Plaintiff v. Petitioner
| Decision Date | 04 April 1894 |
| Citation | 39 W.Va. 231 |
| Court | West Virginia Supreme Court |
| Parties | Williamson et al. v. Jones et al. |
A person who causes his land to be sold for some purpose of his own under a judicial proceeding, which turns out to be void, and receives and retains the proceeds of sale, can not afterwards be heard to question its validity. He has made his election.
If such person afterwards stands by and sees the purchaser expend large sums in developing oil on the property, he may not afterwards set up such defect in the purchaser's title; he is estopped.
Petroleum or mineral oil in place is as much a part of the realty as timber, coal, iron ore, or salt water
It is apart of the inheritance, and an unlawful removal thereof is a disherison of him in remainder constituting waste, which a court of equity in a proper case will restrain and enjoin.
A case in which the remainder created by the will is held to be vested, not contingent, and those in remainder not to be parties to the suit by representation.
Caldwell & Caldwell for appellant:
1. The Circuit Judge erred in not prescribing the condition of
the increased and additional injunction bond mentioned in the said order of the Circuit Court. Code, c. 133, s. 10.
2. The Circuit Judge erred in requiring an additional injunc-
tion bond in the penalty of only $12,000, instead of at least in the penalty of $70,000. Capt. Jones was sure to incur a certain loss of $22,400, and by reason of the injunction was in constant and imminent danger of losing $134,000 by the oil catching fire from lightning or of her wise, and two injunction bonds aggregating only $14,000 were insufficient. 6 W. Va. 539, 527; Code, c. 10, s. 6.
3. The Circuit Judge erred, first, in not "fixing" in his order
the reasonable time within which the additional injunction bond should be given; second, and in not providing that if the new bond should not be given within such time the injunction should, thereupon be dissolved until such bond should be given. 17 W. Va. 396, p't 2 Syll.
4. The Circuii Judge erred in refusing to read, on the hearing
on the 14th day of November, 1893, of the motions to dissolve the injunction in part and entirely, the affidavits which had, been filed by the defendant Jones on or before October 17, 1893. And. Law. Die. 346, under "Depositions"; Black's Law Diet, defining "Affidavit;" High Inj. § 1010; Code, c. 133, s. 3; 2 Bart. Ch'y § 137; 2 Dan. Ch'y (5th Ed) 1598, 1676; 4 Rand. 3, 4; 6 W. Va. 108; 11 W. Va. 477.
5 The Judge of the Circuit Court erred, in not dissolving the injunction as to three tenths of the land in controversy. 12 W. Va. 313; 11 W. Va. 464; 24 W. Va 698, p't l, Syll.; Her. Estop. (2d Ed.) §§ 1069, 1220; 61 Ia. 614; 12 Colo. 434; 102 U. S. 415; 38 N. V. 275.
Mrs. Williamson can not deny the authority of her attorney to bring about the sale. 24 W. Va. 692, p't 2 Syll.; Free. Void. Jud. Sales § 50. 6. Under the, equitable doctrine of representation, by Mrs. Williamson, the life tenant, her sisters and sister's children were constructive parties to the proceedings in which the land was sold and the whole injunction ought to have been dissolved by the Circuit Court.-13 Gratt. 152: 18 Gratt. 683, etc.
7. The injunction should have been dissolved, because it never
ought to have been granted, even if Capt. Jones had been a mere trespasser, he being entirely solvent. 24 W. Ya. 698; 20 W. Ya. 181; 3 Pom. Eq. Jar. § 1348.
8. If Capt. Jones was rightfully in 'possession, and. committed
waste, yet there was no irreparable injury, and he being solvent, pecuniary compensation would have been complete redress and the injunction should, have been refused. 2 Beach Eq. Jur. §§ 728, 720; Kerr Inj. § 199.
9. "An injunction to stay waste is never granted against a de-
fendant in possession and, claiming by title adverse to that of
the plaintiff." 10 Am. & Eng. Ency. L. & E. 823.
a. But there was no waste. 28 W. Ya. 210, 218, 220.
2 Blackst. Com. 281; 6 Barb. 14; 26 Wend. 122;
2 Kill 167; 107 IT. S. 393; 3 Pom. Eq. Jur. § 1348;
1 Washb. Real Property, t. p. 132, 133; 3 Blackst.
10. The necessity for considering the case fully. High Rec. §§ 739, 737, 11, 558, note 3 to § 5, § 3; 4 II. L. Rep. 997 (3 Mac. & G. 379, 411); 2 Bland. 31; 57 PaSt. 91.
11. 'Mrs. Williamson was estopped by accepting the proceeds of sale. 2 Herm. Estop. (2d Ed.) § 1069; 61 la. 644; 87 Ala. 584.
12. This is true even if the court had. had no jurisdiction. 12 Colo. 434; Herm. Estop. (2d Ed.) § 1220; 114 111. 594; 29 Ill. 137; 76 Ind. 452; 64 Wis. 538; 112 Pa. St. 598; 92 N. Y. 181; 80 111. 208; 102 17. 3. 415; 5 Bush. 230; 150 Mass. 353; 35 W. Ya. 375.
13. The payment has the same effect as a conveyance. 28 N.
Y. 275; Preem. Void Jud. Sales § 50; Black's Law Diet, under "Possession 27 W. Va. 428.
15. All the interests in the firm were liable to be sol/i to pay the debts of Thomas Jones. Code of 1849, c. 131, s. 3, 5; Code of 1860, c. 131, s. 3, 5.
16. The burden of proof is on him who asks to be protected as
a. bona fide purchaser for value without notice. 10 Peters (U S.) 211; 104 U. S. 505; 11 Wall. 139. 17. Pendente lite purchasers are not necessary parties. 14
Gratt. 402; 30 Gratt. 515.
18. The remainder people, if they ought to have been represented in the Joshua Russell suit, could only be so as to eight fifteenths of the remainder, after Mrs. Williamson's life estate. There was no merger of the liens against the land. And. Law Dict, under "Merger of Estates 91 N Y. 473; 46 Pa. St. 444; 3 Dak. 21.
a. None of the land was released from these liens by the executor of David Hickman. 91 N. Y. 470 and 476; 2 Pom. Eq. Juris. §§ 788, 798, 791, 799 and 787; 2 Blackst. Com. 1.57; 11 Com. B. N. S. 209, 233; 7 Hurl. & N 507; Cro. Jac. 275; 2 Lom. Dig. s. p. 241, t. p. 405.
19. To adjudge the liens not merged, when they were merged,
would only have been error, and the jurisdiction of the court would, not have been lost. 1 Black. Judg. § 244; 27 Gratt. 624; 22 W. Va. 356, 371, 372.
20. What constitutes jurisdiction over the subject-matter. Preem. Void Jud. Sales § 3; And. Law Diet, under "Jurisdiction;" 18 Wall. 461, 468; 10 Wall. 316, 317 and 321; 1 Black Judg. §§ 240, 241 and 216; 72 N. Y. 217, 218, SylL; 18 S. E. Pep. 577; 18 S. E. Pep. No. 13, p. 456.
21. If a judgment is merely erroneous, the title acquired, by a sale under it is valid and cannot be impeached collaterally. 1 Black Judg. § 218; 37 W. Va. 173; 29 W. Va. 795; 33 W. Va. 553; 20 W. Va. 351; 22 W. Va. 475; 29 W. Va 794; 25 W. Va. 707; 12 W. Va. 1; 27 Gratt, 628; 10 Pet. 449, 474.
22. Where the record shows that a party appeared by attorney, the authority of the attorney can not be questioned in a collateral proceeding. 25W. Va. 701 to 704; 6 Call 83. Statements in the plaintiffs' bill contradicting its exhibits.
23. Under David Hickman's will if Mrs. Williamson's sisters had vested remainders, these vested i emainders were subject to the contingency of being defeated by her leaving by will the land to her sisters' children, and such vested remainders possess the essential qualities of contingent estates. 4 Kent's Com. 204; 35 W. Va. 524. 24. Mrs. Williamson, the life-tenant, was the representative party and there was no necessity for making her sisters or their children parties to the proceedings in which the land was sold, because their interests were all by way of remainder, subject to the contingency of Mrs. Williamson's exercise of her power of appointment. They were constructive parties by Mrs. Williamson, as their representative. 13 Gratt. 164-170; 18 Gratt. 683-695; 89 Va. 789; 80 N. Y. 326.
25. The decree of 1862 did not render the subsequent decrees void. It was not the kind of a final decree which put the parties out of court, or prevented the court from making the subsequent decrees, all of which merely provided for carrying into execution the decree of 1862. 24 W. Ya. 693-695; 25 W. Va. 135; 27 W. Va. 782, 783; 27 W. Va. 597; 36 W. Va. 130, 131.
26. By filing their petition as assignees of the liens the executor of David Hickman and Mrs. Williamson became parties to the consolidated suits to enforce the liens against the land, and, the Circuit Court had. jurisdiction over them, although the jurisdiction was not material to the validity of the sale as to 'her interest in the land. 18 W. Va. 693 (p't of Syll. 5) 694; 23 W. Va. 760; 22 W, Va. 404; 49 Ia. 627; 29 Ohio St. 620.
27. The plaintiffs' bill is not a bill of review. -2 Rob. (Old) Pr. 418; 4 II. & M. 243; 2 11. & M. 591, note; 18 Gratt, 376; 12 W. Va. 394; Code, e. 133, s. 5; 2 Rob. (Old) Pr. 418; 36 W. Va. 210; 8 W. Va 175 (p't 7 Syll.) 187.
28. The 'plaintiffs are estopped by laches and their bill should be dismissed. 91IT. S. 593; 8 I)e G. M. & G. 813.
29. Laches is not limitation, a mere matter of time, but principally a question of the inequity of permitting the claim to be enforced an inequity founded upon some change in the condition or relations of the property or the parties. 145 IJ. S. 372, 373; 91 U. S. 587, 591, 592; 17 Wall. 78; 95 U. S. 157:; 96 U.S. 611; 116 IT. S. 33; 125 IT. S. 90; 134 U. S. 305, 308, 309; 36 Ill. 398; 23 A. P. 452; 25 N". E. Rep. 636; 22 N. Y. 352; 52 N. W. Rep. 638; 85 Cal. 522; 34 W. Va. 217; 23 Pac. Rep. 908 (a judicial sale); 90 Mo. 239 (a mortgage foreclosure Bale); 39 N". J. Eq. 203, 517; 89 Ind. 38; 40 N Y. 181; 72 N. Y. 526; Ambl. 645; 71 N. Y. 333; 78 N. Y. 111; 24 Fed. Rep. 869 (9 Sawyer 0. Ct. 354).
30. Elements of estoppel by conduct. Gross negligence construed in equity to amount to constructive fraud, and the intention that the other party should be deceived and act upon the concealment of material facts is presumed, in estoppel by passive conduct, err when one is silent when he ought to speak. Big. Estop. 452 to 467, page 453, note 1; And..Law Diet, under "Estoppel," ...
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