Pithole Creek Petroleum Co. v. Rittenhouse

Moore, Judge, delivered the opinion of the Court: The appellant, the Pithole Creek Petroleum Company, assigns six grounds of error in the orders dissolving the orders of injunction in this cause. The first assignment is, that “Upon the record of the original cause it appeared, that George Rice had the assignment made by Minsball and others of said 11-40’s; which 11-40’s, it was alleged, had been transferred by assignment to appellant, therefore whether appellant showed the actual paper of assignment or not, the prayer of the bill should have been granted, to-wit: enforcing Rittenhouse to make transfer to Rice, or directly to appellant, the assignee of Rice.” It is true the bill alleges that “Rice purchased from Minshall, Harman, Thompson and Sherman, Pierson, Wallace and Clark, for valuable consideration, all their right, title and interest in and to the said leasehold estate, and obtained from them an order or instrument in writing under their hands, in compliance with said deed of trust, directing and requiring said William Ritten-house to convey, assign and transfer to said George Rice their separate and respective interests in [and to said' property.” And the plaintiff files with the bill what it alleges to be a copy of said order, marked exhibit (B), and prayed to be taken as a part of the bill, and to which G. L. Sherman on the 19th day of August, 1870, after the answer was filed made affidavit, that it is a correct copy of an assignment in the possession of George Rice.” And the plaintiff further alleges, that “on or about the 1st day or about the 12th of July, 1870,” Rice presented said order to Rittenhouse, trustee, who refused to comply — 325 — with the same, and refused to convey and assign to said Nice the shares, &c. The defendant in his answer directly and plainly “denies, that Nice or complainant, or any one for it, ever presented a written request asking him to assign said interests, or either of them; but at the time he requested the said transfer to be made by defendant, he, Nice, did not present any written authority authorizing a transfer to be • made from the said O. Harman and others aforesaid.” We must look to the deed of trust, made by Peck to Nittenhouse, to see what was the power delegated to him as trustee to transfer any of the interests thereby conveyed. That deed declares, that “the said William Nit-tenhouse, trustee as aforesaid, or his successor, shall at any time, upon the written request of the said cestui que trusts, or any or either of them, sell, assign, transfer, and set over, or make, or cause to be made, at the proper costs of said cestui que trusts, any instruments in writing necessary and lawful to the selling, assigning, transferring or setting over of the same, the aforesaid interests, or any part thereof, of said cestui que trusts, or any or either of them, at such time, for such period, for such price, and to such person or persons, or to such corporation or corporations, as they or either of them may, by said paper writing by them or any or either of them signed, at at any time direct.” SyUabus *• Now it is plain, that Nittenhouse could not transfer any of those interests entrusted to him by said trust deed, except upon the writen request of the cestui que trusts, or any or either of them, and such “paper writing” must also. be signed by the “cestui que trusts, or any or either of. them.'” Therefore, as the answer denies plainly and directly, that Nice, or plaintiff, or any one for it, ever presented “a written request” from Harman and the other alleged stockholders, asking him to make said transfer, the onus is east upon the plaintiff to prove the allegation of its bill. Hayzlett v. McMillan et al, (decided this term). — 326 — There is nothing introduced by the plaintiff in proof 'of the allegations of its .bill, that Harman, Jonathan Sherman and others ever assigned their interest to Rice, and requested Rittenhouse, in writing signed by them, to transfer their interests to Rice. The exhibit (B), purporting to be a copy of such a written request, the original being in the hands of Rice, as stated in G. L. Sherman’s affidavit, cannot be received as evidence, because the non-production of the original is not accounted for. And even if the original properly authenticated had been introduced, it would only have shown, that those persons had made a written request to and directed the trustee to make the transfer, but the proof would have to go farther, and show that the written request had been presented to the trustee. It would not be proper conduct, on the part of the trustee, to make the transfer upon a mere verbal statement, that such a written request had been made and signed by the cestui que trusts. That it should be in writing and signed by the cestui que trusts, is not only in prevention of fraud, but is protection. to the trustee. Hence, the court did not err in dissolving the injunction, especially so as to the plaintiff, as there is not the semblance of proof of any assignment to the plaintiff from any source. The second assignment is that: “It was error to dissolve the injunction allowed on the original bill, because it clearly appears from the record, that Rittenhouse had transferred all beneficial interest in the property to Beverly Smith and the Ross County Oil Company.” This assignment is not well taken, and does not come with good grace from the appellant, because the plaintiff to sustain its cause must show first its own title and interest in the subject of the suit. Story’s Eq. Jur. Syllabus 2. It made the defendant a party by its injunction, and, until the plaintiff shows his title or interest in the subject of the suit, the defendant cannot be required to show his title or interest to or in the property. The plaintiff having failed to show his title or interest to or — 327 — in the property in controversy in this suit, the injunction was properly dissolved, and it was therefore immaterial, whether the defendant had párted with the property or , • not. The third assignment is, that “It was error not to quash the notice given to dissolve the injunction on the amended bill, because the notice was served on the 26th of August, 1873, and the notice was returnable to September 1, 1873, six days notice ; because the notice was made returnable to a place outside of the county, wherein the records of the court are kept, to-wit, to the office of the judge in Parkersburg, West Virginia, whereas the court, in which the case was pending, is the circuit court of Wirt county; and because the answer of the defendant was placed in the hands of defendant's attorney in Wood county, and not filed with the papers of the cause in Wirt county." SylIabus 3' This Court, following the decisions in Radford’s ex’ors v. Innes’s ex’ors 1 H & M. 8; Arbuckle v. McClanahan, 6 W. Va., 107, 108, held in the case of Horn v. Perry et al., at this term, that “it is a general rule not to continue a motion to dissolve an injunction unless from some very great necessity, because the court is always open to grant, and of course to reinstate an injunction, whenever it shall appear proper to do so, and because too the plaintiff should always be ready to prove his bill." Syllabus 4 The plaintiff had time from the filing of its bill in July, 1870, up to the 1st of September, 1873, and even from the making of its amended bill July 13, 1873, to September 1, 1873, to have been ready to prove its bill, had the plaintiff exercised due diligence; and certainly it is not to be expected, that the court will, after such gross laches, continue the motion to dissolve, because of the insanity of Pice, by whom the plaintiff expected to show its interest. If at any reasonable time Rice should recover mental vigor, the court, if proper, could reinstate the injunction, but clearly it should not be expected to continue the motion on that ground, — 328 — when tbe plaintiff had ample time before Biceps insanity to have availed itself of his testimony. As to the assignment, that the notice of the motion to dissolve was returnable before the judge in Parkersburg outside of Wirt county, where the cause was pending: This ground is not tenable, as decided by this Court in Hayzlett v. McMillan, and Horn v. Perry, Wirt county and Parkersburg being in the same judicial circuit. It was also held in Hayzlett v. McMillan, that “generally an answer to a bill in equity can only be filed during the session of the court, or at the rules ; but by our statute an exception is made incases of injunction. The larger power, to entertain and decide the motion to dissolve, embraces that of receiving the answer and also replication thereto, and making them a part of the record. Hence it was not error to place the answer in the hands of the defendant’s attorney in Wood county, to be filed upon the hearing of the motion to dissolve, (even if the answer was so placed in the attorney’s hands, but the record does not show such fact) especially as the hearing of the said motion was to be by the judge in chambers in said county, and both counties being in the same judicial circuit. The fourth assignment has been considered under the third; and for the reasons there stated, the court did not err in refusing to continue the motion to dissolve. The fifth assignment, that the injunction should not have been dissolved, on the ground that the object and purpose of the amended bill was to supply a lost paper i. e., the assignment by Rice to plaintiff. The allegations of the amended bill both as to the existence and the loss of said paper are fully and positively denied; no proof was offered in support of the bill, therefore the court properly dissolved the injunction. Hayzlet v. McMillan, and Horn v. Perry. The sixth assignment is, that “it was error to dissolve the injunction last mentioned, because the judge in vacation had no jurisdiction to dissolve injunctions sit — 329 — ting out side of the county, wherein the court] is held, without the express consent of the parties, and even consent could not confer jurisdiction.” The question raised by this assignment was considered under the third assignment; and it was there stated not to be error, under the decisions in Hayzlett v. McMillan, and Horn v. Perry. It is competent for the judge of a circuit, in which a case is pending wherein an injunction is awarded, to dissolve such injunction in vacation, after reasonable notice to the adverse party, in a county of his circuit other than that in which the cause is pending. The said two orders of the circuit court, dissolving the said injunctions, are clearly right, and should be affirmed, with costs, and$30.00 damages ; and this cause is remanded to the circuit court of Wirt county, to be further proceeded in according to the principles and rules governing courts of equity. Judges, Haymond, and Green, concurred. Orders Confirmed.