Rogers, et at. v. Rogers.

Decision Date22 December 1892
Citation37 W.Va. 407
PartiesRogers, et at. v. Rogers.
CourtWest Virginia Supreme Court
1. Res Judicata.

An adjudication by a court having jurisdiction of the subjectmatter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto, and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata. Sayre's AdnVr v. harpold, 33 W. Va. 558 (11 S. E. Rep. 16). (p. 416.)

2. Injunction Evidence.

Equity will restrain by injunction, not only the suit at law itself, but also the introduction of evidence in such suit, which, though perhaps legally admissible, is manifestly contrary to right and justice, (p. 420.)

3. Dismission Bar.

Dismissal of a bill in equity upon the merits is a bar to further proceedings in the same court for the same purpose between the same parties; and this, too, though the court may not have gone into the evidence, (p. 418.)

Linn & Hamilton and Flournoy & Price, for appellant cited 26 W. Va. 588; 94 IT. S. 606; 24 How. 833; 5 Wall. 592; 9 Graft. 454; 21 Gratt. 28; 14 W. Va. 406; 6 Cranch. 8; 9 Wheat. 740; 3 Rand. 505; 20 W. Va. 415; 24 W. Va. 763.

J. G. Sculling, for appellees cited Hill. Inj. § 15, p. 249; Id. 1, la, pp. 249-251; 3 Wait. 179; Id. 718; 35 Ga. 216; 32 W. Va 34, p't 1, Syll..

English, Judge:

This was a suit in equity brought in the Circuit Court of Calhoun county for the purpose of retaining and enjoining one John Rogers from using a certain deed from one A. G. Bailey to him and others as evidence in an ejectment suit.

On the 19th day of February, 1890, Cynthia Ann Rogers, James W. Rogers, A. G. Bailey, Sophia P. Dye, and Wellington 3. Rogers, the last named being an infant, who sued by Cynthia Ann Rogers, his next friend, presented their bill, verified by James W. Rogers, one of the plaintiffs, in which they allege, that on the 25th day of March, 1854, J. M. Bennett, commissioner, by deed conveyed to George W. Rogers a certain tract of land situated on Yellow creek, and being then in the county of Gilmer, but now in the county of Calhoun, containing two hundred acres, more or less, a certified copy of which deed was exhibited; that said George W. Rogers took possession of-said tract of land, improved and cultivated the same, lived thereon, had it taxed to himself, and paid the taxes thereon up to the time of his death, which was some time in November, 1885; that the plaintiff Cynthia Ann Rogers is the widow of George W. Rogers, and that the plaintiffs James W. Rogers, Sophia P. Dye, late Rogers, and Wellington J. Rogers are his children and heirs at law, and that these plaintiffs were in possession of the said tract of land at the time of said George W. Rogers's death, and have continued in possession thereof up to the present time; that said George W. Rogers purchased said tract of land some years before the same was conveyed to him by said Commissioner Bennett's deed, and that he all the time, from the time of his purchase thereof until the time of his death, claimed the said land as his own; and that the plaintiffs have always claimed the same as their own from the time of said Rogers's death, until the present time, and that they still claim the same as their own.

They further say, that at the April rules, 1886, of the Circuit Court of Calhoun county, the defendant, John Rogers, filed his bill against these plaintiffs, therein named as defendants, in which lie alleged that the said George W. Rogers had, about the year 1840, purchased of S. G. Stalnaker a tract of two hundred acres of land, and that the same was conveyed to him by J. M. Bennett, commissioner, by deed bearing date on the 25th day of March, 1854, which tract of land the plaintiffs say is the same tract of two hundred acres thereinbefore mentioned; and that said John Rogers further alleged in his said bill that, soon after the said purchase, it was agreed between him and the said George W. Rogers that they should together pay for the said land, and, when paid for, it should become their joint property; and that it was further alleged in said bill that a tract of seventy three, acres of land and another tract of one hundred and eighty seven acres were purchased from Henry 0. Middleton, and that the same were subsequently conveyed to said George W. Rogers by deed bearing date the 29th day of December, 1855; and that said bill further alleged that at the time of the purchase and of the said conveyance it was expressly agreed and understood, between the said John Rogers and the said George W. Rogers, that the said three parcels of land should be the joint property of both of them, and each of them should contribute equally to the payment of the purchase-money thereof; and that it was further alleged in said bill that, in pursuance of said agreement, the said John Rogers contributed and paid large sums of money on account of the purchasemoney for said three parcels, and also cleared, fenced, and brought under cultivation one hundred acres on the seventy three-acre and two hundred-acre parcels; and that it was further alleged in said bill that on or about the day of, 1856, the said John Rogers and the said George W. Rogers agreed upon a partition between them of the said lands, whereby the said John Rogers was to have the aforesaid tract of seventy three acres, and that portion of the two hundred acres lying between Buck Suck and Hopkins runs, that portion and the seventy three acres making, as they supposed, about one hundred acres; and that it was further alleged that, pursuant to said agreement of partition the said John Rogers took immediate possession of that part so allotted to him, and had been in actual possession and control thereof, claiming the same openly and notoriously as his own, during which time he had made permanent, lasting and valuable improvements thereon, such as clearing and fencing, having cleared and fenced at least fifteen acres thereof, and also having kept in order for cultivation that part of said land so allotted to him as had been previously cleared by him; and that it was further alleged in said bill that said John Rogers had paid to said Henry O. Middleton, and furnished to said George W. Rogers to be paid to said Middleton, large sums of money to apply upon the purchase-money of said tracts of seventy three and one hundred and eighty seven acres; and that it was further alleged in said bill that on the 13th day of April, 1858, the said tract of two hundred acres of land was sold by E. F. Stout, sheriff of Gilmer county, under and by virtue of an execution in favor of the commonwealth of Virginia against James F. Norman, sheriff of Calhoun county, and his securities, of whom the said George W. Rogers was one, and that the same was purchased by A. G. Bailey, who was one of the defendants in said bill, to whom said tract of land was conveyed by the said E. F. Stout by deed bearing date on the 14th day of March, 1860; and that it was further alleged in said bill that said Bailey purchased the said tract of two hundred acres at four hundred and five dollars and that he agreed with the said John Rogers and the said George W. Rogers, that, if they would discharge the purchase-money for said tract of land, for which he had executed his bond with John B. Rogers and Dennis Dye, his sureties, he would convey said land to them, and, in accordance with the agreement of said Bailey, the said John Rogers and the said George W. Rogers furnished the said Bailey with the full amount of money necessary to relieve him from the obligation of his said bond, but the said Bailey had not reeonveyed the said tract of land; and that it was further alleged in said bill that said John Rogers contributed and paid, on account of the purchase-money on three parcels of land, to the said Henry O. Middleton, sums of money sufficient to pay all that was due from him on account of the land so allotted to him in the partition aforesaid, and that said George W. Rogers had frequently acknowledged that the plaintiff had paid the full amount due from him on account of the portion of land so assigned to him, and. was entitled to a deed for the same, and that he had frequently prom- isecl to make the said deed to the said John Rogers; and in the prayer to said bill the said John Rogers asked that the said defendant Bailey be required to execute and acknowledge for recordation, and file in said suit, a deed conveying to said John Rogers and the children and heirs at law of the said George W. Rogers, deceased, the said two hundred acres of land, and that a proper conveyance be executed to the said John Rogers for the seventy three acres aforesaid, and for general relief.

They further say that the said A. G. Bailey answered said bill that he was ready and willing to make a deed for the said two hundred acres under the direction of the court in said cause; and the plaintiffs further say that such.proceedings were had in said cause of John Rogers against the plaintiffs, therein named as defendants, that on the 17th day of June, 1887, the said John Rogers's bill was dismissed, and the said John Rogers was decreed to pay the costs of said suit; and the plaintiffs pray that the papers of said chancery cause of John Rogers against the plaintiffs, therein named as defendants, and the proceedings of the court had thereon, be read as part of their bill.

The plaintiffs further allege that in contempt of the adjudication of the court, and in fraud of the rights of the plaintiffs, the said John Rogers after the said adjudication of the court and by...

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