Sperry v. Gibson , 3 W. Va. 522 ( 1869 )

Maxwell, J.

The appellee obtained an injunction in the circuit court of Kanawha county to prevent the appellant from enforciug a judgment obtained in said court against the said Granville Gibson for the possession of a tract of 200 acres of land. The bill charges that after the marriage of the complainants a tract of 200 acres of land was con-vejmd to the said Polly Gibson, and her heirs, by deed, bearinsr date in 1847; that the said tract of land was sold in the year 1855 for the lion payment of taxes, charged thereon for the years 1850 and 1851, and purchased by William A. Howell; that the said tract of land was charged with taxes, returned delinquent and sold in the name of the said Polly Gibson; that on the 23d day of January, 1858, the clerk of the county court of Kanawha county made to the said Howell a deed for the said tract of land; that the said Howell, by deed, bearing date January 30th, 1858, conveyed the said land to James M. Harrison, who conveyed the same to Sperry, by deed, dated March 1st, 1866; that the said Sperry afterwards instituted his action of ejectment against the said Granville Gibson in the circuit court of Kanawha county, and at the April term, 1867, thereof, obtained a judgment against him for the possession of the said land, on which judgment a writ of habere facias possessionem was placed in the hands of the sheriff to be executed. The bill further charges that soon after the said land was purchased by the said Howell, and long before the expiration of two years from the time of said purchase, the said Polly tendered to the said Howell the amount which he had paid for the same, with the additional taxes he had paid thereon, and interest on the same at ten per centum per annum from the time when paid, and that he refused to accept the said tender, and on the expiration of the two years fraudulently and unlawfully obtained the said deed from the clerk for the said land.

Howell, Harrison and Sperry were made defendants, all of whom demurred to the bill. The defendants, Sperry aud Harrison filed a joint answer and admitted that the land was sold in the name of Polly Gibson, purchased by Howell and conveyed afterwards, as charged in the bill, and that a judgment was obtained, as charged, for the possession of 'the said land. They say that if the deed was obtained by fraud'they know nothing about it. They further deny that a tender to the party who purchased the land is sufficient, if refused by him. They also deny that Polly GiK son has any right to redeem while she remains a feme covert.

The defendant, Howell, filed a separate answer, and made pretty much the same admissions, except as to that he denied that any tender was ever made to him, either before or since he obtained his deed from the clerk. He denies that said deed was fraudulently or unlawfully obtained.

I think it sufficiently appears, from the evidence, that Mrs. Gibson did, before the expiration of the two years from the date of the purchase by Howell, tender to him, as charged in the bill, the amount for which the land was sold, with the additional taxes he had paid thereon • and interest on the same at ten per centum per annum from the time when paid. It was the duty of Howell to have received the money when tendered, and to have released to Mrs. Gibson the benefit of his purchase, but having failed to do so, she has the right to go into a court of equity to compel him, his heirs or assigns, to do so. The decree of' the court, therefore, so far as it affects the rights of Mrs. Gibson, is substantially correct. It is claimed, however, that the judgment in the action of ejectment against her husband is conclusive against him and cannot be inquired into in a court of equity, because he might have defended himself at law but failed to do so.

It is a general rule that where a party may defend himself at law, equity will not interfere; and where he might have done so but has failed to do it, he shall not have relief by bill in equity unless he was prevented by fraud or accident, or the act of the opposite party unmixed with negligence on his part. How does this rule apply in this ease? Gibson was not prevented by fraud, accident, surprise, or the act of the opposite party, from making his defence. But was his defence such as could have been made in a court of law ? The plaintiffs’ right to recover depended upon the tax deed to Howell, the deed from Howell to Harrison, and from Harrison to him, all of which were regular, formal, legal deeds. The plaintiff had the legal right to recover the possession of the land from the husband who held it in right of his wife, not in any right of his own. The fact that the wife had made the tender and offered to redeem the land could not have been set up in a court of law by the husband to defeat the deeds. Norvell vs. Camm and wife, 6 Munf., 233. The remedy is alone in a court of equity. Gibson is, therefore, entitled to relief in a court of equity. The equity of the case requiring a conveyance of the land from Sperry to Mrs. Gibson, the foundation of the judgment against Gibson is taken away, and the injunction to the judgment should have been, as it was, perpetuated.

The form of the decree complained of probably might have been different from what it is, hut it is substantially correct, and must be affirmed, witlvdamages and costs to the appellees.

The other judges concurred.

Decree affirmed.