Shonk v. Knight

• Decision Date: 06 April 1878
• Citation: 12 W.Va. 667
• Parties: Shonk v. Knight, et al., trustees.
• Court: West Virginia Supreme Court

12 W.Va. 667

Shonk

v.Knight, et al., trustees.

Supreme Court of Appeals of West Virginia.

Decided April 6, 1878.

1. An injunction ought not to be awarded, which is verified only by the affidavit of an agent of the plaintiff, "that the facts and allegations contained in the bill, so far as stated therein on his own knowledge are true, and so far as stated on information, he believes them to be true." There being in the bill no facts alleged of which this agent had any personal knowledge so far as appears on the face of the bill, and no exhibits sustaining the material allegations of the bill.

2. An injunction to prevent the sale by a trustee of a tract of land conveyed by a deed of trust, ought not to be awarded where the title to the land ottered for sale is undisputed and also the debt for the payment of which it is about to be sold, merely because the debtor claims that he is entitled to a conveyance from the creditor of a parcel of land adjoining. To entitle him to an injunction in such case he must further allege that the land offered for sale, will not bring a fair price unless sold in connection with the parcel of land adjoining claimed by. him and also that he is unable to pay the debt and thus prevent the sale.

3. As a general rule, if the answer to a bill of injunction fully, fairly, plainly, distinctly and positively denies the material allegations in the bill and no proof is taken to sustain the bill, the court ought on the coming in of the answer to dissolve the injunction. There are some exceptions to this general rule, but it ought to be followed when great injury would result to the defendant if the injunction was continued till the hearing aud no serious loss would be sustained by the plaintiff if it were dissolved, even if the cause should be decided in his favor on the hearing.

4. As a general rule an injunction ought not to be dissolved till

all the defendants implicated in the charges made by the bill have answered, but there are well established exceptions to this rule. 1st. The plaintiff must have been diligent in taking the necessary steps to procure the answers of all the defendants. 2d. Answers are required only of those defendants upon whom rests the gravamen of the charges in the bill, and lastly no answer need be filed if the injunction on the face of the bill ought not to have been awarded.

5. If a bill on its face shows that the plaintiff would be entitled

to relief, if he had set out his title to the subject of controversy which he had apparently failed to do accidentally, he ought to be permitted to amend his bill before it is dismissed on demurrer.

An appeal from a decree of the circuit court of Kanawha county, rendered on the 18th day of December, 1876, in a cause in chancery, in which John J. Shonk was plaintiff, and Edward B. Knight and William S. Laidley, trustees, were defendants, granted on petition of John J. Shonk.

Hon. Joseph Smith, Judge of the seventh judicial circuit, rendered the decree complained of.

Green, President, furnishes the following statement of the case:

On January 24, 1876, John J. Shonk filed his bill in the circuit court of Kanawha county, against William S. Laidley and Edward B. Knight, trustees, and James H. Brown and John T. Cowen, trustees, and in their own right, the heirs of William P. Wyatt, naming them, the widow and heirs of J. Fuller Reynolds, naming them, the Cabin Creek Kanawha Coal Company, the Williams Coal Company, Benjamin H. Smith, Isaac K. Smith, Benjamin P. Morris and wife, James N. Morris and wife, Charles B. Morris and wife, John Echols, H. M. Bell and R. H. Catlett. The bill alleges, that Shonk and Reynolds (then deceased) bought five undivided ninth parts of a certain tract of land in said county on the waters of Cabin creek and Joe's creek, containing nine thousand five hundred and eighty acres, more or less, being the residue of the John Greene patent of sixteen thousand acres, deducting the portions conveyed by Newton Gardner, deceased. This purchase was made of John Echols, H. M. Bell and R. H. Catlett, and the deed therefor was made March 16, 1872; and at the same time they executed a deed of trust on said land to Wm. S. Laidley and Edward B. Knight, trustees, to secure the deferred payments, which deeds were at once duly recorded, and authenticated copies of them are filed with the bill. This land had, on March 4, 1872, been conveyed to Echols, Bell and Catlett by Brown and Cowan, trustees, and individually, and by all the other defendants other than the widow and heirs of Reynolds, and said companies. This deed was duly recorded and an authenticated copy of it is filed with the bill. All the deeds were delivered to the parties entitled to them at the same time, about March 10, 1872. The bill then alleges, that the legal title and possession of this land was then vested in the Williams Coal Company of Kanawha, and the Cabin Creek Kanawha Coal Company.

The deed from Brown and Cowen, trustees, and others to Echols, Bell and Catlett, conveys six thousand two hundred and ninety-two ninety-five hundred and eightieth parts of the tract of land situate in said county on the waters of Cabin creek and Joe's creek, containing nine thousand five hundred and eighty acres, more or less, being the residue of the John Greene patent of sixteen thousand acres, deducting the portions sold and conveyed by Newton Gardner, deceased, by deeds of record, and it sets out the boundaries of the land thereby conveyed, by metes and bounds. And there is in the deed a warranty of title the character of which need not be stated, except that it does not extend beyond a warranty of said interest in the tract, and that the entire quantity of land in the tract to which their title is warranted to be good is not less than nine thousand five hundred and eighty acres. And "this deed on its face states that the grantors other than Brown and Cowen, trustees, had by a deed to said trustees, dated September 10, 1867, and duly recorded, conveyed said land to said trustees. The deed of Echols Bell and Catlett, conveys to Shonk and Reynolds fiveninths of this land and describes it in the same words in which the deed to them describes it and the warranty has a like qualification as the warranty to them. The deed of trust executed by Shonk and Reynolds to Laidley and Knight, trustees, also describes the tract in the same terms, except that instead of setting forth the boundaries, it refers to the deed from Echols, Bell and Catlett to Shonk and Reynolds, fox the boundaries and adds, "which deed is hereby made a part of this deed for the purpose of identifying and describing said tract of land."

The bill further alleges, that during the negotiations which led to the making of these several deeds, the vendor in the first deed exhibited a plat of this land, showing the true and correct boundaries and abuttals of the residue of the Greene patent of sixteen thousand acres after deducting the parts sold by Newton Gardner, deceased, and the purchase was made both by Echols, Bell and Catlett, and by Shonk and Reynolds, under the belief that this map showed the true boundaries of this land. What purports to be a copy of this map is filed with the bill and also what purports to be a plat of the land from the courses and distances contained in these deeds. A comparison of the two maps shows that the map of the land as alleged to have been exhibited when the sale was made, includes all the land embraced by the courses and distances of the deeds and also a piece of land triangular in shape, except that the base of the triangle is a broken line, consisting of eight short lines whose courses are nearly the same. This triangle contains between four and five hundred acres of land, which the bill alleges was excluded or omitted from the metes and bounds in the deed, by fraud or mistake, and this was not discovered till afterwards, and that this piece of land so excluded was of peculiar and supreme value to the whole tract by reason of its position.

The bill alleges that James H. Brown the holder of one of the bonds secured by this deed of trust, had ordered the sale of this land to be made by the trustees, Laidley and Knight, and they had accordingly advertised the same. The advertisement is filed with the bill and the description of the land is that given in the deed of trust under which the sale was to be made. The bill alleges that it would be unjust and inequitable to make such sale till the deeds were corrected and reformed so as to correspond with the actual sale. And it avers that whenever they are corrected the plaintiff will promptly pay the balance of the purchase money, and the defendants have been so informed.

The bill prays that all the defendants be required to answer the bill; that the trustee be enjoined from making this sale till the further order of the court; that the deeds aforesaid be reformed and corrected, so as to set forth truly and correctly the contract of the parties; and for general relief.

The injunction was awarded as prayed for. The summons was issued only against Laidley and Knight, trustees, and James H. Brown and T. Cowen, trustees, and was returned as to Cowen, that he was not found and was no inhabitant of the county, and executed as to the others; no other summons was issued. An answer however was filed by Benj. H. Smith and Isaac 1ST. Smith, the heirs of Matthew Wyatt and the Morrises. And James H. Brown, one of the trustees, filed his separate answer. This answer states that the land in controversy is a part of the Greene survey of sixteen thousand acres which was purchased by Newton Gardner, who conveyed to sundry persons portions of this sixteen thousand acres, leaving by the face of the deeds nine thousand five hundred and eighty acres unsold, which amount was charged for taxation on the commissioner's books to the heirs of Newton Gardner, and being returned delinquent for non-payment of taxes was sold by the sheriff of Kanawha county and...