Richmond v. Richmond.
| Decision Date | 22 May 1907 |
| Citation | 62 W.Va. 206 |
| Parties | Richmond v. Richmond. |
| Court | West Virginia Supreme Court |
A bill for partition of land by heirs, alleging the death of their father intestate, his seisin of seven-eighths undivided interest therein and the remainder in the defendant, locating and describing the land, making parties and praying for partition, is sufficient upon which to found a decree adjudicating the principles of the cause. (p. 207.)
A decree of partition, whether by default or after full defense, which adjudges title in the parties, the interests they hold and that partition be made in the proportion defined by it, and leaves nothing to be done except for the commissioners appointed, in furtherance of its execution, to divide the land in kind if possible, or if not to report the fact to the court for decree of sale and distribution of the proceeds, adjudicates the principles of the cause and contains every element necessary to render it appealable, (p. 210.)
8. Equity Decree Pro Confesso Vacating.
Such a decree when pro confesso cannot be set aside or avoided by the defendant, after the term at which it is entered, except upon motion in the circuit court or the judge thereof in vacation, under section 5, chapter 134, Code, for errors on the face thereof for which an appellate court could reverse it; or by a bill of review pure and simple, or some pleading capable of performing the function of such a bill. (p. 212.)
4. Same Bill of Review.
A bill of review or petition for rehearing will lie only for error apparent on the face of a decree, for newly discovered matter of defense, or for newly discovered evidence of a defense known and pleaded; and such newly discovered matter or evidence will not, if known beforehand, be available after publication of the decree. (p. 219.)
Appeal from Circuit Court, Raleigh County.
Bill by Hamilton Richmond and others against Alfred Richmond. Decree for defendant, and plaintiffs appeal.
Reversed. Remanded.
Brown, Jackson & Knight and John H.Hatcher, for appellants.
A. D. Preston, A. P. Farley and John W. Ball, for appellees.
William Richmond about 1860 died intestate, seized of a tract of 104 acres of land in Raleigh county, leaving Sarah A. Richmond his widow and eight children as his heirs, to whom said land descended. His son W. L. Richmond subsequently acquired the interests of all said heirs except one sister, whose interest was purchased and has since been held by his brother A. B. Richmond, and thereafter in 1899 himself died intestate still possessed of such interests, survived by Laura A. Richmond, his widow, and four infant children, who at March rules, 1904, instituted this suit against A. B. Richmond for partition of said land.
The bill alleges the death of W. L. Richmond; his seisin of a seven-eighths undivided interest in said land and the remainder in the defendant, purporting to exhibit a plat and description thereof; the qualification of Laura A. Richmond as guardian of said infants; the susceptibility of said land to partition; possession of said land by the defendant and the enjoyment of the rents and profits thereof by him since the death of W. L. Richmond. The prayer of the bill is for partition in kind, or, if the property be not found susceptible thereof, sale and division of the proceeds, for an accounting of the rents and profits and for general relief.
By decree of July 25, 1904, after process was duly served upon the defendant and the cause regularly matured, the court, on the bill taken for confessed, decreed the parties to the suit owners in fee of the land, and a partition thereof in the proportion of ownership set out in the bill. The commissioners appointed were directed to assign to the plaintiffs their shares in one parcel by metes and bounds and the residue to the defendant, and to assign whatever permanent and valuable improvements might be found thereon to those making same without charging either of the coparceners with the value thereof, requiring them if the property be not found susceptible of partition to report such finding together with the facts upon which it was based. August 25, 1904, the commissioners reported their partition in kind, whereby they assigned nine acres with the improvements thereon to the defendant, and the remainder to the plaintiffs.
At the following; term, November 15, 1904, before any action of the court upon said report, the defendant for the iirst time appeared and entered his motion for a continuance, supported by an affidavit alleging that he had acquired his mother's dower in said land; that, by a verbal contract and part payment of the purchase money, he had purchased the entire interest of W. L. Richmond therein and had been put in possession thereof; that, as cause for not having sooner entered his appearance or made defense, he had, notwithstanding diligent search, failed to discover competent evidence of his contract, but had about three weeks prior to entering his appearance discovered material evidence in the nature of a letter from the deceased vendor to his brother Oliver Richmond in which said contract was recognized; but he made no exhibit of the alleged letter, nor filed other papers. In his affidavit he prayed that the decree against him pro confesso be annulled, and the partition, because of alleged inequality therein and insufficient allegation of title by the plaintiffs, be set aside. The court sustained the motion so made, and the cause was continued.
Thereafter, April 7, 1905, the defendant, over the objection of the plaintiffs, was permitted to file a petition praying annulment of the decree of partition, an answer, and sundry depositions on his behalf. In his petition, verified by his oath, after recital of the prior proceedings in the cause, he alleged that he was aggrieved by the decree aforesaid because it decided the respective interests of the plaintiffs and defendant in the land and its susceptibility to partition, decreed him entitled to only one-eighth thereof, and adjudged partition without allegation or proof showing the nature of the interest therein of the plaintiffs or TV. L. Richmond; that he had used due diligence to ascertain the facts material to prove his purchase and did not discover the same until said decree was made, especially the evidence of Oliver Richmond and A. H. Redden; and lie made his answer a part of said petition.
The answer so filed, which was not sworn to, alleged that, after having acquired the dower interest of his mother, he "on the day of, 1899," purchased from the said W. L. Richmond his entire interest in said land for the sum of $700, $200 paid on the day of purchase and the residue covered by his two notes, one for $200 at two years without interest and the other for $300 at five years with interest at three per cent, which notes with interest he alleged he still owed, but was ready and willing to pay; that at the time of his alleged purchase he took and still held possession of the land; and that, by reason of his purchase of the interests of his mother and W. L. Richmond, he had placed valuable improvements thereon worth at least $700. He denies every allegation of the plaintiffs' bill, and prays his answer be treated in the nature of a cross-bill, the contract set up therein be specifically enforced and declared valid and binding on the plaintiffs, and a deed be made him for the land upon payment of the remainder of the purchase money with accrued interest.
The depositions accompanying said petition and answer had in view'the object of supporting the defendant's alleged verbal contract with W. L. Richmond, the main reliance being upon two letters alleged to have been written by W. L. Richmond, November 19 and 21, 1899, to A. H. Redden and Oliver Richmond at Crow, W. Ya., in answer to alleged written proposals to buy the timber on the land in controversy, W. L. Richmond replying that he had sold his interest in the land to A. B. Richmond and directing the parties to see him.
The plaintiffs replied specially to the answer of the defendant, denying his acquirement of his mother's dower, and any purchase by him of the interest of W. L. Richmond or possession thereunder. Laura A. Richmond, in her own right and as guardian of said infants, also answered the petition to rehear the said decree, averring sufficient allegation of title in the bill and that said decree is final, denying the sufficiency as evidence of the letters alleged by the defendant, and pleading the statute of frauds. The infants also answered said petition by their guardian ad litem.
At May rules, 1905, the plaintiffs filed an amended bill setting up and exhibiting the various conveyances whereby W. L. Richmond acquired his title, and alleging the statute of limitations in bar of the dower of defendant's mother; that the defendant's possession of said land before and after the death of W. L. Richmond was that of tenant, he paying the taxes thereon as rent therefor; that his improvements thereon were made by virtue of such tenancy; and that, because of the increase in the value thereof, the defendant had long coveted said land, and had in furtherance of such purpose set up his alleged parol contract. By agreement of parties, the answer to the original bill was so amended as to apply to the amended bill also, and the special replication so amended as to apply to the amended answer.
July 19, 1905, the court, upon full hearing, decreed the defendant not entitled to the relief sought, and dismissed his petition to rehear and his answer in so far as was in the nature of a cross-bill; whereupon he moved for a continuance, which motion was overruled. Two days later the court permitted the defendant to file a bill of review to review the said decree of July 19th, based on an affidavit then filed, though sworn to July 17th, wherein he alleged that, observing a few days...
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