Wick et al v. Dawson et al.

• Decision Date: 15 December 1900
• Court: West Virginia Supreme Court
• Parties: Wick et al v. Dawson et al.

48 W.Va. 469

Wick et al

v.Dawson et al.

Supreme Court of Appeals of West Virginia.

Decided December 15, 1900.

1. Appeal Res Adjudicata.

Points adjudicated by this Court on a former appeal must be regarded as res adjudicata during the further progress of the cause, (pp. 470, 471).

2. Married Woman Liable for Debt.

A personal decree against a marrieu woman for a debt for which she is not personally liable is erroneous, (p. 472).

3. Foreign Decree Want of Jurisdiction.

If, in answer to plaintiff's claim, a married woman sets up plea of freedom from coverture by reason of a decree of divorce by a foreign court, plaintiff may impeach such decree for want of jurisdiction whenever it is offered in evidence, (p. 473).

4. Affirmative Relief Replication.

If the defendant does not ask affirmative relief, it is error to permit the filing of a special replication, but, if no evidence is offered in support thereof except such as is admissible in support of a general replication, such error will be deemed harmless, (p. 473).

5. Erroneous Ascertainment -Appealable.

An erroneous ascertainment of interest in excess of one hundred dollars, when an adjudication, and not a mere clerical error, is appealable to this Court, (p. 475).

6. Purchaser Formal Partiy.

It is not necessary to make a pendente lite purchaser a formal party to a suit. If such purchaser has any just grounds of defense thereto, he can make himself a party, and bring it to the attention of the court, (p. 476).

7. Pendente Lite Purchaser Erroneous Decree.

A pendente lite purchaser, who pays the subject-matter of litigation over to the debtor by virtue of a decree of the circuit court releasing a lis pendens, which decree is afterwards appealed to and reversed by this Court, is not protected by such erroneous decree. (p. 475).

Appeal from Circuit Court, Jefferson County.

Bill by Henry Wick & Co. against Charles L. Dawson and others. Judgment for plaintiff. Defendants appeal.

Modified.

D. C. Westenhaver and George Baylor, for appellants. McDonald & Beck with, for appellees.

Dent, Judge:

The case of Wick & Co. v. Ida M. Dawson and Charles L. Dawson, from the circuit court of Jefferson County, was here before. 42 W. Va. 43. By reference thereto the cause of action will be found fully stated, together with a copy of the paper on which the suit is founded. After it was sent back for further proceedings, the defendants filed their answers and depositions were taken. On final hearing the circuit court entered up a decree in favor of the plaintiffs against the defendants personally for the sum of seven thousand four hundred and forty-one dollars and two cents, and directed a renting of the place called Claymont until the debt, interest and costs are paid. The defendants again appeal, in which the pendente lite purchaser, Pauline Dawson, joins.

The first error assigned is that the contract sued on is entirely void. As a legal proposition this question was settled on the former appeal, and is now res adjudicata so far as this case is concerned. The court held that "such contract is not per se a fraud on the due administration of justice, and unless such fact is made to appear it is binding upon and enforceable against the purchaser.

It is as follows: "The real estate described in the petition in this case, having been advertised and sold to the undersigned, Charles L. Dawson, for forty-seven thousand (47, 000) dollars, and the said Dawson desiring to have the sale set aside and the property offered again for sale by the sheriff, and the defendants, Henry Wick & Co., objecting to such resale, it is agreed by the undersigned, Charles L. Dawson and Ida W. Dawson, his wife, that in con si deration of the defendants (Wick's) consenting that said sale may be set aside and the property again offered, that they, the said Charles L. Dawson and Ida W. Dawson, will indemnify said Wick and save them harmless from all loss, which they may sustain by reason of setting said sale aside1, and having the property again offered. And will pay to said Wick whatever difference there may be in the amount, which they would now realize if the present sale were confirmed and the amount bid paid, and what they may hereafter realize upon a resale of the property, so that said Wick will nor lose anything by consent to have said property again offered. Cleveland, Ohio, May 11, 1899. Charles L. Dawson, Executor of Estate of A. M. Harman, dec'd, Ida W. Dawson."

When the case went back the defendants in their answers again claimed it to be void as contrary to public policy and the due administration of justice, but they introduced no new fact showing it to be so, either in the allegations or proof. Charles L. Dawson had the right to bid on the property for the purpose of trying to preserve his wife's separate estate. This is why he bid in the property, and when it was sold to him he did not want the property, but hoped that on a resale it would bring a larger price. Henry Wick & Co., the only creditors who would be affected by the sale other than his wife, would not agree to such resale, unless they would agree to save them harmless, as they believed the property had brought sufficient to cover their debt. They then entered into the agreement aforesaid. It was a contract that in no way affected anybody but themselves. None of the subsequent creditors were interested, as the property did not bring a sufficiency to reach their debts, and the only prior creditor was perfectly safe, and on a final resale purchased the property at a sum sufficient to pay its debt. The only thing accomplished by the agreement was to transfer the liability of the debt of Henry Wick & Co. from the property to the shoulders of Charles L. Dawson and wife, whose duty it became to see that the property on resale brought sufficient to cover it to the extent secured by the sale, or they must bear the loss. It was not a contract, not a bid, but only a contract to relieve themselves from responsibility, and it amounts to the same thing as if they had assigned their debt to Charles L. Dawson and wife. The consideration was that they were to be relieved from the purchase, for undoubtedly Dawson was acting in the interest of his wife, as is shown by his signing the contract in the capacity of executor. If there was any wrong intent on the part of Dawson m bidding on the property plaintiffs are not shown to have any knowledge thereof, or co be particeps criminis therein, nor is there any mala fides on tneir part apparent in the case. Their only object was to legally secure the payment of their debt. In releasing Dawson it is not apparent they injured anyone but themselves. This question was fully settled on the former appeal. Seabright v. Seabright. 33 W. Va. 152, and McCoy v. McCoy, 29 W. Va. 795; Wandling v. Straw, 25 W. Va. 692; Henry v. Davis, 13 W. Va. 230; Camden v. Werninger, 7 W. Va. 528.

The second error assigned is the personal decree against each of the defendants.

As to Ida W. Dawson, this is plainly erroneous, and so admitted by the plaintiff's counsel. They claim, however, that she did not join in the appeal. There is no evidence of this fact before this Court, except the admission of counsel in argument, and she certainly does not want an erroneous personal decree standing against her. It is also apparent that Charles L. Dawson in all his dealings in this matter was acting in behalf of the estate of which his wife was the sole legatee, and in his executorial capacity. This is admitted in the bills and shown in the evidence. Where a fiduciary has acted in good faith for the protection of the estate which he represents a court of equity will always protect him from liability unless loss has been occasioned by his ladies or negligence. The general rule is that an executor cannot bind the estate he represents by the execution of contracts like the one in controversy, but can only bind himself individually, though he sign it as executor, and it is for the benefit of the estate. 11 Am. & En. En. Law (2 Ed.) 932.

This rule is for the protection of the estate, and not the other party to the contract. The plaintiffs in this case have not sought to hold him personally, but only in his executive capacity as shown by the allegations of their bill and their evidence in support thereof, and the sole legatee or heir of the estate and who has received it from such executor is a party to the contract as a joint obligor with the executor, thus plainly showing an intention to bind the estate alone. It would be inequitable to hold Charles L. Dawson individually liable contrary to the express understanding and agreement between all the parties thereto, if the terms of the contract did not so plainly bind him, affording no avenue of escape therefrom.

The next two assignments of error are that the termination of the coverture ended the separate estate of Ida W. Dawson, and that a special replication was permitted to be filed to answers which did not seek affirmative relief. The special replication was improperly filed, yet this is harmless error, unless evidence was admitted thereunder not proper under a general replication. The defendants in their answer claimed that Ida W. Dawson had obtained a divorce from her husband, and being free from coverture the rents and profits of her real estate were no longer liable to plaintiff's debts. Plaintiff denied this allegation by general replication. In support thereof the defendant offered the record of county court of Arapahoe County, Colorado. Plaintiffs then proved that at the time that such alleged divorce was granted, the defendants were both residents of the State of West Virginia, and claimed the divorce to be void. The defendants insist that this evidence was inadmissible under the. general replication. The decree; of divorce was void. This was the State of their residence, and here alone could they be freed from the bonds of matrimony. A decree obtained elsewhere is invalid and will be wholly...