Winans v. Winans

• Court: West Virginia Supreme Court
• Writing for the Court: SNYDER.
• Citation: Winans v. Winans, 22 W.Va. 678 (W. Va. 1883)
• Decision Date: 24 November 1883
• Parties: Winans et al. r. Winans et al.(*Woods, Judge, Absent.)

22 W.Va. 678

Winans et al. r. Winans et al.

(*Woods, Judge, Absent.)

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1882

Decided November 24, 1883.

1. Where a person other than a regular judge has tried a cause below, and no objection was made on the trial to his authority, and the

reegs is silent on the subject, such objection cannot be raise for he rst-tiVne in this Court, provided the Constitution and laws of this-State, un'3er any form of election or appointment, authorize suoh person to sit as judge in such cause. (p. 682.)

2. tif 16-of art. VIII. of the Constitution of 1872 of this State, authorizes tlie egislature to provide by law for the election of

_ajr ecial judge to hold a special as well as general term of the rcuit court where, from any cause, the judge of such court shall fail to attend. (p. 682.)

3. Section 1 of chapter 129 of the Acts of 1872-3, is constitutional; and

under its provisions a special judge may be selected, as therein provided, to hold a special as well as a general or adjourned term of the circuit court, where the regular judge is not in attendance. (p. 682.)

4. When a commissioner, appointed by a decree in a suit in equity

to sell land, becomes himself the purchaser, the purchase is voidable at the election of any party interested in the land sold. And the law is the same where the purchase is made nominally by a third person, who is reported by the commissioner to the court as the purchaser, but who really purchased for the commissioner and conveyed the land to him after the purchase as reported had been confirmed, (p. 688.)

5. A release obtained, by a commissioner, who purchased the land

at his own sale, from the persons interested in the land, will not operate as a confirmation of such purchase, unless it clearly appears that such release was obtained without fraud or concealment and after a full disclosure of all the facts which rendered the sale voidable, (p. 6S8.)

6. Clauses 2, 6, 8, 9 and 10 of the syllabus in Newcomb v. Brooks, 16

W. Va. 32, and the principles therein declared, approved, reaffirmed and applied, (p. 688.)

The facts of the case are fully stated in the opinion of the Court.

J. Jj. Sail, for appellants.

Shelton L. Heger for appellee, Reger.

Snyder, Judge:

In a suit in equity brought in the circuit court of Barbour county by G. E. Jarvis against the executor of Benjamin Winans, deceased, to subject certain lands of the estate of said Winans to sale for the payment of his debts, Albert Reger was by a decree in said suit appointed a special commissioner to sell said land; that, on October 14, 1867, the said Reger as such commissioner sold a tract of one hundred acres of said land at public auction as required by said decree and one T. A. Bradford became the purchaser thereof at the price of one hundred and sixty dollars; that, on November 19, 1867, said sale was confirmed, and by a subsequent decree said commissioner was directed to convey the said land to the purchaser; that said Reger as commissioner did, by deed, dated January 11, 1869, convey the land to said Bradford, and by deed of same date said Bradford and wife conveyed said land to said Reger.

At September rules 1877, Gideon Winans, B. F. Winans and John Winans, devisees and distributees of said Benjamin Winans, filed their bill in the circuit court of said Barbour county against said Albert G. Reger, Lewis C. Daniels and others, in which, after alleging the facts before stated, they aver, that the sale of said one hundred acres of land by said Reger as commissioner to Bradford was fraudulent and void; that in fact said Reger was the real purchaser, the said Bradford having purchased it under a secret agreement or understanding with said Reger that the latter was to have it; that said Reger had enjoyed the rents and profits of the land for nearly ten years and sold therefrom a large quantity of valuable timber worth near one thousand dollars and appropriated the same to his use; that said Reger had sold said land to the defendant, Lewis C. Daniels, for four hundred and fifty dollars, and that by deed, dated February 10, 1877, he conveyed the same to him. The prayer of the bill is, that the sale of said land be set aside as fraudulent and that said Reger be required to account to the devisees and distributees of said Benjamin Winans for the rents and profits and timber taken therefrom, and for general relief, &c.

The defendant Albert G. Reger filed his demurrer and answer to said bill. In his answer, to which the plaintiffs replied generally, he admits that he as commissioner made the sale of said one hundred acres of land, but he positively denies that said Bradford purchased the same for him or that there was any understanding or agreement between said Bradford and him concerning said purchase; and he avers that two or more of 1he said Benjamin Winans were present at the sale, and feaae used his best efforts to get the best price posfcibjs for the lud; that some time after the sale, the said Bradford sold the land to him at the price of two hundred and dollars, of hich he paid in cash titty dollars, and agreed to pay the me hundred and sixty dollars due from Bradford on his nial purchase; that at the time of his purchase the timber on the land was inaccessible and valueless, but that he had since then had a public road made to it and caused improvements to be made on it; that the allegation of the bill, that he took near one thousand dollars worth of timber from it is false and untrue; that in April, 1869, eight of the nine heirs of Benjamin Winans, including the plaintiffs, made transfers and releases to him of their interests in said land three of them by deed and the other five by written contract which he exhibits.

And he admits that he, on February 10, 1877, sold the land to said Lewis C. Daniels and by deed of same date he and his wife conveyed the same to said Daniels with covenants of general warranty; that the price at which he sold said land was four hundred and fifty dollars of which two hundred dollars had been paid to him and two hundred dollars was payable July 1, 1878, and fifty dollars the residue July 1, 1879; and he denies all the charges of fraud and improper conduct made in plaintiffs' bill.

The exhibits referred to in the bill and answer were duly filed and depositions were taken by the plaintiffs and the fendant, Reger, to sustain the allegations, denials and averments of the bill and answer respectively.

The record recites that: "At a special term of the circuit court of Barbour county, held on the first day of March, 1878, by the Hon. G. D. Camden, it appearing to the court that process in this cause has been duly executed," &c. The decree, then, proceeds to dismiss the plaintiffs' bill as to the defendant, Reger, with costs. From this decree the plaintiffs have appealed to this Court.

The errors assigned here by the appellants are in effect:

First That the said special term of the circuit court was held by one G. D. Camden, who was not an elected judge of the State, and Second That the sale of the one hundred acres of land should have been set aside, because the commissioner who made said sale was the real purchaser.

1. The question raised by the first assignment of error is made for the first time in this Court. No objection was made or exception taken in the court below, and noming, so far as the record in this cause discloses, appears to show how the said Camden was appointed or by what authority he acted as such judge. The proceedings of the lower court are presumed to be regular, unless the contrary affirmatively appears upon the record. Objections taken for the first time in this Court will not be regarded in any matter of which the court had jurisdiction or which might have been remedied in the trial-court if objected to there. But as we know judicially, that G. D. Camden was not a judge of this State at the time this cause was heard, it is incumbent on us to enquire, whether or not under any circumstances, by the laws of this State, he could have properly acted as judge of said court. His election or appointment and regular qualification will be presumed, the record not showing anything to the contrary, provided such election or appointment and qualification are in any manner, under any circumstances or for any purpose warranted by the Constitution and laws of the State. Feaster v. Woodfill, 23 Ind. 493; Vandever v. Vandever, 3 Mete. (Ky.) 137; Sweeptzer v. Gaines, 19 Ark. 96.

The only question, then, that can be considered by this Court under this assignment is, whether or not, under our laws, authority can be conferred upon any person, not a judge of the State, to discharge the duties of a circuit court by holding a special term of such court or by trying any particular cause at such term. The solution of this question depends upon the Constitution and statutes of this State.

Our Constitution section 16 of article VIII provides, that:" The Legislature shall provide by law for the holding of circuit courts where, from any cause, tire judge shall fail to attend, or if in attendance, cannot properly preside."

The Legislature, under this constitutional provision in chapter 129 of the Acts of 1872-3, has provided that, in either of the cases mentioned in said provision, any citizen of this State who is a " discreet and proper person, learned in the law may be selected as judge to hold the term or try any partica Lir cause. The selection to be made in the, one case by attorneys at such court and in the other by v the parttes or their attorneys in the particular cause.

his Court in the case of the State v. Williams, 14 W. Va. 851, held that, 'tinder said constitutional provision and statute, any person, having the statutory requisites, might be selected as a special judge " to hold the general term of a circuit court, where; from any cause, the fails to appear, or if present cannot properly preside." But as to whether, under the Constitution and statute...