Stewart v. Tennant

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER
Citation44 S.E. 223,52 W.Va. 559
PartiesSTEWART. v. TENNANT et al.
Decision Date28 March 1903

44 S.E. 223
52 W.Va. 559

TENNANT et al.

Supreme Court of Appeals of West Virginia.

March 28, 1903.


1. An infant, under the statute allowing him to show cause against a decree, may do so by original bill, although the cause alleged is error of law apparent on the face of the decree.

2. When such bill seeks relief, by way of cancellation of a deed, and an accounting for waste, rents, issues, and profits consequent upon the reversal of the decree, and fully seta forth the defects in the decree, and incorporates the pleadings, decrees, and orders as exhibits, the suit is not collateral, but directly attacks the erroneous decree, and the record of the cause in which it was pronounced may be introduced upon the hearing as evidence.

3. Where the allegations of a hill are sufficient to support a decree, and there is a prayer for general relief, and such decree is pronounced, it will stand, although not specifically prayed for in the bill.

¶ 3. See Equity, vol. 19, Cent Dig. § 1009.

4. Where an infant proceeds promptly, upon attaining his majority, to show cause against a decree, the defense of laches cannot be made.

5. Before there can be a sale of land in a partition suit, it must be ascertained and determined that partition thereof cannot conveniently be made, and the usual and preferable mode of establishing such fact is by a report of commissioners, so stating, and setting forth the facts from which it appears.

6. Where in a partition suit there is an allotment of part of the land and sale of the residue, the allotted part and the proceeds of the part sold must each be divided among all the co-tenants of the entire subject, in the absence of a consent decree, when adults only are interested, and it is error to sell the undivided interests of infants in such suit when there is no proceeding therein by their guardian for such sale in the manner prescribed therefor by law.

7. A party to a suit, moving the sale therein of an infant's real estate, and purchasing the same under a decree therein made, is not protected by section 8 of chapter 132 of the Code of 1899, and, on reversal of the decree, his title falls.

8. A decree entered in a cause in which all interested parties are before the court, and upon a bill upon which such decree would have been proper under certain conditions which might have been shown by proof, upon the allegations of the bill, to exist, is not void for want of jurisdiction, however erroneous it may be.

9. The act passed by the Legislature March 25, 1873, entitled "An act concerning the limitation of actions in certain cases, " is void for want of expression of its object in the title thereof, as required by the first clause of section 30 of article 6 of the Constitution, providing that, "No act hereafter passed, shall embrace more than one object, and that shall be expressed in its title."

10. If said act could be held free from the fatal defect of unconstitutionality, it would be within the repealing clause of the act of March 16, 1882, constituting chapter 104 of the Code of 1899, and not available as a defense to any action or suit.

11. Tenants in common committing waste against a co-tenant are wrongdoers, and may be sued on account thereof jointly or separately, and, when sued jointly, it is not error to dismiss the cause as to one of them, on motion of the plaintiff, and over the objection of the other.

12. Where, before assignment of dower, one claiming by purchase from certain heirs and the widow drills oil wells upon the land and extracts large quantities of oil therefrom, without having obtained the consent of his co-tenant to such development, and such nonconsenting co-tenant brings his suit for an accounting, it is error to decree to him his entire interest in the oil produced and thereafter to be produced, free from any charge on account of the dower interest.

13. In such case the holder of the dower interest is entitled to the interest on one-third of the proceeds of the oil going to the nonconsent-ing co-tenant until the death of the dowress, and until that date the fund upon which such interest is paid remains under the control of the court through its general receiver.

14. An infant, whose land has been sold under an erroneous decree, and the purchase money paid to his guardian, and who sues for reversal of the decree and cancellation of the deed, must tender with his bill the purchase money, or offer therein to repay it.

(Syllabus by the Court.)

Appeal from Circuit Court, Tyler County; M. H. Willis, Judge.

Bill by Louis Stewart against J. S. Tennant and others. Decree for plaintiff, and defendants appeal. Reversed.

Fleming & Fleming, J. V. Blair, T. P. Jacobs, and Riggle & Engle, for appellants.

Pugh & Pugh and J. H. Strickling, for appellee.

POFFENBARGER, J. The South Penn Oil Company and Jacob S. Tennant complain, on appeal, of certain decrees made by the circuit court of Tyler county upon a bill filed against them and others by Louis Stewart for relief from certain alleged erroneous decrees pronounced by the same court in a former chancery suit, under which Tennant and one Cassie A. Tennant, by judicial sale,

[44 S.E. 224]

acquired the title, as they claim, to a certain tract of land, and afterwards leased the same for oil and gas purposes to said South Penn Oil Company, and for an accounting, on the part of said defendant, for one-twelfth of the oil taken from said land. The case is substantially as follows: James Stewart, being the owner of said tract of land, which contains 176 acres, died in the year 1889, intestate, and leaving surviving him a widow and 12 children. Afterwards, and prior to July 1, 1890, Jacob S. Tennant and Cassie A. Tennant purchased the undivided interest of six of said children. They then brought a partition suit, praying for an assignment of the dower and division of the land, in which a decree was entered, adjudicating the right to partition and appointing commissioners to make it and assign the dower. Before this decree was executed, at the August term, 1891, Jacob S. Tennant, by leave of the court, filed in the cause deeds, executed by the widow and four others of the children, conveying to him the dower interest and an additional four-twelfths of the land, making ten-twelfths of the entire tract, owned by him and Cassie A. Tennant. The other two interests were owned by the plaintiff, Louis Stewart, and Emma Stewart, both infants. Then evidence was introduced at the bar of the court tending to show that the interest of said infants would be promoted by a sale of their interest in the land and payment of the proceeds thereof to their guardian, and a decree was entered setting aside so much of the former decree as ordered a partition of the land, decreeing a sale of the undivided interest of said infants, which decree was, on the 8th day of December, 1891, executed, Jacob S. Tennant becoming the purchaser for the sum of $200. This sale was confirmed, and on August 31, 1895, the commissioner who sold the land under the decree executed a deed therefor to Tennant. Immediately afterwards the Tennants took possession of the land, and by two leases, dated, respectively, June 28, 1894, and May 1, 1897, leased it to the South Penn Oil Company for oil purposes, and on or about the 9th day of April, 1897, said company entered upon the land and commenced drilling for oil and gas, and ever since has been in the exclusive and uninterrupted possession of the same for oil and gas purposes, and has drilled 11 wells on the land, all of which produced and are producing considerable quantities of oil.

On the 29th day of June, 1900, the plaintiff, who had been under age, as has been stated, when said decrees, sale, and leases were made, commenced this suit, by an original bill which was filed at July rules, 1900, alleging his infancy as aforesaid, setting up all of said proceedings and transactions, alleging that the decrees and proceedings in said former suit, whereby the Tennants claimed to have acquired title to his interest in the land, were erroneous, illegal, and void, showing that he had attained the age of 21 years on the 11th day of May, 1900, and praying that the said Tennants, South Penn Oil Company, and Eureka Pipe Line Company be required to answer the bill under oath, and show the quantity of oil taken by them, and each of them, from said land, the amount held by said pipe line company, and disposed of by it or any of the defendants; that an injunction be awarded restraining the Tennants and South Penn Oil Company from taking and removing any timber, oil, or other material from the lands, and from selling or otherwise disposing of the same or the proceeds thereof; that if the court should permit them to operate on the land it should appoint a receiver to take charge and control of one-twelfth of the oil then on hand or that might be thereafter produced; and that general relief in the premises, as to equity might seem right, should be granted.

To this bill, the appellants and others of the defendants demurred, and, the demurrers having been overruled, they filed their separate answers. Depositions were taken and filed, and on the 29th day of August, 1901, the decrees complained of were pronounced. The objection to one of these is that it sustained exceptions to parts of the answers of the South Penn Oil Company and the Eureka Pipe Line Company; and to the other that it permitted the plaintiff to file in this cause the record of said former chancery suit, dismissed from the case Cassie A. Tennant on motion of the complainant, set aside and annulled the decrees made in said former chancery cause at the August and December terms, 1891, set aside, annulled, and canceled the said deed to Jacob S. Tennant made under said decrees, and the lease dated May 1, 1897, in so far as they...

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