Simmons v. Simmons
| Decision Date | 21 October 1919 |
| Citation | 100 S.E. 743,85 W.Va. 25 |
| Parties | SIMMONS ET AL. v. SIMMONS ET AL. |
| Court | West Virginia Supreme Court |
Submitted October 14, 1919.
Syllabus by the Court.
In a suit to contest a will and upon an issue devisavit vel non the jurisdiction of the court ends with the decree adjudicating that issue.
Where the issue in such suit upon the petition of guardians for infants, filed pursuant to section 5 of chapter 108 of the Code (sec. 4504), is submitted to arbitration, the arbitrators have no authority or jurisdiction to go outside of the issue submitted, and their award beyond such issue and any decree confirming the same are absolutely void and of no effect.
The defense of innocent purchaser without notice is an affirmative one and to be availing must be pleaded.
Generally whatever is sufficient on the face of the record of title to land to direct a purchaser's attention to the prior rights and equities of third persons will put him upon an inquiry and will amount to notice to him. He is bound to take notice of everything disclosed by the record.
To be protected as an innocent purchaser from one who has purchased under a judicial decree and before appeal or suit to avoid the decree, upon principles enunciated in Perkins v Pfalzgraff, 60 W.Va. 121, 53 S.E. 913, and Dunfee v Childs, 59 W.Va. 225, 53 S.E. 209, the court pronouncing the decree must have the capacity, and by proper pleadings and proof must have acquired jurisdiction, to pronounce the decree.
To make a compromise by guardians effective against their wards in any cas e the judicial sanction thereof must be upon a real and not a perfunctory hearing. If such hearing is only formal and intended solely to employ the functions of the court to give validity to the prior agreement, it may be set aside.
In a suit to set aside an award against infants made in suits contesting the validity of a will and deed, purporting to have been had pursuant to chapter 108 of the Code (secs 4500-4504), and the decree affirming such award, it is error on setting aside such award and decree, in advance of an adjudication of the issues involved in the contest suits to finally adjudicate the rights of the parties and refer the cause to a commissioner for a settlement of the rents, issues and profits to which plaintiffs may be entitled. Such reference is premature.
Additional Syllabus by Editorial Staff.
In suit to set aside an award against infants, made in suits contesting the validity of a will and deed, purporting to have been had pursuant to Code, c. 108 (secs. 4500-4504), and the decree affirming such award, decree setting aside the award and the decree affirming it without prejudice to defendants, plaintiffs in the original suits, to proceed as advised to attack the will and deed, effected a reinstatement of the original causes on the docket for trial.
Upon a petition pursuant to Code, c. 108, § 5 (sec. 4504), the result of favorable action would submit the suit or controversy to arbitration, and the judgment or decree on the award necessarily determines such suit or controversy, and should be so construed.
In suit to set aside an award against infants, made in suits contesting the validity of a will and deed, purporting to have been had pursuant to Code, c. 108 (secs. 4500-4504), and the decree affirming such an award, the court, on finding for plaintiffs, properly gave them a writ of possession in advance of the adjudication of their rights upon the issue devisavit vel non involved in the original suits.
In such suit, the rights of the plaintiffs could not be in any way conditioned upon repayment of the amount paid by the beneficiaries on the award, of which neither the infants nor their guardians received any part, where there was no request by defendants herein for such order.
In such suit, wherein defendants made no claim for improvements or taxes paid, there was no error in not decreeing permanent improvements, in view of Code, c. 90, § 32 (sec. 4100).
In such suit, where all the persons who were parties to the arbitration suit were parties to the bills and cross-bill herein, and all persons claiming under the award and decree were properly impleaded and brought into the suit, there was no defect of parties.
In the case of wills, the judgment of probate has the force of an adjudication in rem, and is conclusive until set aside in the manner provided by law, and it cannot be collaterally attacked.
Appeal from Circuit Court, Roane County.
Suit by Earle Simmons against W. S. Simmons, Susan Simmons (now Rader), and Lula A. Simmons, with answer and cross-bill by them against W. S. Simmons and others, interpleaded defendants. Decree for plaintiff and defendants Susan Rader and Lula A. Simmons, referring cause to a commissioner for an accounting of rents and profits, and defendants W. S. Simmons and others appeal. Reversed as to the reference, and otherwise affirmed.
Geo. F. Cunningham, of Spencer, Warren Miller, of Ripley, Chas. E. Hogg, of Point Pleasant, S. M. Williamson, of Waynesburg, Pa., and Pendleton, Mathews & Bell, of Point Pleasant, for appellants.
Ryan & Boggess and Harper & Baker, all of Spencer, Smith D. Turner, of Parkersburg, and Geo. E. Price, of Charleston, for appellees.
MILLER, P.
The common object of the original and two amended and supplemental bills filed by the plaintiff Earle Simmons and of the answer and cross-bill filed for and on behalf of Susan Simmons and Lula A. Simmons against the defendants interpleaded therein, was to show cause against and have removed as clouds upon their title to the home farm of the late James M. Simmons, their father, given them by his will, two certain decrees made on April 3, 1902, in a certain suit or proceeding purporting to have been begun and prosecuted by petition on behalf of the plaintiff Earle Simmons by H. D. Wells, his guardian, and on behalf of the respondents and cross-bill plaintiffs by P. A. Tallman, their guardian, and by J. P. Thomasson, committee for their mother Minnie B. Simmons, then an insane person, in the circuit court of Roane county, and also certain deeds and leases depending thereon and under which other of the defendants impleaded claimed right and title to said farm or parts thereof. Said petition named no parties defendants, but in the decrees made thereon the case is styled in the name of petitioners versus Z. T. Simmons, W. S. Simmons, M. F. Simmons, F. M. Simmons, G. B. Simmons, T. R. Simmons, Virena Vandevender, Mary E. Ferrell, and said Minnie B. Simmons, an insane person, and Lula A. Simmons, Susan Simmons and Earle Simmons, infants, defendants.
The petition showed that the adults named therein, except the said Minnie B. Simmons, were plaintiffs and contestants, and the said Minnie B. Simmons, widow, and petitioners were defendants and contestees in two certain suits then pending in the said circuit court, the object of one of which suits was to set aside the will, the other the deed of said James M. Simmons, both instruments having been made and executed by the testator and grantor on the same day. The petition also showed that in the suit to contest the will of the testator an issue devisavit vel non had been awarded and that issue had also been made up in the other suit to set aside said deed.
By the first of the decrees made on the petition it was adjudged, ordered and decreed that all the matters involved in said two suits be and the same were thereby referred to the consideration and arbitration of the three arbitrators named therein who were directed to hear proof and consider the pleadings and evidence taken in said two suits and adjust the matters in difference then between the parties thereto and make report of their proceedings thereunder to the court.
The second of said decrees, confirming the report of said arbitrators, copied bodily into the decree and in strict accordance therewith, was that the said Z. T. Simmons and others, the contestants, do take and hold free of all claims of the said Minnie B. Simmons, Susan Simmons, Lula A. Simmons and Earle Simmons the tract of land lying in Smithfield district known as the James M. Simmons home farm and containing about one thousand acres; that they also take and hold the farm known as the Flat Fork Farm described in said will and deed; and that they do within thirty days from the date of the decree pay to J. B. Thomasson, committee of the said Minnie B. Simmons, the sum of three thousand dollars for the use and benefit of his insane ward, and that they do release all other rights, devises and bequests given to each of them under said will, and that in all other regards the said will and deed do stand and remain in full force and effect.
The decrees and proceedings sought to be set aside by the present suit purport to have been had and taken pursuant to section 5 of chapter 108 of the Code (sec. 4504), relating to arbitration. The present bills and cross-bill are predicated on the rights reserved in section 4 of said chapter (sec 4503) to set aside awards for errors apparent or when procured by corruption or other undue means, or by mistake, or when there has been misbehavior in the arbitrators and the power of courts of equity over awards generally reserved by said section, and also upon the rights given infants by section 7 of chapter 132 of the Code (sec. 4941), within six months after attaining the age of twenty-one years to show cause against said decrees regardless of the provisions of section 4 thereof, which latter section gives the same validity to decrees executed pursuant to judicial decrees and orders on behalf of others as if executed by the parties themselves. So there can be no doubt of the right of plaintiffs to maintain this suit and obtain relief if...
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