Roberts v. Huntington Development & Gas Co.
| Decision Date | 03 February 1920 |
| Docket Number | 3831. |
| Citation | 102 S.E. 93,85 W.Va. 484 |
| Parties | ROBERTS ET AL. v. HUNTINGTON DEVELOPMENT & GAS CO. |
| Court | West Virginia Supreme Court |
Submitted January 27, 1920.
Syllabus by the Court.
Failure of a defendant to cause his demurrer to a bill to be set down for argument and formally disposed of, his filing an answer and submission of the cause upon the bill, answer, and proof do not work an abandonment or waiver of the demurrer, and he may rely upon it, on an appeal from a decree impliedly overruling it by an award of the relief sought by the bill.
In such case, his right is not varied nor limited by the fact that the demurrer is general in its terms, stating, as ground thereof, only insufficiency of the bill in law.
Nor, to avoid the consequences of a demurrer well taken and so overruled, can the bill be amended in the appellate court or there treated as having been amended.
It is essential, in a bill in equity, to state the claim of title or interest of the defendant in the subject-matter of the bill, whether it be a claim of title to property, an obligation to the plaintiff, or any other essential element of a cause of action against him, and failure to do so constitutes a defect in the bill precluding right to relief thereon, in the absence of a waiver or an amendment curing it.
Though in some instances, a defective bill may be aided by facts disclosed by an answer to it, if no demurrer thereto has been interposed, it is otherwise if the sufficiency of the bill has been challenged by a demurrer. In the latter case, a decree predicated on a fatally defective bill will be reversed, notwithstanding disclosure by an answer of the essential facts omitted.
To make a person a party to a bill in such manner as to require him to answer and make defense thereto, it must allege a cause of action against him, in the body thereof. Naming him as a defendant in the caption of the bill and causing process to be served upon him do not suffice.
The relaxation of technical and formal requirements of a bill in equity, wrought by section 37 of chapter 125 of the Code 1913 (sec. 4791), prescribing a statutory form of bill, does not excuse omission of a sufficient statement of a cause of action against the defendant, in the body or narrative part of the bill.
Appeal from Circuit Court, Putnam County.
Suit by M. T. and J. N. Roberts against the Huntington Development & Gas Company. Decree for plaintiffs, and defendant appeals. Reversed, demurrer sustained, and cause remanded, with directions.
J. S Clark and Henry A. McCarthy, both of Philadelphia, Pa., and Vinson, Thompson, Meek & Renshaw and Fitzpatrick, Campbell, Brown & Davis, all of Huntington, W.Va., for appellant.
Wilkinson & Wilkinson, of Hamlin, for appellees.
The decree in this cause stands upon a bill that does not allege any right, title, interest, or claim thereof in its subject-matter, on the part of the defendant. In the caption thereof, the defendant is named as such, and service of process against it was accepted by its attorney in fact. It appeared and filed a demurrer and an answer, the former of which was not expressly disposed of by any order of the court, but was impliedly overruled by the entry of a final decree in favor of the plaintiffs. On the bill and answer, full proof was taken and the cause submitted as upon its merits. The demurrer was general in its terms, assigning no special grounds, and may not have been insisted upon in the court below, at any stage of the proceedings; but the implied disallowance thereof by the final decree is the ground of an assignment of error in the petition for the appeal and is now earnestly and seriously relied upon in argument.
The purpose of the bill was cancellation of a recorded instrument called a disclaimer and pertaining to the title to all of the minerals in two tracts of land in Putnam county, described therein as containing, respectively, 55 1/2 acres and 35 acres, but actually containing, as the bill alleges, 138 acres. These two tracts were once claimed and perhaps owned by one Dorothy D. S. Billups, who, with her husband and family, resided upon them, or one of them, for a number of years prior to February 24, 1906, on which date she conveyed them to one Geo. Sponaugle, from whom they passed mediately to the plaintiffs, M. T. and J. N. Roberts, subject to such right as the defendant may have in the minerals underlying them, if any, by virtue of the disclaimer assailed by the bill and therein treated as a mere cloud upon the title of the plaintiffs and so denominated.
That instrument bears date May 22, 1891, and purports to be a disclaimer of title to the minerals in said two tracts of land, in favor of the plaintiffs in five actions of ejectment, then pending in the District Court of the United States for the District of West Virginia, for recovery of a large tract of land conveyed by Henry McFarlan and others, trustees of the Guyandotte Land Company, to Gustavius A. Sacchi, which, it recites embraced these two tracts of land then occupied by Chas. M. and Dorothy D. S. Billups, under a claim of title. The disclaimer seems to have been intended as a compromise giving the plaintiffs in the ejectment actions the minerals and leaving the surface to the Billupses, who were only two of a great number of persons whose claims of title were brought into question by said actions. It was never filed in any of the actions, but it purports to have been acknowledged and was recorded, and seems to be relied upon by the defendant as an instrument of conveyance. Denying its efficacy as such, for several reasons, and also execution thereof by Dorothy D. S. Billups, and assailing her signature thereto and the certificate of acknowledgment, in so far as it affects her, on the ground of forgery, the bill prays cancellation thereof as aforesaid.
But nowhere does it positively or expressly allege that the defendant claims any title to the minerals or any interest therein. The only reference to the defendant, found in the body of the bill, reads as follows:
"And that at the time of the recording of said paper writing and for a long time thereafter, there were no changes in the land charged to defendant or its predecessors in title, as regards the lands claimed by it in said county; that no additional minerals were charged to defendant or its predecessors in title at the time said disclaimer was recorded as aforesaid, nor for a long time thereafter upon said land books; and neither was there any deduction from the number of acres of land charged to the defendant's predecessor in title made at the time of said disclaimer, nor for many years thereafter."
This follows an allegation that the land mentioned in the disclaimer has been taxed in its entirety and the taxes paid in the names of the plaintiffs and their predecessors in title, at all times since the formation of the county. In a preceding paragraph, it is charged that the plaintiffs in the ejectment suits had no title, at the date of the disclaimer, by reason of sale of the land as to them, for nonpayment of taxes, in the name of a company under which they claimed. The allegation above quoted pertains only to the taxation of the minerals in question. It does not assert or affirm that the defendant claims title thereto under or from the persons in whose favor the disclaimer was executed, though it may proceed upon the assumption of such a claim or constitute the basis of an inference thereof.
Lack of interest in the subject-matter of a suit at law or in equity, substantial or technical, on the part of any person, precludes right of action against him. He cannot be subjected to annoyance, trouble, expense, and hazard, unless he is interested, obligated, or liable in some way, and there is no presumption that he sustains any such relation to the plaintiff or the subject-matter. On the contrary, there is a presumption that he does not, which the plaintiff must overthrow by allegation and proof. Story, Eq. Pl. § 262; Norris v. Lemen, 28 W.Va. 336; White v. Kennedy's Adm'r, 23 W.Va. 221.
Other requisites are certainty, directness, and positiveness of allegation of every fact essential to the relief...
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