Shonk v. Knight , 12 W. Va. 667 ( 1878 )

Green, President,

delivered the opinion of the Court :

The appellant insists that the court erred in dissolving the injunction and the appellees claim that the court ought in addition to the dissolution of the injunction to have gone further and dismissed the bill. The court did not err in dissolving the injunction for several obvious reasons.

The affidavit to the bill of injunction was such that the court ought not to have awarded any injunction, the affidavit is in these words :' “T. W. Bradford, agent for John J. Shonk the plaintiff, in the foregoing bill being duly sworn says: that the facts and allegations therein contained, so far as stated therein on his own knowledge are true, and so far as, stated upon information, he believes them to be true.”

Syllabus 1 The injunction might properly have been awarded on the affidavit of T. W. Bradford, or any other person. The law does not require the affidavit to a bill of injunction to be made by the plaintiff. Our Code provides that no injunction shall be awarded unless the court or judge be satisfied by affidavit or otherwise of the plaintiff's equity, Code of W. Va. ch. 133 §3, p. 631. But no injunction can be awarded properly upon an affidavit by a third party, that the allegations of the bill he is informed and believes are true. For this ought not to satisfy the judge or court of the plaintiff's equity. T. ~W. Bradford is not named.in the bill, and there is no statement in the bill from which it could be inferred that he had any knowledge personally or otherwise, of any of the facts stated in it. No facts then being stated in the bill on his knowledge, his affidavit is therefore simply that he believes the facts stated in the bill to be true. In the case of Chesapeake and Ohio Railroad Co. v. Harlow, Huse, et al. 5 W. Va. 579, the affidavit made to the bill of injunction was made by a third party James Montgomery, and was substantially the same as the affidavit of T. W. Bradford, and this court held it to be insufficient to justify the awarding of the injunction. This case is commented on by this Court in the Oil Run Petroleum Co. v. Gale, &c., 6 W. Va. 542. Judge Haymond in that case thought that the action of the circuit court in granting an injunction ought not to be reversed when the affidavit was somewhat similar to the affidavit in this case and where the exhibits with the bill sustained the material allegations on which the injunction was awarded, but he was of opinion that more liberality would be shown in sustaining an order granting an injunction than in sustaining a decree refusing to t° dissolve an injunction. In the present case the exhibits do not sustain any material allegation in the bill. The court therefore did not err in dissolving this injunction. There are other reasons equally clear which justify the court in dissolving this injunction. Hada proper affidavit to the truth of the allegations in the bill been made, still the court ought not to have awarded the injunction, these allegations if true not justifying the awarding of the injunction. The bill alleges that the vendors of the land, the trustees, when about to sell caused to be prepared a map of the lands they proposed to sell and exhibited the same as a true and correct map of the boundaries of the land during the negotiations for the purchase and at the time of its consummation, and that the original purchasers, Echols, Bell and Cat-lett, as well as the purchasers from the three plaintiffs and B-eynolds relied on these representations and were induced to made the purchase thereby. And, that these representations and map showed that the land they supposed they were purchasing included a triangular piece of land of four or five hundred acres which, by mistake or fraud were, by the boundaries of the land sold as set forth on the face of the deed, left out of the land conveyed. Assuming for the present that this triangular piece of land did in the language of one of the deeds constitute a part of “the residue of the John Greene patent of sixteen thousand acres, deducting the portions sold and conveyed by Newton Gardner, deceased, by deeds of record,” yet it is obvious that it was not actually conveyed to the plaintiff or his vendors. For the conveyance is by metes and bounds which the bill states, do not include this triangular piece of land. And though there was added to this description of the land by metes and bounds, it “being the residue of the John Greene patent of sixteen thousand acres, deducting portions sold and conveyed by Newton Gardner, deceased, by deeds of record,” yet this addition though false will have no effect in preventing the land described by metes and bounds from passing by the deed. On the other hand this erroneous addition to the description of the land conveyed could not enlarge the grant, so as to include all the lands included in this erroneous addition. See Lomax’s Digest, vol. 2, p. 213. The bill admits this to be the true construction of these deeds and that they only conveyed the land actually en-cluded in the boundaries set forth in the deeds, but it claims that in addition to this land the triangular piece of ground was also purchased, and that by accident or fraud it was not included in the conveyances. Admitting for the present that this claim in the bill is well Svl]lalra8 2 founded does it follow that the sale by the trustees of the land within the boundaries and to which the title was undisputed would be any injury to the plaintiff. It was about to be sold to pay a portion of the purchase money admitted to be due, the title to it is admitted to be clear and indisputable, and what reason can there be for enjoining the sale, till a controversy about another piece of land adjoining it is settled? None that I can see unless it was so connected with this other piece of land that it could not be sold apart from it without sacrifice and unless the purchaser was unable to pay the balance of the purchase money and thus remove the necessity of a sale. And if the plaintiff would show a right to enjoin the sale these facts should have been alleged in the bill distinctly. His allegation in the bill on this subject is “your orator further says, that the said four or five hundred acres of land excluded as above alleged in the deeds aforesaid possess and have a peculiar and supreme value to the whole tract by reason of theirlocation and position with reference to the residue of the tract, as shown by map filed with the bill.” If this is intended as an allegation that a sale of the portion of the land conveyed by the deed and included in the boundaries set forth in the deed could not be had, except at a sacrifice, unless sold with this triangular piece of land claimed and outside of these boundaries, it is certainly alleged in a very vague manner. Perhaps this inference might be drawn from this statement, but it would certainly have been much better to have alleged distinctly this fact, upon which the plaintiff’s equity so far as the obtaining of an injunction was concerned depended. But waving this objection and supposing that the sale as proposed to have been made would have resulted in a sacrifice still if it is shown by the bill, that no sale would be made if the plaintiff paid what he admitted he owed and which he was ready and able to pay, he would have no right to ask a court to stay the sale as he would be both ready and able to stop it, by doing that which could result in no injury to him under any circumstances. The bill distinctly states both the readiness and ability of the plaintiff to pay the balance due from him and then stop the sale. The language of the bill on this subject is, “that so soon as the said deeds are corrected and reformed as prayed for, the balance of the purchase money due and unpaid will be promptly paid, and your orator hereby proffers to pay the sum whenever such justice is done.”. If instead of thus offering to make this payment conditionally, the plaintiff had, as he alleges he was able to do, actually paid this balance of the purchase money, he would thereby effectually have prevented such sale without asking the aid of a court of equity. And in making such payment he could have sustained no loss, even if it should turn out that he was entitled to the conveyance of this triangular piece of land by such of the defendants as made the deed originally. For by the statements of the bill itself their obligation to pay the balance of the purchase money would be unaffected by the court’s holding him entitled to this triangular piece of land. The bill does not allege that the boundaries named in the deeds, do not include nine thousand five hundred and eighty acres of lands and it thus admits that the plaintiff under no circumstance would be entitled to have any abatement of the purchase money. He should therefore have paid it, and thus avoided a sale, and failing to do so, when he admits his ability to make the payment, he had no right to ask a court of equity to stay the sale. But even if it had been out of his power to prevent the sale without risk or loss, and it had appeared distinctly that the land offered for sale would have sold better together with this triangular piece, and the bill had been properly verified, still there would have been no error in dissolving the injunction.

Syllabus 3 The allegation on which the whole equity of the plaintiff’s case hinged, was the alleged mistake of fraud in inserting in the deeds the boundaries of the land sold as they were inserted in the deeds. The answers fully, fairly, plainly, distinctly and positively deny the allegation, and therefore, according to the general rule laid down by this court in Hayzlett v. McMillan, 11 W. Va. 464, the court on the coming in of such answers, ought to have dissolved the injunction, if, as was the case, the allegations of the bill were unsupported by proof. It is true there are various exceptions to this general rule, as where the plaintiff would lose all the benefit which would otherwise accrue to him should he finally succeed in the cause, or where the facts disclosed by the bill and answer afford strong presumption that the plaintiff will establish his claim for relief on the parol hearing, and it appears that he would suffer great and immediate injury by a dissolution of the injunction, or when a dissolution of the injunction would in effect amount to a complete denial of the relief Sought by the bill. In these and some other cases it would be proper to continue the injunction till the hearing. But the case before us does not come within any of these exceptions, or any other exceptions that ought to be recognized. It would be obviously unjust to the defendants, to whom the balance of the purchase money is certainly coming, no matter how the case on its merits may be decided, should be delayed perhaps for years in the receipt of what it is admitted is due to them, merely to prevent a sale of property which might impose a loss on the plaintiff, when that loss could be avoided by his paying what he admits he owes an¿ js aye .¿q pay} and must ultimately pay.

It is insisted however that the injunction was prematurely dissolved, because all the defendants had not filed syllabus 4 answers.' But a plaintiff can in no case complain that an injunction has been dissolved before all the defendants have answered, unless he has used due diligence to expedite his cause, and procure the answers of all the defendants. See Mallet v. The Weybossett Bank, 1 Barb. 219; Depeyster v. Graves, 2 Johns. Ch. 148; Stoutenburgh, Day & Co. v. Peck, Pierson & Co. 3 Green Ch. 446. See Cox v. Hess, 5 Paige 85. In this case the plaintiff used no sort of diligence. He never issued a summons even against any of the defendants,except against Laidley and Knight, trustees, and Brown and Cowen, trustees. It is obvious from the bill and answers, that the trustees, Laidley and Knight, have no knowledge of the material allegations of the bill in reference to the mistake or fraud in setting forth the boundaries of the land in the deeds, and that all the allegations in the bill that they have any knowledge about, are fully admitted in the answers that are filed,.so thát no just complaint can be made of the court’s acting on the motion to dissolve before they filed answers. It is only necessary that those on whom rests the gravamen of the charge, should answer. See cases just cited, and Billet v. Lowmason, &c. 1 Green Ch. 404. The only defendants who have any knowledge about the material and controverted facts in the case who have not answered, are Echols, Bell, Catlett and Cowen. No summons ever issued against Echols, Bell or Catlett, and when the summons was issued against Cowen, it was returned by the sheriff of Kanawha county, “ not found and no inhabitant of Kanawha county.” And the plaintiff never issued another summons against Cowen, or made any efforts so far as the record shows, to obtain his answer, or the answer of Echols, Bell or Catlett. The statements too, contained in the answers filed, justify the conclusion that had the plaintiff desired, he could have procured those answers. The court therefore properly acted on the motion to dissolve without awaiting the filing of those answers. If as we have seen, the injunction was improperly granted in the first instance, the defendants had a right to ask dissolution as a matter of course, without awaiting the filing of the summons. See the case above cited of Mallett v. Weybossett Bank, 1 Barb. 217.

sy]]ahUS 5 The defendants insist that the court should have gone further and dismissed the bill upon the demurrer because, “the plaintiff in his bill alleges no interest in the subject matter of the suit, by reason of ownership, warranty or otherwise; ” but on the contrary shows by his bill that he and Reynolds have conveyed the whole of said land to the “Williams Coal Company, of Kana-wha, and the Cabin Creek Kanawha Coal Company, and put them in possession.” The allegation of the bill on this subject, is simply “that the legal title and possession of the said tract of nine thousand five hundred and eighty acres are now vested in and held by said companies.” This allegation does not show clearly that the plaintiff has no interest in the subject of controversy, but the bill does not show what the.plaintiff’s interest is, and if the counsel for the plaintiff should conclude that it was either necessary or better that the interest of the plaintiff should be made to appear otherwise than it does or more distinctly, the court ought to permit him to amend his bill. It ought not to dismiss it even if fatally defective in this respect, till opportunity to amend was given. I therefore express no opinion on the question whether the bill is fatally defective in this respect. The necessary parties to the trial of the cause on its merits not being before the court, it was properly retained as an original bill upon the docket for further proceeding to be had therein.

There might perhaps have been urged as an object-ti°n *° proposed sale of this land that the advertise- ’ ment of it was not as definite as it ought to have been in this that it described it as “the five-ninths part undi-vj(]ecl 0f a fract 0f land situate in Kanawha county, West Virginia, on the waters of Cabin creek and Joe’s creek, containing nine thousand five hundred and eighty acres, more or less, being the residue of John Greene’s patent of sixteen thousand acres deducting the portions sold and'conveyed by Newton Gardner, which said tract is more particularly described in the deed of Echols, Bell and Catlett to said Reynolds' and Shonk.” The object of the trustees was to advertise the fihe-ninths of the parcel of land contained in the boundaries set forth in the deed of Echols, Bell and Catlett to Rey-nold and Shonk, and no more, while the description inserted in this advertisement might be regarded as offering for sale perhaps the triangular piece of ground in controversy. And again it does not distinctly appear how this sale was proposed to be made. The advertisement says, “ they will sell the property in said deed conveyed or so much thereof as may be necessary to pay the indebtedness.” It might perhaps be inferred from this that so many acres of this tract of land would be sold as’ was necessary to pay this indebtedness, whereas the sale ought to be of such undivided portion of the whole tract within the boundaries set out in said deed, not exceeding five-ninths of the whole as should be necessary to pay the indebtedness, &e. But the bill made no complaint of the vagueness or inaccuracy in this advertisement, and as when the order of. injunction was dissolved the day of sale had passed and a new advertisement would have to be made, the court of course ought not- to have regarded these or any other faults in the advertisement as presenting any reason why the injunction should not be dissolved. The decree of the circuit court of Kanawha county, of December 18, 1876, must be approved and affirmed, and the appellees must recover of the appellant their costs about this appeal in this Court expended, and $30.00 damages, and this cause must be remanded to the circuit court of Kanawha county, to be there proceeded with according to the principles and rules governing courts of equity.

The other Judges concurred.

Cause Remanded.