Jones v. Fox , 1882 W. Va. LEXIS 48 ( 1882 )

GREEN, Judge,

announced the opinion of the Court:

There are two preliminary questions involved in this record, which must be disposed of, before this Court would be justified in deciding or expressing any opinion on the main question intended to be submitted to the Court, that is, who is the heir of James "Wilkinson deceased?

The first of these questions is: Have the plaintiffs made out a case, which justifies a court of equity in taking jurisdiction of it and determining their rights, as prayed for in their bill and amended bill, or should the court have dismissed the cause, so far as they sought relief, because on the facts alleged, is proven their only remedy was in a court of law? And upon the affirmative relief asked in the answer of William Fox, if the facts were proven as stated in his answer, could a court of equity grant the relief he asks, or should it leave him to seek his redress in a court of law?

If we were to exclude from our consideration the fact, that the circuit court of Kanawha had on a motion made by the defendants claiming to be the heirs of James Wilkinson assigned to the female plaintiff certain lands as her dower in the real estate of James Wilkinson, her husband, it would seem entirely clear, that she would have no case on which she could ask any relief in a court of equity. ITer case would be simply, that the defendants claiming as heirs of her husband, James Wilkinson, had taken possession of certain of his real estate, when in fact she was the sole heir of her husband. If this were so, audit this were the whole of her case, her obvious remedy would be to bring against them an action of ejectment, and recover from them the land and also the rents and profits of the land in the shape of damages. This she seeks to do m this cause by a suit in chancery; and a court of equity would be compelled to dismiss such suit for want of jurisdiction.

But in this case there is this additional fact, that the defendants or some of them as heirs of James Wilkinson in 1869 moved the circuit court of Kanawha to appoint commissioners to lay off to the female plaintiff her dower in the' lands of her husband, and the court did so. Bower was accordingly laid off to her by these commissioners, and their report thereof was confirmed and the female plaintiff took possession of the dower, so assigned to her, and held it for more than five years, while these defendants as heirs took possession of the residue of James Wilkinson real estate and have ever since held it claiming title to it as such heirs. This assignment of dower the female plaintiff asks to have set aside, as procured by fraudulent devices and by a misrepresentation of facts to the court, it having been mislead to regard these defendants as heirs of James Wilkinson when in fact the female plaintiff was his sole heir; and she being ignorant of the law and facts took possession of the lands, which the court was thus fraudulently induced to assign to her, and they took possession of the balance of the real estate. And she therefore asks the court to set aside this assignment of dower, and order the defendants to restore to her the residue of the real estate in their possession and pay to her the rents and profits thereof, which they had received.

Bo these additional facts, if all proven, confer any jurisdiction on a court of equity to grant her this or any other relief? They certainly do not, unless they obstruct her in bringing an action of ejectment against them. If we leave out for the present the fact, that she accepted the dower, which had been there assigned, it is,, it seems to me, clear, that all these other facts throw no sort of obstruction in her way in instituting this action of ejectment against them. It is claimed, that the judgment of the circuit court in appointing commissioners to lay off her dower upon the motion of the defendants as heirs at law of James Wilkinson, is a perfect estoppel to prevent her claiming for herself in an action of ejectment these lands as the sole heir of James Wilkinson, as the proceedings to lay off her dower was a judgment of the circuit court, that the defendants were heirs of James .Wilkinson; and this fact' must be regarded as conclusively established in these proceedings. In other words,.it is r,es ádjudíbata'; and1 these proceedings must be set aside before she could successfully, bring' such action of ejectment. .

This ytoulci.'be true, if these procéedíngs, if not set aside, conclusively establish,, that tlie defendants are heirs at 'of “dames' Wiíkiásó'n,' Éut do they have that effect? “We'havfe none of these proceedings in. this récord except the 'Arder of the circuit court made’off April 9, 186.9; stated to ’háye.'.'been. 'made in “Ex parte Heirs of James Wilkinson on motion to assign dower to Mary Ann Jones, widow andrelict of James Wilkinson,'in tlie real estate, of which said James "died 'Seized.” This .order confirms a report of certain com-tnissi'óiíeré,' who liad been heretofore appointed to make an 'assignment of the'widow’s' dower in these lands of James Wilkiiisoii, 'deceased, lying in Clay, and, Kanawha counties, WesbVirgiiiia.' It does not appear, when these commissioners wfer'e appointed; but it is fair to presume in the absence ;of all evidenefe or assertion’ even to' the contrary, that they ’•'Were appointed prior to the'first,day of April, 1869, as this 'was only nine’days prior to 'the entry of,this final order. 'The-motion 'therefore tó’ appoint these commissioners was inadeiinder the Code of Virginia .of 1860.ch. 110, § 9; for 'this law remained in forcé till,'April 1, 1869.i ■ The language of this section is :

'•: ?£í)ówer may bo assigned as at common law; or upon the motion of tlie heirs or devisees or any of them the court, may appoint commissioners by whom the dower may be assigned áhd their assignment when confirmed by the court shall .-have the Same' effect as if máde'bythe heir at'common .law-.. .But nothing herein contained shall’ be construed, to take away .or áffect'thé'jurisdiction which courts of chancery now exercise '¿Véf tlie 'subject of''dower'.” '• , .. ■ -. , ■

j'TKe very words of this statute'seems’, to me to show clearly, 'that the' proceedings' here authorized for the assignment of dówer 'áre merely ex parte proceedings and that, it is herein hleárly. provided that ' no action' ‘ of the court had ' in Such' .eoi parte proceedings should’ be regarded as con-fttusiVély adjudging anything, in a’manner binding <m tlie widow; and that it certainly would not preclude her from denying, that those, who made the motion, were heirs of "lier •husband. It would certainly be strange, if she was ^precluded by proceedings, of which she may have had no notice, and which it is expressly said shall have no other 'effect, than if dower had been assigned by the heir to her at common law. The mere fact, that she was notified, whón thé'law did not require any notice to- be given to her,- would- certainly not in any manner render these proceedings any more binding- on her, than they would be if strictly ex parte. In 'this case I presume they were without any notice to her. She says so expressly in her amended bill; and this is confirmed by the only order in these proceedings, which- is- produced, and which shows on its face, that it was an ex parte' proceeding. ■ ■

. The appellees’ counsel insists, ■ “that in these proceedings it must be presumed, that notice was given her, as ■ there1 is no principle of law better settled, than that every' act of a court of competent jurisdiction shall .'be- presumed to' have been regularly done, till the contrary appears. See Voorhees v. Bank of U. S., 10 Pet. 449; Harvey v. Tyler, 2 Wall. 328; Newman v. Mollohan, 10 W. Va. 488.” 'But-1 w-ould draw from these decisions and - principles as laid down exactly the opposite conclusion as to the facts. For as the law - did not reqniro notice of this motion to bo given, the presumption in the absence of proof must be, that no such notice was given to the widow. But I do not regard it as important, whether she in fact had notice, or not;.for, as I have said, the proceedings would not-from tire very words of the law conclusively adjudge1 anything. -This law was changed April-1, 1869. See Code of W. Va. ch. 65 § 9 p. 444. It seems to me obvious, that if the proceedings had been- under the Code of West Virginia, they would from the wording of the law-, as it now is, be in no respect more conclusive than the like proceedings under the Code of 1860. As to the effect- of these proceedings the wording of the law in the Code -of West Virginia is the same as in the Code'of Virginia 'of 1860 above quoted. . The proceedings upon the record in this assignment of dower in no way impeded the female plaintiff from bringing her action of ejectment against- these defendants,'who were in the possession of her husband’s lands as his heirs, if, as she claims, she was the sole heir of her husband capable of inheriting his lands. For these proceedings could have no effect in such action of ejectment in establishing the fact, that the defendants were heirs of James Wilkinson deceased. This fact was not adjudicated in these proceedings to assign dower; and by the words of the statute, under which these proceedings were had, they were to be as little effectual, as if they had hot been had in court, and the dower had been assigned her in pais.

It is argued, that the principle, that a tenant cannot dispute -his landlord’s title, would include the widow, unless this assignment was first ■ set aside. This principle is not universal but is subject to exceptions. (Alderson v. Miller, 15 Gratt. 279); but though wo regard the widow, the female plaintiff in the case, as the immediate tenant of the heirs, who assigned to her dower through the action of the court, this would not make the principle, which we have referred to applicable to the lands held by these heirs, which the female plaintiff seeks to recover; for she is certainly not a tenant of these lands 'but if of any, only of those, which she holds as dower land, not of those, which she claims to own as fee simple owiier as heir of her husband and held by the defendants under the claim, that they are the true heirs of her husband.

It may be suggested, that the charge, that the defendants had fraudulently procured this assignment of dower to be made to the female plaintiff, justified her in bringing this suit to set it aside, so as to prevent it effectually from impeding her in her action of ejectment for their lands. But there was no sort of necessity to set aside their proceedings for such purpose or indeed for any purpose; for we have shown that these ex parte proceedings could in no manner prejudice the lights of the female plaintiff or impede her in her action of ejectment. The same may be said of her prayer to set aside the agreement by the heirs to convey this land to Appleton. This agreement would in no maimer prejudice the female plaintiff, and therefore it was immaterial to her, whether it was set aside or not. We have said that the female plaintiff could not be prejudiced by the proceedings in the circuit court in assigning her dower or by any orders made in the ex parte proceedings. She stands in exactly the same situation as if these persons claiming to he heirs had without applying to the court assigned her dower, and she had thereafter permitted them to occupy the residue of the land not assigned to her as dower.

It is not for us in this case to say, whether her so acting would estop her from thereafter claiming the land as her husband’s sole heir or prejudice her right to recover the land in an action of ejectment, and, if it did, whether such prejudice or estoppel could not he avoided by proving, that she acted under a mistake of facts, or was imposed upon and did not understand her rights, or whether their possession under such circumstances would be regarded as adversary to her. These are properly questions belonging to the action of eject ment should one he brought by the plaintiffs against defendants; andthoughithas been discussed at the bar, we express no opinion in reference thereto; and for like reasons we express no opinion on the question discussed at the bar as to whether the female plaintiff or ¥m. Fox is the sole heir of James "Wilkinson, or whether the possession of the defendants, as shown in this cause, has been or is adverse to the female plaintiff.’

For the reason, which we have stated, the decree of the circuit court of Kanawha made on January 29, 1876, must be reversed, set aside and annulled, and the appellants must recover of the appellee ¥m. Fox jr., their costs in this Court expended; and this Court proceeding to render such decree as the court below should have rendered doth dismiss the amended bill of the plaintiffs hut without prejudice to any action of ejectment or other suit against the defendants or any of them, which they may be advised to bring; and the Court doth further refuse to grant to the defendant William Fox the affirmative relief prayed for in his answer and doth dismiss the same, so far as it is intended to operate as a cross bill, but without prejudice to him in any suit, which he may bring against the plaintiffs or which may be brought against him by the plaintiffs or either of them; and it is further ordered, that the plaintiffs do pay to the defendants their costs expended in the circuit court of Kanawha.

Judges Johnson and Haymond OoncuRRed,

DecRee Reversed.