Work v. Rogerson

• Decision Date: 04 May 1965
• Docket Number: No. 12276,12276
• Citation: 149 W.Va. 493,142 S.E.2d 188
• Court: West Virginia Supreme Court
• Parties: Alberta M. WORK et al. v. T. L. ROGERSON et al. Jane P. DRAKE et al. v. T. L. ROGERSON et al.

Page 188

142 S.E.2d 188

149 W.Va. 493

Alberta M. WORK et al. v. T. L. ROGERSON et al.

Jane P. DRAKE et al. v. T. L. ROGERSON et al.

No. 12276.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 15, 1964.

Decided May 4, 1965.

Syllabus by the Court

1. 'The action of this Court in refusing to docket for review a case certified under Code 58-5-2, is not to be construed as a final adjudication of the questions presented on the certification, or as limiting the court in its decision upon the record presented on final hearing.' Point 1 Syllabus, Hastings v. Finney, 119 W.Va. 301 .

2. When a written opinion of the trial court is made a part of the record by a court order, this Court, on appeal of the case, may consider the court's written opinion in determining the ground or grounds upon which the trial court's judgment do based; and if such ground or grounds do not justify the judgment, this Court may still uphold the judgment if there is another valid ground to sustain it.

3. 'Champerty under the common law is not ordinarily consonant with modern statutes and decisions. It may be invoked now only in case of inequitable conduct.' Point 5 Syllabus, Currence, Executrix v. Ralphsnyder et al., 108 W.Va. 194.

4. 'Maintenance or champerty may be interposed as matter of defense, only in an action or suit based directly on the contract affected by the infirmity of maintenance or champerty.' Point 2 Syllabus, Irons, Admr., et al. v. Croft Hat & Notion Co. et al., 86 W.Va. 685 .

5. 'Strangers to a champertous contract cannot take advantage of it; only a party to it can do so.' Point 1 Syllabus, Harrison v. Harman, 85 W.Va. 538 .

6. If a decree in a case has been procured by fraud, discovered after the decree is entered on the court record, and after the adjournment of the term of court at which it was entered, it can be annulled upon a pleading which, prior to the effective date of the Rules of Civil Procedure for Trial Courts of Record, was designated as an original bill in the nature of a bill of review.

7. An adjudication by a court which has jurisdiction of the parties and the subject matter is not final and conclusive as to matters which were not adjudicated and which could not properly have been adjudicated in the case.

8. A statutory right to redeem property purchased by the state for nonpayment of taxes, or property forfeited to the state for nonentry, is a substantial equity or property right.

9. Under the provisions of Code, 1931, 11-10-30 (now appearing in revised form as Code, 11A-3-8), property sold by the sheriff for nonpayment of taxes and purchased by the state became irredeemable at the expiration of one year from the date of such sale but the right to redeem arose again under the provisions of Code, 1931, 37-3-29 (now appearing in revised form as Code, 11A-4-18), upon the institution of a suit by the commissioner of school lands to sell the property; and the right to redeem existed and continued until a sale and until a decree for the confirmation of the sale was made and entered by the court in such a suit, whether the state had obtained title to the property by purchase at a sheriff's sale or by forfeiture for nonentry.

10. The curative provisions of Acts of the Legislature, Regular Session, 1947, Chapter 160, Section 37, now appearing in Code, 1931, as amended, as Chapter 11A-4-37, do not validate and render legally unassailable a sale of land made for the benefit of the school fund if it is established in a proper legal proceeding that such sale and the confirmation thereof were induced by fraud.

11. In the exercise of its appellate jurisdiction, this Court will not decide nonjurisdictional questions which have not been decided by the court from which the case has been appealed.

Chauncey D. Hinerman, Moundsville, George Richardson, Jr., Bluefield, Chauncey Browning, Jr., Charleston, for appellants.

Moore & Moore, Everett F. Moore, Everett G. Cox, Moundsville, W. J. Brennan, Sistersville, Jack S. Francis, New Martinsville, Richard A. Warmuth, Cameron, for appellees.

CALHOUN, Judge.

This case involves two chancery suits instituted in the Circuit Court of Marshall County in 1949 for the purpose of attacking, on the ground of fraud, two judicial sales and conveyances of certain undeveloped coal and mining rights. The two chancery suits involve similar factual situations and similar legal questions and, therefore, they have been consolidated for purpose of the appeal to this Court. The sales were made in 1935 in two suits instituted in 1933 by Everett F. Moore, Commissioner of School Lands for Marshall County, pursuant to laws of this state relating to the sale of forfeited and delinquent lands.

Moore, as Commissioner of School Lands for Marshall County, instituted and prosecuted seven delinquent tax suits in the Circuit Court of Marshall County, including the two involved in this case. Each of the seven delinquent tax suits involved a large acreage or block of coal ownership and coal mining rights. The several blocks, as designated in the record, are as follows Whetstone, 1,006.34 acres; Liberty, 12,855.49 acres; Fish, 1,070.45 acres; Faith, 5,113.07 acres; Rice, 1,608 acres; Denny, 4,126.95 acres; and Phillips, 7,257 acres. The total acreage of the seven blocks is 33,037.30 acres. The total assessed valuation was $1,321,492.00, when the delinquent tax suits were instituted. The aggregate purchase price for the seven blocks was $10,800. T. L. Rogerson became the purchaser in every case except that relating to the Whetstone block, which was purchased by Walter A. McGlumphy.

Chancery suits were instituted by the previous owners, their heirs and assigns, to set aside the sales and conveyances in all of such seven cases except those relating to the Faith and Whetstone blocks. Matters in difference in these two cases were compromised prior to the time of the institution of the five chancery suits. By agreement of counsel, all of the five chancery suits were considered and heard together in the circuit court. The two chancery suits involved in this appeal were prosecuted and conducted to final judgment in the trial court under the procedure applicable to such suits prior to the effective date (July 1, 1960) of the West Virginia Rules of Civil Procedure. A demurrer to the bill of complaint was filed in each of the five chancery suits, which demurrers were over ruled by the trial court. The action of the court in overruling the demurrer in the Liberty block suit was certified to this Court, with the understanding on the part of the parties and counsel that the action of this Court on such certification should apply to all of the five chancery suits. This Court declined to docket the case certified. This refusal to docket the case certified cannot be considered, either as to the trial court or this Court, as a final adjudication of the questions certified. Hastings v. Finney, 119 W.Va. 301, pt. 1 syl., 193 S.E. 444; Sweeney v. Security Trust Co., 116 W.Va. 344, 351, 180 S.E. 897, 901.

Thereafter an answer was filed to the bill of complaint in each of the five chancery suits and a demurrer was filed to each answer. The circuit court overruled the five demurrers to the five answers. Subsequently, all matters in difference in three of the chancery cases were compromised and settled. The result is that only two of the chancery suits are presently before us. They relate to the Denny block and the Phillips block. The Denny block is involved in the chancery suit styled Drake et al. v. Rogerson et al. The Phillips block is involved in the chancery suit styled Work et al. v. Rogerson et al.

The Denny and Phillips blocks purchased by T. L. Rogerson were later sold by him to L. T. Heil. Everett F. Moore, who was commissioner of school lands, and who was appointed special commissioner to make the several sales and the consequent deeds of conveyance, was an attorney at law and a member of the Marshall County Bar. Walter A. McGlumphy also was an attorney at law and a member of the Marshall County bar. McGlumphy acted as attorney for both Rogerson and Heil.

In the five chancery suits which were instituted to attack the sales and conveyances made in the delinquent tax suits, Moore, Rogerson, Rogerson's wife, McGlumphy and Heil were made defendants. In these five suits, including the two involved in this appeal, the plaintiffs alleged that the decrees of confirmation of sales and the consequent conveyances were induced and made as the result of a fraudulent conspiracy involving Moore, McGlumphy and Rogerson; that Moore was interested in the purchase of the properties sold by him, in violation of Code, 1931, 37-3-25, and also in violation of Code, 1931, 11-10-7, (both of which statutes were repealed by Acts, 1941, Regular Session, Chapter 117 and, as revised, were placed in the Code in a new chapter, designated as Chapter 11A;) that the sales and conveyances should therefore be declared to be void; and that Heil had both actual and constructive notice of the fraud at the time he purchased from Rogerson.

Moore, Rogerson and McGlumphy filed answers to the five several bills of complaint. The plaintiffs filed replications to all the answers. Rogerson and McGlumphy died subsequently and the pending suits were revived in the names of their personal representatives. Heil also died after the suits were instituted and while they were pending. The suits were revived in the name of Heil's personal representative, who filed answers to the bills of complaint in behalf of Heil's estate.

The two chancery suits involved in this appeal were submitted to the circuit court for final decision upon the pleadings, exhibits under depositions taken in behalf of the respective parties. By a final order entered on October 31, 1962, the order from which the appeal has been granted, the circuit court held that the plaintiffs in the two chancery suits were not entitled to any relief and that the two bills of complaint...