Virginia Iron, Coal & Coke Co. v. Roberts

Buchanan, J., delivered the opinion of the court. This is an appeal from a decree of the Circuit Court for Wise county, sustaining a demurrer to a bill, as amended, filed by the appellant against the appellees, and dismissing the same; to a decree dismissing a bill of review filed by the appellant, to review- that decree; and to a decree striking from the docket the cause of Hunsucker, &c. v. Spear, &c., in which the appellant’s bill, as amended, was asked to be treated as a petition to rehear. The object of appellant’s bill was to remove a cloud upon its title to certain coal and mineral rights claimed by it. It is insisted by the appellees that the demurrer to the bill of the appellant, as amended, was properly sustained upon several grounds. First, because the deed of W. L. Roberts to his children, dated April 26, 1882, passed to his said children all his right, title, and interest in the land in controversy, and, therefore, the deeds made by him to Greenway and Warner, and to Barrett and Trigg, in the year 1887, passed no interest whatever in the lands. The appellant, in its amended bill, attacks the deed of April 26, 1882, upon two grounds: First, that it was voluntary and fraudulent; and, second, that the grantees in it are estopped from setting it up as against the appellant. The appellees insist that the charge in the bill (and when we speak of the bill we mean the bill as amended), that the deed was voluntary and fraudulent, is not sufficiently definite and specific, and that the facts relied on to show that the deed was fraudulent as against the appellant or those under whom it claims, should have 'been set forth. This objection to the bill is well taken; but that defect was not sufficient to justify the court in sustaining the demurrer to the bill, if the allegations of the bill are sufficient to estop the grantees in the deed of April 26, 1882, or those who claim under — 677 — them, from asserting rights under it to the prejudice of the appellant, or those under whom it claims. The estoppel set up in the hill is of two kinds — estoppel by the record, and estoppel in pais. As the question of estoppel by the record belongs more properly to another ground of demurrer it will not now be considered. As to the estoppel in pais. The bill alleges, in substance, that Wade IT. Roberts, one of the grantees in the deed'of April 26, actively participated in the negotiations that led up to the sales by W. L. Roberts to Greenway and Warner, and to Barrett and Trigg, and induced them to purchase; that said sales were made by W. L. Roberts with the knowledge, acquiescence, and consent of the grantees in the deed of April 26; and that Greenway and Warner, and Barrett and Trigg, and the parties through whom the appellant claims, each and all of them, at the time of their respective purchases, had no knowledge or notice of the alleged deed of April 26, but that they and each of them purchased in good faith, relying upon the assurances, representations, and conduct of the said Wade H. Roberts and the other grantees in that deed. If these allegations are true, and upon demurrer they must be so treated, they are sufficient to estop the grantees in the deed of April 26 from claiming any rights under it to the prejudice of the appellant (C. & O. Ry. Co. v. Walker, 100 Va. 69, 40 S. E. 633, and authorities cited), unless, as is urged, the bill was defective in not specifically alleging that the grantees therein had reached their majority when their father and grantor made his sales to Greenway and Warner, and Barrett and Trigg. The deed of April 26 provides that the grantees therein and neither of them have the right to sell or dispose of the real and personal property embraced in the deed, nor any part thereof, until they arrive at the age of twenty-one years. The — 678 — bill does not specifically allege that the grantees bad reached their maturity at the time the sales to Greenway and Warner and to Barrett and Trigg were made, but it does charge that they were made with their consent, which could not be true ordinarily unless they had reached the age of twenty-one years. The appellant, as appears from its reply brief, construes the language as averring that the grantees had reached their majority. Whether or not this averment would have been sufficient in setting up the estoppel if that question had been raised at the proper time, it is not necessary to determine. The grounds of demurrer relied on in the Circuit Court were specifically stated. The objection now under consideration was not one of them.. If the objection had been made in the trial court, the defect, if it be one, might have been remedied without costs or delay. It is purely technical and will not in the slightest degree affect the rights of the parties on the merits, as the same proof will be required to sustain the allegation as made as would be necessary if the bill had specifically charged that the grantees had reached their majority. The next ground relied on here by the appellees to show that the demurrer to the bill was properly sustained is that the appellant and those under whom it claims purchased during the pendency of the suit of Hunsucker and others v. Spears and others, and are conclusively bound by the proceedings in that cause, by which certain of the children of W. L. Roberts, grantees in the deed of April 26, 1882, who were also pendente lite purchasers, acquired absolute title to the land in controversy. In the year 1879 John Hunsueker, James Hunsueker and W. L. Roberts instituted a suit in the Circuit Court for Wise county against the heirs of: Thomas Rogers and others, for the purpose of having a contract for the sale of a tract of land (which includes the land in controversy), entered into by the — 679 — complainants in that suit with the heirs of Thomas Rogers, specifically executed, and also to have a partition of the land, made by the complainants between themselves confirmed. By a decree entered in that cause, the contract of sale was specifically executed as to a part of the land, and partition made between the parties to the suit. Before the report of partition was confirmed, W. L. Roberts departed this life, and, on motion of his children, the suit was revived in their names, as his heirs. At that term of the court (September, 1895,) the report of partition was confirmed, and O. M. Vicars was appointed a commissioner to convey to the heirs of W. L. Roberts the land assigned him in the partition, except a certain tract of 47 acres. Pursuant to that decree the commissioner executed a deed to the said heirs of W. L. Roberts. During the same term the court set aside that conveyance by a decree, in which it is recited that, “it appearing to the court that the land assigned to Win. L. Roberts should not be conveyed to his heirs in equal proportions,” and directed that the commissioner should convey to James A. Roberts, W. P. Roberts and W. H. Roberts, each, 6-25; to Louisa Roberts and Alice'Hubbard, each, 1-25; and to W. H. Roberts, as trustee, &c., of Isaac Roberts, deceased, 5-25 of the land. The land was conveyed to these parties in accordance with that decree by the commissioner, report made to the court, and his report confirmed. The proceedings in the case of Hunsucker and others v. Spears and others, which resulted in the conveyance last mentioned, it is insisted by the appellees, was an adjudication that the grantees in the deed of April 26, 1882, were entitled to the land in controversy, and conclusively binds the appellant, and those under whom it claims, all of them being pendente lite purchasers. The general rule is that a person who acquires an interest in land involved in a pending suit, and from a party litigant, takes — 680 — subject to the rights of the other parties to the suit as finally adjudicated and is concluded by the judgment or decree, whether he becomes a party to the suit, and has a day in court, or not. This rule is necessary to give effect to the proceedings of courts of justice. Without it the administration of justice might, in all cases, be frustrated by successive alienations of the property which was the subject of litigation, pending the suit, so that every judgment or decree would be rendered abortive where the recovery of specific property was the object. “But while there is no principle in the law,” as was said by Judge Tucker in French v. Loyal Co., &c., 5 Leigh, at p. 681, “more essential to the administration of justice than the doctrine of lis pendens, when properly understood, there is none which is attended with greater occasional hardship; nor would any be more pernicious, if extended beyond its proper limits.” It is, therefore, “confined,” as was said by Judge Green in Newman v. Chapman, 2 Rand. 93, 102, 103, (the leading case in this State on the subject), “in its operation to the extent of the policy on which it was founded; that is, to give effect to the judgment or decree which might be rendered in the suit depending at the time of the purchase.” See French v. Loyal Co., supra, 681-3. Applying these well settled principles to the facts of the case of Hunsucker and others v. Spears and others, do the proceedings in that cause which resulted in a conveyance of the land in controversy to the grantees in the deed of April 26, 1882, conclude the appellant from setting up claim to the coal and mining rights in the land as against the grantees in that deed ? Heither the grantees in the deed of April 26, 1882, as such, nor the appellant, nor those under whom it claims, were ever parties to that suit. W. L. Boberts, the vendor of both sets of claimants, was a party until his death. Then the suit was revived upon the motion of his heirs, and afterward prosecuted — 681 — in their names as heirs, not as purchasers. The question, whether the grantees in the deed of April 26, 1882, or the appellant had the better right to the coal and mining rights involved in this case, was not in issue in that case. A decision of that question was wholly unnecessary in determining the questions which were in issue. There was nothing in the record of that suit, at the time of the purchases of Greenway and Warner, and of Barrett and Trigg, which could have given them notice, actual or constructive, that the question of the rights of the grantees in the deed of April 26, 1882, was involved in that case. It could not have been involved in it at that time, for the vendees in that deed were not then parties to that suit in any capacity whatever. A purchaser having actual or constructive notice of a pending suit can only be held chargeable with knowledge of the facts of which the record in the suit, as it existed at the time of his purchase, would have informed him. He cannot be charged with knowledge of facts afterwards brought into the case. Davis v. Christian, &c., 15 Gratt. 11; Stout v. Phillippi Mfg. Co., 23 S. E. (W. Va.) 571, 56 Am. St. 843. But even if it did appear in the record of that court, as appellees insist, that the grantees in the deed of April 26, 1882, had some interest in or claim to the land which W. L. Roberts was seeking to have assigned him, it only appeared incidentally, and did not in any manner affect the litigation between the complainants and defendants in that suit; and a decision as to the validity of such claim was not essential to giving complete relief under the pleadings in the case. In such a case, even where the person w'hose interest only incidentally appears is a party to the suit, an adjudication of such a claim does not bind a pendente lite purchaser who has no notice of such claim; and for a much stronger reason it would not bind where such person was not a party to the suit. — 682 — In the ease of Bellamy v. Sabine, 1 De G. & Jo. 566, the question, was raised, how far a purchaser from a pendente lite defendant is affected by the right of another defendant in that same suit. It was there said that it seems where a person without notice of a suit purchases from one of the defendants property which is the subject of it, he is not in consequence of the pendency of the suit affected by the equitable title of another defendant which appears on the face of the proceedings, but of which he has no notice, and to which it is not necessary for any purposes of the suit to give effect. White & Tudor’s Lead. Cas. in Eq., Vol. 2, pt. 1, p. 112. In Ereeman on Judgments (1 Ed.), sec. 200, it is said, in discussing the doctrine of Us pendens, that “if in an action by one plaintiff against two or more defendants, it appears from the pleadings that one of the defendants has certain equities against other’s, but those equities do not in any way affect the present litigation between the plaintiff and defendants, and the rights of the defendants between each other are not sought to be determined, no lis pendens can be created beyond the purposes of the suit, and an alienee of one of the defendants is not charged with implied notice of the equities between the co-defendants. It would seem to be perfectly clear, in the absence-of authority on the subject, that there could be no Us pendens between co-plaintiffs and co-defendants in any action not designed to settle the rights of such plaintiffs or defendants between each other, no matter how many facts not material to the present controversy happened to find their way into the record. If, however, upon proper pleadings, one of the' defendants is shown to have certain rights, as against the others, affecting specific property, and entitling him to relief with respect to such property in the present action, a purchaser, after such pleading’s, have been filed and notice of the defendant’s claim for relief registered (where registry is required) is bound as a purchaser pendente lite.” — 683 — We are of opinion, therefore, that the decree of the September term, 1895, and the conveyance made pursuant thereto of the land in controversy on the lYth of that month, by Vicars, commissioner, invested the grantees in that deed with such title as W. L. Roberts was entitled to at the time of his death; that they took as heirs and not as purchasers from said Roberts; and that said decrees and deed in no way affected the rights of the appellant or those under whom it claims. Neither does the fact that the grantees in the deed of April 26, 1882, had the suit of Hunsucker, &c. v. Spears, &c., revived in their names as heirs merely, and not as purchasers, estop them, as the appellant insists, from asserting in this case their rights under the deed of April 26, 1882. The appellee? further insist that “the decrees entered by R. T. Irvine, special judge, in September, 1901, directing sale of the land in controversy for costs, the sale made pursuant thereto, and the decree confirming the sale, and the deed made by Commissioner Vicars and decree confirming this deed dated April 8, 1902, are all valid and binding and cannot be set aside,” and that the bill, as an original bill, was demurrable. The purposes of the suit of Hunsucker, &c. v. Spears, &c. had been accomplished by the proceedings had therein prior to the decree of April 12, 1899. Nothing further remained to be done in the cause except to settle the question of costs. By that decree the amount of costs were ascertained and apportioned among those liable to pay. Of that sum, as costs for partitioning the land, W. L. Roberts, though dead, was directed to pay $40, and it was decreed to be a lien on the land assigned him, and theretofore conveyed to his heirs by a commissioner of the court. By the same decree a receiver was appointed to collect and disburse the costs, and if the parties against whom costs were decreed did not pay within thirty days’ executions were directed to be issued in favor of the receiver against them. — 684 — On the 10th of September, 1901, more than two years thereafter, a decree, in which it is recited that the receiver, having-reported that the costs adjudged to be a lien upon the Roberts land had not been paid, was entered, directing O. M. Vicars, who was appointed a special commissioner for the purpose, to sell the land, or so much thereof as might be necessary, to satisfy the said costs. Pursuant to that decree the whole tract of 230 acres of land, alleged to be then worth $4,000, was sold, and purchased by W. H. Roberts, one of the heirs of W. L. Roberts, at the price of $42.00. The sale was reported to the court, and confirmed by decree of April 8, 1902. If the decree of April 12, 1899, was a final decree, as insisted by appellees, and as under our decision we think it was (Cocke’s admr. v. Gilpin, 1 Rob. 20; Ryan v. Ryan, 32 Gratt. 367; Rawlings v. Rawlings, 75 Va. 76; Sims v. Sims, 94 Va. 580, 27 S. E. 436, 64 Am. St. 722), the subsequent proceedings by which the land assigned W. L. Roberts was sold would seem to be without authority of law, at least as to the appellant, who had no notice thereof. In Johnson v. Anderson, 76 Va. 766, 771, where the court had given all the relief contemplated in the cause, Judge Burks, speaking- for the court, said: “The cause was ended, and the court could proceed no further. It had no further jurisdiction in that proceeding, either of the subject matter or of the parties. . . . The original cause being ended, the proceeding was a new one against the defendant, and being without notice the personal decree against him is a nullity, and would be so treated, we presume, everywhere.” See Battalie, &c. v. Maryland Hospital, &c., 76 Va. 63; Smith v. Powell, 98 Va. 431, 36 S. E. 522. If it had been necessary in the suit of Hunsucker, &c. v. Spears, &c. to have sold the land, the subject matter of the suit, for the purpose of partition, of course the costs adjudged — 685 — against each party would have been a charge upon, and should have been paid out of, his share of the proceeds of the sale. But in that case there was no necessity for sale for the purpose of partition, and none was made, or could have been made therein without the consent of parties. Howery v. Helms, 20 Gratt. 1. It would, therefore, seem clear that in a suit for partition, where there was no sale necessary or made for the purpose of partition, the court would not have jurisdiction to sell the land assigned one of the parties to satisfy his share of the costs of partition. The costs adjudged against such party would be a lien upon the land assigned him, and perhaps a preferred lien, as they were necessary to perfect his title in severalty to it; but it would have to be enforced like other judgment liens upon the land by a bill in equity, as provided by sec. 3511 of the Code. But if it be held that the proceedings in question which resulted in the sale of the land are binding upon the heirs of W. L. Roberts, since they, being parties to the suit, are presumed to have had notice thereof and made no objection, still they are not binding upon the appellant, who had no notice of them. As before stated in this opinion, a purchaser having actual or constructive notice of a pending suit can only be held chargeable with knowledge of the facts of which the record in the suit, as it existed at the time of his purchase, would have informed him, and he cannot be charged with knowledge of facts afterward brought into the case, (Davis v. Christian, supra), or be bound by proceedings had therein affecting the land after a final decree, and beyond the jurisdiction of the court. Having reached the conclusion that under the allegations of the bill the grantees in the deed of April 26, 1882, are estopped by their conduct from asserting a claim under it to the prejudice of the appellant; that the proceedings in the cause, by which the land assigned to W. L. Roberts was directed to be — 686 — conveyed, and was conveyed, to Ms heirs, did not adjudicate any question between them and the appellant as to which had the better title to the coal and mining rights M controversy; and that the proceedings in the case, after the final decree of April 8, 1899, are not binding on the appellant; we are of opinion that the appellant was entitled to maintain its bill as an original bill to remove a cloud from its title, and that the Circuit Court erred in sustaining a demurrer to the bill and dismissing it. Having reached this conclusion, it will be unnecessary to consider the other grounds of objection to the validity of the proceedings in the cause of Hunsucker, &c. v. Spears, &c., set up in the bill, as a decision of the questions raised by them, however decided, could not render the bill demurrable, or affect the conclusion we have reached. The decree of the Circuit Court of April 11, 1903, dismissing the appellant’s bill, and its decree of April 7, 1904, dismissing the appellant’s bill of review, must be reversed and annulled; and this court will enter such decree as the Circrnt Court ought to have entered, overruling the demurrer to the bill, and remand the cause to. the Circuit Court for further proceedings to be had not in conflict with the views expressed in this opinion. And the appeal from the decree of April 10, 1903, in the case of Hunsucker, &c. v. Spear, &c. must be dismissed as improvidently awarded, as there was a final decree rendered in that cause more than one year before the bill in the case of Virginia Iron, Coal & Coke Co. v. Roberts, was asked to be treated as a petition to rehear in that cause. Reversed in one case, and appeal dismissed in the other.