Plaintiff v. Petitioner

• Decision Date: 03 November 1883
• Parties: Chapman et al. v. Maitland et al.
• Court: West Virginia Supreme Court

22 W.Va. 329

Chapman et al.

v.Maitland et al.

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1883

Decided November 3, 1883.

April 26, 1871,

1. The plaintiffs instituted their suit in chancery against the defendants on April 26, 1871, and sued out a summons dated that day, whereof neither the return day, nor the officer's return on the summons, appeared in the record, nor did it appear that there was ever any personal service of said process on any of the defendants, nor that any order of publication was ever executed or that any attachment issued in the cause, nor did it appear by affidavit or otherwise, that there was any other ground on which to found the jurisdiction of the court than the residence of the defendants in the county in which the suit was brought. Held:

I. That the suit abated on the return day of the summons, when it appeared by the return on the summons that the defendants were non-residents; and that although no such return was in fact made, yet if it appears in the record, by an affidavit tiled therein, that the defendants were in fact non-residents it sufficiently appears, that they were nonresidents, and is equivalent to such return; and

II. That in such a case the said suit abated, at the farthest, at the expiration of ninety days from the date of such summons. (p. 345.)

2. The court having by an order entered in said cause after the suit was abated removed the cause to a court in another circuit there to be heard and determined, which court proceeded therein to decree, settling the rights of the parties, and decreeing a sale of the defendants' lands, all such proceedings in said cause subsequent to said abatement are void. (p. 347.)

3. The only defendant against whom any relief was asked, not having

entered a general appearance to said suit, either at rules, or in term, has a right to appear in the cause, and object to the jurisdiction of the court; and if his objection be overruled, and such ruling be erroneous, this Court will reverse the same, although he afterward appeared to the suit, filed his answer and made full defence thereto, unless he expressly waived such objection; and such objection to the jurisdiction of the court may be made in his answer to the bill. (p. 347.)

4. In such a case, this Court will reverse all decrees entered therein, and dismiss the plaintiff's bill, without prejudice to any other proper proceeding which he may institute to obtain the relief or any part thereof, sought to be obtained by his said suit which lias been so dismissed (p. 347.)

Woods, Judge, furnishes the following statement of the ease:

On the 26th of April, 1871, Augustus A. Chapman, Wm. If. French and Manelius Chapman, sued out of the clerk's office of the circuit court of Mercer county, a summons in chancery against Joseph Maitland, Frank II. Lane, Cornelius Curtis, and certain other defendants, described as the administrator, heirs and widow of one Guy I). French; but when the said summons was returnable, or what return was in fact made thereon does not appear, as they are not copied in the transcript of the record before this Court. But as section 2, chapter 124 of the Code requires such process to be "made returnable within ninety days from the date thereof, in the court on the first day of the term, or to the clerk's office to the first Monday in a month, or to some rule day," and as this Court judicially knows, that the first day of that term of the said court in Mercer county, occurring within ninety days from the date of said summons was the 7th day of May, we know that the said summons could not have been returnable later than the July rules 1871.

At the June rules 1871, an order of publication was taken against the said Maitland, Lane and Curtis, and also against all the other defendants except the administrator, and one of the heirs of Guy 1). French, wherein it is stated that it appeared by an affidavit filed, that all the other defendants are non-residents of this State, but the affidavit does not otherwise appear in the record.

It further appears from the certificate of the clerk ot said court, that said order of publication was duly posted on the 6th day of June, 1871, but there is no evidence that the same was ever published, as required by law; nor does it in any manner appear that the summons was ever executed on any body, or that any of the defendants except Joseph Maitland, ever for any purpose, appeared in the cause. It does not appear when the plaintiffs' bill was filed, except that it was filed at "rules" which must have been after the date of the summons, hut whether before or after the affidavit for the order of publication was made does not appear. The bill in substance alleged, that the plaintiffs Augustus A, Chapman, Wm. II. French, Manelius Chapman and Guy D. French then dead, being the owner of two hundred and eight tracts of land containing in the aggregate fifty thousand acres, lying within the boundaries, and forming parts of a large survey of five hundred thousand acres granted to Wilson Cary Nicholas by the State of Virginia, and known as the "Wilson Cary Nicholas survey," situated in the counties of Mercer and Wyoming in West Virginia and in Tazewell county, Virginia, they entered into an agreement under seal with said Joseph Maitland, on the 25th day of November 1854, whereby they agreed to sell to him, and he to buy of them the two hundred and eight smaller tracts containing fifty thousand acres for the price of thirty-six thousand dollars; that on and before November 25, 1854, the said Maitland was the owner of all the residue of said W. C. Nicholas survey of five hundred thousand acres, the title to which was unsettled, and the boundaries thereof not then ascertained. The bill further alleged that Maitland agreed that the said thirty-six thousand dollars should become payable whenever the title to said five hundred thousand acres survey should be settled by sufficient judicial decisions, and when Maitland should make sale of said five hundred thousand acre survey; but if Maitland should be offered for said five hundred thousand acres, a price as great as one hundred and twenty-five thousand dollars, and should refuse to sell, the survey, then from the date ot such refusal to sell, the said thirty-six thousand dollars was to bear interest until paid; it further alleged that it was turther agreed by Maitland, that upon the execution and delivery to him by said vendors of a deed conveying to him with warranty the said fifty thousand acres of land, he would execute to them his bond in the penalty of fifty thousand dollars, conditioned for the payment of said thirty-six thousand dollars, which bond should constitute a lien not only on the fifty thousand acres sold by them, but also on the whole of the interest then held by Maitland in said five hundred thousand acres survey, or which he might thereafter acquire therein. The bill further alleged that it was further stipulated between said vendors and Maitland, that if the title to said five hundred thousand acres survey should not be established, or the same should not be sold as hereinbefore stated, Maitland would re-convey said fifty thousand acres to said vendors; that the said vendors on the 18th of July, 1855, executed and delivered to Maitland a deed conveying to him their interest in said five hundred thousand acres, which was recorded in the proper counties, which deed so made and delivered to Maitland was made part of said bill, and is in these words:

"This indenture, made this 18th day of July, 1855, by and between Guy 11. French and Araminta D., his wife, William H. French, Augustus A. Chapman and Mary R., his wife, Manelius Chapman and Susan, his wife, of the first part, and Joseph Maitland, of the second part, witnesseth:

"That the said parties of the first part, in consideration of the sum of thirty-six thousand dollars, secured to be paid, but not yet paid to them by the said Joseph Maitland, do grant and convey with special warranty unto the said Joseph Maitland, his heirs and assigns, all their right, title and interest, of every kind whatsoever, in and to all that certain tract, parcel or body of land lying and being in the counties of Mercer, Tazwell and Wyoming, in the State of Virginia, and perhaps extending into other counties, containing five hundred thousand acres of land, according to original survey made for William C. Nicholas on the 9th day of September, 1794, and which was patented to the said Nicholas on the 25th day of June, 1795, lying on Bluestone and Guyandotte rivers and their waters, and especially that portion of the said survey, tract or body of land which is known as 'the reservation/ together with all the proceeds of sales of any portion of the said land which are not yet paid over to the said parties on the sales of any portions of the said lands made by them, and all the rights, liens and equities arising from such sales to have and to hold the said right, title and interest in the said lands, and the appurtenances of every kind, and the said proceeds of sales, with the rights, liens and equities arising therefrom, unto him, the said Joseph Maitland, his heirs and assigns, to his and their only use and behoof forever. The said parties of the first part, for themselves and their heirs, hereby covenant with the said Maitland, his heirs and assigns, that they will hereafter, whenever required, execute to him such other and further conveyances of the said interests in the said land and the proceeds of sales as they have by any writing heretofore agreed to do, or which may be necessary fully to vest in the said Maitland, ' his heirs and assigns, a complete and clearly defined title to their interests in the said land and its appurtenances, and in the said proceeds of sale or so much thereof as they have sold. "Witness the following signatures andseals:

"Guy 1). French, [seal.]

"A. I). French, v [seal.]

"William H. French, [seal.]

"Augustus A....