Robinson v. Braiden
| Decision Date | 01 December 1897 |
| Parties | Robinson v. Braiden et al. |
| Court | West Virginia Supreme Court |
B., by his agent, H., without contract in writing-, sold to O. a certain tract of land of one thousand acres, part of the Braiden tract, of five thousand acres, and the sale was not consummated until the land was conveyed; and, before it was sold and conveyed by the one act, it had been surveyed and run oil and located on the ground by definite metes and bounds, but one ofthe lines of definite and fixed location was called the division line by the mistake of the agent, who was ignorant of the true location the such division line. Held, it is not such a mistake as would justify a reformation of the deed so as to extend the land conveyed up to, and then with, said division line; that the land sold was the land as run off and surveyed, which satisfies the calls of the deed, and the calling of one of the lines the division line was a false description which creates no uncertainty and works no injury.
To reform a deed on the ground of mistake, the mistake must be mutual (that is, participated in by both parties), and must be made out, by clear and convincing proof, beyond reasonable controversy; and in no case will it be made to the injury of a bona fide purchaser for value without notice.
A defendant at law, having a legal defense to the action, and a distinct ground for equitable relief against the plaintiff's claim, may bring his suit in equity without waiting for the determination of the action at law, and may, without being compelled to waive his legal defense by confessing judgment, have a hearing in the court of equity on the merits of his case, and a decree for the proper relief.
If it was proper to require a confession of judgment, it should expressly provide that the judgment so confessed was thereafter to be dealt with as the court of equity might direct.
A court of equity, having properly taken jurisdiction for one purpose, may properly retain it for others that may be necessary to the final settlement of all matters involved in the litigation between the parties growing out of, and connected with, the subject-matter of the suit.
If, after the chancery court has taken jurisdiction, and decided the controversy, on its merits, in favor of the defendant, the plaintiff then moves the court to set aside a judgment confessed, because of other defenses, such defenses must be made known to the court, that it may determine whether they are substantial, and not merely pretended; otherwise the judgment ought not to be set aside.
Appeal from Circuit Court, Wetzel County.
Bill by L. G. Robinson against Edward Braiden and others to correct a deed, and to enjoin proceedings in ejectment. From a decree against her, plaintiff appeals.
A jfirmcd.
Hutchinson & Camden, McEldowney & Wiley and H. P, Camden, for appellant.
A. B. Fleming, Thos. P. Jacobs and U. N. Arnett, Jr., for appellees.
On appeal from a final decree entered by the circuit court of Wetzel county on the 28th day of May, 1895, dissolving the injunction to the prosecution of an action of ejectment, and dismissing her bill, and overruling plaintiff's motion to make an order setting aside a confession of judgment required and made by her in the action of ejectment as a condition precedent to granting said injunction. The appellant assigns the following five grounds of error: (1) The said decree is erroneous in dissolving the injunction granted in said cause. (2) It was error to dissolve the injunction, because the evidence sustains the allegations of the bill. (3) The evidence establishes that the mistake alleged by plaintiff to have been made in the calls of her deeds was in fact made, and it was therefore error in the court to refuse to reform said deeds. (4) The court erred in overruling the motion, in writing, made a part of said decree, praying the court to set aside the judgment confessed in the action of ejectment mentioned in said decree, which judgment was confessed upon the order of said court, made upon the law side thereof, as the only condition upon which the court would entertain the bill for injunction in said cause. (5) The court also erred in overruling the motion of the plaintiff to reinstate said action of ejectment on the law side of said court, for trial therein the same as said action stood at the time said injunction was granted.
On the 23d day of March, 1889, the defendants in error Charles E. Wells, John Blackshire, Newton S. Beatty, Amos Prichard, and A. W. Prichard brought their action of ejectment in the circuit court of Wetzel county against plaintiff in error, L. G. Robinson, and others, to recover the possession of a certain tract of land, situated on the waters of Fishing creek and the waters of Middle Island creek, in the county of Wetzel. On the 24th day of September, 1894, when the action of ejectment was about to be called for trial, L. G. Robinson, plaintiff in error, and one of the defendants in the action of ejectment, discovered, as she says, that by an inconsistency and conflict in the calls of her deed on which she relied for her defense, her deed did not, when literally construed, embrace the land intended to be thereby conveyed, and that there was amistake in the calls of her deed, which she desired a court of equity to correct before going into the trial of the action of ejectment. So, accordingly, on the 24th day of September, 1894, she instituted this suit in equity to correct and reform her deed, and to enjoin the plaintiffs in ejectment from proceeding therein against her will to the determination of her chancery cause; but the court refused to grant the injunction prayed for until and unless the plaintiff in error confessed judgment in the action of ejectment, which was accordingly done on the same day. The chancery cause was then matured for hearing, and on the 28th day of May, 1895, a final decree was entered, in which it was considered by the court that the plaintiff was not entitled to the relief prayed for, and thereupon the injunction was dissolved and the bill dismissed. But, before the decree was entered so as to become final, she moved the court to set aside the judgment confessed in the action of ejectment, and to cause to be reinstated on the commonlaw docket the action of ejectment. But the court overruled her motion, and, on motion of the plaintiffs in the action of ejectment, gave them leave to sue out a writ of possession for said premises.
The facts on which the points of law here involved mainly turn are, for the most part, documentary. The commonwealth of Virginia, by patent dated on May 25, 1797, granted to Archibald Woods a tract of land calling to contain six thousand acres (but afterwards found to contain some ten thousand acres), situate then in Ohio county, but now in the county of Wetzel. His brother, Robert Woods, was the equitable owner of an undivided half; and Robert having died, leaving a will, Archibald and the executors of Robert on the 19th day of July, 1832, executed an agreement and deed of partition on this tract, among many others. One of the corners was a chestnut oak and a white oak on the top of a ridge. This tract was to be divided by a sight line beginning at this corner, and running through the tract so as to so intersect the third line from this corner as to divide it into two equal parts; and the east half was thereby set apart and allotted to the executors of Robert being the only land with which this suit has anything to do. About the year 1835, John Talkington (a witness who still lives to testify) was employed to run and mark this division line, which he caused to be run, marking the line himself. Not being able to find the chestnut oak and the white oak, he marked as the beginning corner two poplars and a lyn outside of the Woods survey; to the north, ran and marked a line S. 6 1/4E., which entered the Woods survey 32 poles to the west of the true corner, the chestnut oak and the white oak, and ran on that course until he struck the third line, thus cutting the survey in two. This eastern end was thenceforth called for as containing five thousand acres. By deed dated February 15, 1852, Beverly M. Eoff and Alexander Q. Woods, who had been appointed administrators de bonis non, with the will annexed, of Robert Woods, deceased, sold and conveyed said east end to Isaac Hoge and James Musgrave. By deed dated 13th day of July, 1859, these administrators, in order to correct an inaccuracy in the description and boundary of the land in the first deed, executed a second deed to these two grantees, by which they conveyed to them said eastern half according-to the Talking-ton division line, which thenceforward appears to n.ave been adopted by all interested as the true division line. By various mesne conveyances, of no significance here, the title of this eastern half of live thousand acres became vested in P. D. Gambrill by deed dated December 13, 1864, running with the Talkington line, elsewhere called the "6 1/4-deg. line"; and by deed dated the 17th day of September, 1867, Gambrill sold and conveyed the same to Edward Braiden, describing-it as being the same described by the deed of Isaac Hoge and James Musgrave to him. It seems to be known in this record as the "Braiden Tract," of live thousand acres. And from Braiden as a common source, the plaintiffs and defendants derive title to their respective parts. By deed dated the 19th day of June, 1875, Braiden sold a part of the five thousand acre tract of one thousand acres, known as "Lot No. 1," to John Orr; and by deed dated June 24, 1875, he conveyed to John Orr an adjoining parcel of one thousand acres,...
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