among others the following situate on White Day creek in said county: One hundred and thirty-eight acres from the plaintiff, Bainbridge, at the price of ten dollars per acre, and three other tracts of two hundred and sixty, one hundred and fifty and six hundred and twenty-five acres from the plaintiffs, Bainbridge, Samuel and William Corrothers, the said Gehring and the defendant Winchester at the prices of one thousand one hundred and seventy-five dollars, three hundred and fifteen dollars, and three thousand and sixty-two dollars and fifty cents respectively; that by deeds all dated on the 16th day of April, 1860, the said lands were conveyed to said White Day Cannel Coal and Oil Company; that to secure the payment of the purchase-money for the said three last mentioned tracts a lien was retained on the face of the deeds conveying them as aforesaid; and that said purchase-money is still due and unpaid; that soon after the date of said deeds the said Winchester and others formed another corporation by the name of The Maryland and Virginia Coal Oil Company, and the said Sargent assuming to be the attorney in fact authorized to convey the lands of The White Day Cannel Coal and Oil Company, fraudulently combined with the said Winchester, who was president of both said corporations, and one B. F. Winchester who styled himself secretary, and those three persons, without any authority, made tor a nominal consideration, to the said Maryland and Virginia Coal Oil Company, what they call a special warranty deed for all the aforesaid lands; that the said pretended deed passed no title to the lands and they are in law still the lands of The White Day Cannel Coal and Oil Company, and liable for the debts of said company, and if not for the debts generally they are so liable for the purchase-money secured by lien thereon as aforesaid; that soon after the making of said pretended deed to The Maryland and Virginia Coal Oil Company the creditors of that company filed their bill in said circuit court of Taylor county and had all the right and title of said company in said lands sold to pay its debts at wThich sale the deiendant, Levering, became the purchaser and now claims said lands discharged of the lien of the plaintiffs retained on the deeds as aforesaid; that subsequently by deed, dated September 7, 1865, the said Levering conveyed all of said lands to the defendant The Clifton Cannel Coal and Oil Company; and that the defendants Sargent, Hiram Winchester, B. F. Winchester and Levering are non-residents of this State, and The White Day Cannel Coal and Oil Company as well as the Maryland and Virginia Coal Oil Company, have left the State and have no officers or office in the same. They pray that a decree may be rendered for the sale of said lands and for the payment of the purchasemoney liens due the plaintiffs out of the proceeds of such sale; that if the proceeds of the sale of the three tracts on which aid liens are retained are not sufficient to pay said liens then any residue may be paid out of the tract of one hundred and thirty-eight acres aforesaid; an el that they may have general relief, &c.

There is no allegation in the bill that The Clifton Cannel Coal and Oil Company is a non-resident of the State, but there is an affidavit of Samuel Corrothers tiled in which it is stated that all the defendants are non-residents.

On the said 20th day of March, 1869, a summons in chancery was issued by the clerk with an endorsement thereon requiring the officer to attach the aforesaid one hundred and thirty-eight, one hundred and fifty, two hundred and sixty and six hundred and twenty-five acres of land. This summons was returned by the sheriff of said county endorsed that he had levied the attachment, on the 28d day of March, 1869, on said lands, and that the defendants were all nonresidents of the State. An order of publication was taken and published against the defendants.

The defendants, Laurason Levering and The Clifton Cannel Coal and Oil Company, filed separate answers to the plaintiff's bill, to which there are general replications. The said answers are in effect the same and almost identical in their language. They state, that the plaintiffs have no cause of action against the defendants: that if the plaintiff's, or cither of them, have any claim, it is not joint but several, and the plaintiffs not having a common interest in the subject of the controversy, but several and distinct claims, if any, they cannot maintain their joint suit against the defendants; that heretofore, to-wit, on the 15th day of July, 1862, in the circuit court of said county of Taylor the said plaintiffs, Samuel and William Corrothers and Ignatius G eh ring, then living instituted their chancery suit against Morgan 1). Bainbridge, Hiram Winchester, Thomas I). Sargent and others to enforce what they then claimed to be a vendor's lien on the lands aforesaid then owned by The Maryland and Virginia Coal Oil Company; that said cause was regularly matured and set for hearing, and upon demurrer to said bill by some of the defendants therein the said court upon the hearing dismissed said bill; that the cause of action in said suit was and is the same the plaintiffs now sue for in this suit, to-wit, to enforce what they then and now claim was and is a vendor's lien on said lands; and the defendants say that the matters, liens and equities claimed by the plaintiffs in this suit have been adjudicated, &c. The said answers further aver that in all of said deeds the full payment of the purchase-money is acknowledged, and the plaintiffs have no vendor's lien, nor is there any purchase-money clue them, or either of them on said several tracts of land; that the conveyance of the said lands by the said White Day Cannel Coal and Oil Company to the Maryland and Virginia Coal Oil Company is valid and made according to the forms of law, and that the proceedings and conveyance by which the title of the said Maryland and Virginia Coil Oil Company was vested in the defendant, Laurason Levering, were regular and legal; that the said Levering paid all the purchase-money therefor, and that before his purchase, at the time thereof and since, he had no notice, either actual or constructive, that the plaintiffs had any...