Springston v. Morris

Decision Date18 November 1899
Citation34 S.E. 766,47 W.Va. 50
PartiesSPRINGSTON et al. v. MORRIS et al.
CourtWest Virginia Supreme Court
Submitted June 17, 1899

Syllabus by the Court.

1. The recitals of a decree which is directly attacked for fraud and surprise in the procurement are not presumed to be absolute verities, but are subject to impeachment.

2. A decree of confirmation founded on a false report of sale made may be impeached by an interested party guiltless of culpable fraud or neglect.

3. A litigant suggesting a diminution of the record, and obtaining from this court a writ of certiorari, must have the alleged omitted portions of the record copied at his own expense, and the certiorari will be regarded as abandoned on his refusal to do so.

Appeal from circuit court, Ritchie county; T. P Jacobs, Judge.

Bill by America J. and J. B. Springston against P. W. Morris, A. J Patton, and B. F. Ayers. Decree for defendants, and plaintiffs appeal. Reversed.

H. C Showalter, for appellants.

B. F Ayers and P. W. Morris, for appellees.

DENT, P.

America J. Springston and J. B. Springston, her husband, filed their original bill, in nature of a bill of review, in the circuit court of Ritchie county against the administrator of the estate of S.D. Webb, deceased, and others, in which it is alleged: That the said America J. Springston is an heir at law and distributee of the estate of said S.D. Webb, deceased. That in said court about the 1st day of May, 1891, one J. R. Sigler filed a general creditors' bill against the three heirs of said Webb to ascertain the debts, and the property liable to the payment of the same, and enforce the sale thereof. The debts and property were ascertained by reference to a commission, and a decree was entered directing a sale of two tracts of land, one containing 183 1/2 acres, and the other 5 acres; and also an order was entered consolidating said cause with another suit instituted by H. E. McGregor, and to enforce a judgment lien against J. V. Webb, who was an heir at law of S.D. Webb, deceased. That the special commissioners, H. Peck and B. F. Ayers, advertised and sold the said 183 1/2 acres of land on the 1st day of the June term of court, 1893 being the 20th day of June), to A. J. Patton and R. W. Morris at the price of $551. The report of sale was returned by one of the special commissioners (Ayers), to which the plaintiffs took exceptions for inadequacy of price, and filed affidavits to sustain the same, showing the land to be worth at least $1,200. Plaintiffs also made an upset bid of $700, and filed a bond to secure the same; and the plaintiffs understood the sale would be set aside, and the cause continued until the next term of court. That with this understanding the plaintiff J. B. Springston, who was present, representing his wife's interest, returned to their home, which was about 16 miles from the court house. That, after court adjourned, plaintiff learned for the first time that on the 29th day of June, 1893, a decree had been entered under a new report of said commissioner, Ayers, in which he reported that the said land was sold on the 20th day of June, 1893, to the same purchasers at the price of $710, confirming such sale, and awarding a writ of possession. The plaintiffs charge that this decree was obtained by collusion and fraud between the commissioner and said purchaser, and without the knowledge or consent of plaintiffs. They also object to a certain sum of $12.34 allowed to J. R. Sigler, which was barred by the statute of limitations, and also to the consolidation of the two causes. As to the consolidation of the two causes, it is hardly necessary to say that this was improper, especially if the costs of both suits were paid out of the estate of S. V. Webb, deceased. Otherwise, it would not prejudice the rights of the plaintiffs. This, however, is not clear from the bill. Such questions, and others not here disposed of, if found necessary, can be brought to the attention of the court when this cause is remanded. The defendant B. F. Ayers, commissioner, and the purchasers, A. J. Patton and P. W. Morris, answered the bill, but wholly disregarded the allegations as to the two reports of sale, the upset bid, and bond filed; but they deny fraud and collusion, and rely on the decree of confirmation and recitals as a vestry that cannot be impeached. The circuit court decided in their favor, and dismissed the bill at plaintiffs' costs. From this decree plaintiffs appeal, and assign as error the dismissal of their bill.

Defendants insist that the plaintiffs have no right to question the recitals of the decree confirming the sale. State v Vest, 21 W.Va. 796. This is not the rule where a decree is directly impeached for fraud or surprise in its procurement. It may be an absolute verity as to what occurred in court and was there recorded, but not as to the recitals therein contained as to what occurred other than in the presence of the court at the time of the entry of the decree. Black, Judgm. § 238. If such rule were to be held good in all cases, no decree could be impeached for fraud or surprise; and yet such is ordinary equity jurisdiction. Bart. Ch. Prac. (2d Ed.) p. 841. The doctrine of the absolute verity of the record must always yield to that higher equitable doctrine that fraud vitiates all things. "It is the just and proper pride of our mature system of equity jurisprudence that fraud vitiates every transaction; and however men may surround it with forms, solemn instruments, proceedings conforming to all the details required in the laws,...

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