Rosier v. McDaniel
| Decision Date | 08 February 1944 |
| Docket Number | 9488. |
| Citation | 28 S.E.2d 908,126 W.Va. 434 |
| Parties | ROSIER v. McDANIEL. |
| Court | West Virginia Supreme Court |
[Copyrighted Material Omitted]
Charles C. Scott and Haymond Maxwell, both of Clarksburg, for appellant.
Powell Clifford & Jones, of Clarksburg, for appellee.
ROSE President.
From a final decree of the Circuit Court of Harrison County in favor of John B. Rosier and against Minnie G. McDaniel this appeal was awarded on the petition of the latter.
By deed dated April 29, 1925, John B. Rosier and wife conveyed to Minnie G. McDaniel Lots 7, 8 and 9 out of land of the grantor situate at Hepzibah in Harrison County on which there was a substantial dwelling. The purchase price was $3,500, of which $500 was paid in cash and the residue, secured by a vendor's lien, was to be paid in ten equal annual installments of $300 each, with interest payable annually for which payments joint and several negotiable notes were executed by Mrs. McDaniel and her husband, A. G. McDaniel. This deed contained covenants of general warranty and the following provision:
"It is understood and agreed that this conveyance is made subject to the rights vested in John M. Camden by deed made to him by Boyd M. Allen, dated November 1, 1889, and recorded in the office aforesaid in Deed Book No. 80 page 180, and also subject to the rights vested in the Hope Naturan Gas Company by a certain lease for oil and gas purposes made to the said Company by James F. Allen dated August 20th, 1904, and recorded in the office aforesaid in Deed Book No. 149, page 270."
The first two purchase money notes were paid in due course; but, about the time of the maturity of the third, there developed certain sinking of a street adjoining said lots, and some breaking and slipping of the lots themselves, resulting in the destruction of a water well thereon and some breaking and distortion of the house. The defendant concluded that these land subsidences were caused by the removal of coal from beneath the lots and adjoining land, and discontinued payments of purchase money and taxes on the lots, which were sold in 1930 for 1928 taxes, and purchased by one Martin. The purchaser assigned to Rosier, who obtained and recorded a tax deed for the lots dated November 26, 1932.
Various conferences seem to have taken place between Rosier, on the one hand, and Mrs. McDaniel and her husband, on the other, the latter two claiming damages for the injuries to their property by the subsidence of the lots and the adjoining land and streets. Under date of October 5, 1933, possibly as a result of these negotiations, Rosier executed a written contract of sale of the same lots and also Lots 4, 5, and 6, to Raymond P. McDaniel, a son of Minnie G. McDaniel and A. G. McDaniel, who was then and still is a member of the United States Naval Forces, for a consideration of $2,400, being the exact balance unpaid under the deed to Mrs. McDaniel. This purchase price was to bear interest from date payable semi-annually, and to be paid in monthly installments of $15 each. The contract bears the name of Raymond P. McDaniel signed thereto by his father, A. G. McDaniel. Apparently he knew nothing of the transaction.
The McDaniel family continued to occupy the property and monthly installments under this contract were paid to April, 1941. In November of that year Rosier instituted before a justice of the peace an action of unlawful detainer against Minnie G. McDaniel and Raymond McDaniel for recovery of possession of the lots, claiming that the contract with Raymond by its express terms, had become null and void by default in the payment of six successive monthly installments therein provided. This action was dismissed when Rosier, upon consulting an attorney, was advised that he had no legal title to the three lots conveyed to Mrs. McDaniel, but that his tax deed was in legal effect a mere redemption from the tax sale, by reason of the fact that he, the grantee therein, was the holder of a lien against the lots and thus had the legal right to redeem the same from the sale for taxes. He thereupon instituted the present suit.
The bill of complaint is brief and simple. It makes only Minnie G. McDaniel a party defendant and seeks nothing but the enforcement of the vendor's lien reserved in her deed, claiming an aggregate of $2483.54 to be due. The bill recites, however, the existence of the tax deed and alleges that it operated merely as a redemption from the tax sale.
The court on June 6, 1942, overruled a written demurrer to the bill, which action is not complained of. By the same order the court referred the cause to a commissioner in chancery to take and report an account showing all real estate owned by the defendant, the liens thereon, whether such real estate would in five years rent for a sufficient sum to discharge the liens, and such other matters as the parties or the commissioner might require, and required the commissioner to give the notice to creditors required by Code, 56-7-3.
No time was given by the decree to the defendant for answering. On June 12, however, the defendant by counsel moved the court for leave to file her answer, and, without any request or showing therefor, was granted fifteen days from that date within which to file her answer, and the commissioner was directed to suspend proceedings under the decree of reference until August 2. On August 3 the defendant filed in open court her answer and cross-bill, the order reciting that this pleading had been filed or lodged in the office of the clerk of the court on June 23. The plaintiff filed thereto a written replication.
The commissioner executed the decree of reference and reported a balance of $1,831.03 due under the vendor's lien. Exceptions to this report were overruled and a decree of sale entered accordingly.
Five days after the decree of sale, Raymond P. McDaniel, represented by the same counsel as the defendant, appeared and tendered a petition which he asked to be treated as an answer and cross-bill in this cause, which, upon objection by the plaintiff, was rejected by the court.
The decree of reference and the proceedings thereunder were irregular and, in the aggregate, prejudicial to the appellant. The reference, if it had been proper, was prematurely made. Defendants had by statute fifteen days from the overruling of the demurrer within which to answer. Code, 56-4-56. No decree of reference could be made during that time. Billingslea v. Manear, 47 W.Va. 785, 35 S.E. 847; Goff v. McBee, 47 W.Va. 153, 34 S.E. 745; Gist v. Virginian R. Co., 79 W.Va. 167, 90 S.E. 554; Moreland v. Metz, 24 W.Va. 119, 49 Am.Rep. 246. Not until the expiration of the period given a defendant for answering, by statute or by the court, could the judge, in any suit, know what issues might be raised, or what question might arise for solution, before the cause could be referred to a commissioner for any purpose. If no answer should come in within the fifteen days, by statute the plaintiff would have been entitled to the relief sought in his bill. Code, 56-4-56. He would have had only to produce his notes as required by Code, 56-7-6, to obtain his decree. No convention of creditors is necessary or proper in a vendor's lien suit. Hart v. Larkin, 66 W.Va. 227, 66 S.E. 331; McClaugherty v. Croft, 43 W.Va. 270, 27 S.E. 246; Long v. Perine, 41 W.Va. 314, 23 S.E. 611; Neeley v. Ruleys, 26 W.Va.
686; Cunningham v. Hedrick, 23 W.Va. 579. An improper reference to a commissioner in such suit, is not only superfluous, but injurious as subjecting the defendant to unnecessary costs in the execution of the decree, interest occasioned by the delay, possible additional taxes and other expense and trouble incident to prolonged litigation.
But the defendant did in fact answer. This answer raised by way of defense very substantial and intricate questions of law and fact, which could only be determined by the court, not by the commissioner. These included a claim for damages for fraud in procuring defendant to purchase the land; an alleged settlement between the parties by which the plaintiff agreed to repair the well and to abate $1,000 from the purchase price; certain clouds on the title to her lots, which she asks to have removed; an alleged novation of the deed and contract, by which the lots were to be conveyed to a third party to be named by the defendant; a denial of any balance due the plaintiff, and suggested other parties alleged to be necessary. All these defenses plaintiff denied by replication. The court made no pretense of referring these new issues to the commissioner. He could not have done so had he so attempted. It does not lie in the power of the judge of a court of equity either to ignore, or to delegate to a commissioner the primary duty of deciding, the fundamental issues in a cause. Neely v. Jones, 16 W.Va. 625, 37 Am.Rep. 794; Goff v. McBee, 47 W.Va. 153, 34 S.E 745; Currence v. Currence, 123 W.Va. 599, 18 S.E.2d 656. "When the answer to the bill fully denies all the material facts alleged as the basis for such lien, it is reversible error for the court to decree a reference to a commissioner to enable plaintiff to make out his case." Gist v. Virginian R. Co., 79 W.Va. 167, 90 S.E. 554, 555. See Blumberg Bros. Co. v. King, 98 W.Va. 275, 127 S.E. 47; Mathieson Alkali Works v. Virginia Banner Coal Corporation, 140 Va. 89, 124 S.E. 470. Nevertheless, with none of these basic questions determined, the commissioner proceeded with the execution of the decree of reference, heard evidence on all issues and reported merely that the plaintiff had the only lien against the lots in question in the amount of $1,831.03, and that defendant's claim of damages for fraud was not sustained. This report the court confirmed, and entered a...
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