McIntosh v. Vail

We are unable to concur in the opinion of the majority in these causes. As stated in that opinion, these causes have been heretofore considered by this Court in Appeals Nos. 9471 and 9472. We are presently concerned with Appeal No. 9471, reported in 126 W. Va. 395, 28 S.E.2d 607. In that case we dissented from the majority decision, believing that the covenant there considered was one running with the land and enforceable by the present owners of the ninety-four acres, and not a personal covenant in favor of the grantees in the deed from Mary E. Clerc to Stone, Gates and Rogers, dated November 22, 1899, or their distributees. The reasons for our dissent are therein set out at some length, and need not be repeated. Suffice it to say that in our opinion the fund in controversy legally and equitably belongs to The A. M. Carson Store Company, Waid E. Carson, and Bessie Staats, who are shown to be the owners of the ninety-four acres, or at least are entitled to the right growing out of the covenant in question, and who, notwithstanding the former decision against them, still assert their claim thereto under a somewhat different theory from that advanced on the former appeal.

But we are met with the contention that the former decision is binding on this Court on this appeal, is the law of the case, and may not be departed from. As a general proposition, this is true; but there are exceptions to the rule, one of which is well stated in Pennington v. Gillaspie, 66 W. Va. 643, Pt. 7 Syl., 66 S.E. 1009, wherein this Court said:

"It is a general rule, with few, if any exceptions, that a matter decided on appeal becomes, in effect, res judicata in that case; or, as it is frequently expressed, it become the law of that case in all subsequent proceedings; but when on a second appeal or writ of error it appears that the position of the parties has not been changed, or their rights injuriously affected by an erroneous ruling of the appellate court on the first hearing, and that no injustice or hardship would result from overruling the former decision, and it becomes necessary to reverse the case for other errors, the appellate court may correct its ruling on the former appeal or writ of error, and direct the lower court on new trial to disregard the first ruling."

Highland v. Davis, 121 W. Va. 524, 528, 6 S.E.2d 922.

The exception above noted in the Pennington case has been recognized in many cases. See Rash v. Railway Company, 122 W. Va. 688,692, 12 S.E.2d 501. Under the Pennington decision, if we find the trial court in error in decreeing a part of the fund in question to the distributees of J. M. Stone in preference to the claim of Adele Clerc Gardner, sole distributee of Mary E. Clerc, and we should reverse that decree, then under the conditions laid down in that case we would, in our opinion, be warranted in correcting the opinion rendered in Appeal No. 9471. However, the majority of the Court is unwilling to take this course.

In our opinion the fund in question is decreed to those who, among all the parties and claimants involved in this litigation are least entitled thereto. Stone, Gates and Rogers defaulted in every undertaking assumed by them in the transaction out of which this litigation arises. They agreed to pay to Mary E. Clerc the purchase money for the ninety-four acres of land she conveyed to them, but failed to do so; they denuded the land of its timber; and sold said land burdened with the debt and lien which it was their duty and obligation to discharge. He who comes into a court of equity must come with clean hands, and we think no one can say that the prevailing claimants to the fund in question can fairly claim to have discharged their obligation in such a way as to entitle them to that classification. So far as we can observe from the record, all other claimants have fully met the requirements entailed upon them, and each and all of them are denied relief, and those least entitled to consideration are favored and enriched. It may be said that Mary E. Clerc has been paid the purchase money for the ninety-four acres she conveyed. True, in the vendor's lien suit she was, no doubt with some expense and trouble, able by a sale of the surface of the ninety-four acres to secure the payment of the purchase money due her; but according to the opinion in Appeal No. 9471, the vendor's lien suit was ignored. It was there said: "We do not deem it requisite to inquire of the effect upon the covenant of the vendor's suit and proceedings in the bankruptcy court."McIntosh v. Vail, supra, page 406. And in other parts of the opinion the fact that there was no connection between the surface of the land to which the vendor's lien suit related and the oil and gas out of which the covenant arises was stressed. Now that vendor's lien suit and the sale therein made are utilized to support the claim of the Stone and Gates distributees.

We do not believe that Adele Clerc Gardner, the sole distributee of Mary E. Clerc is entitled to the fund in litigation; but we think she has a claim thereto superior in right to the claims of the distributees of Stone and Gates. If we could do so, we would under the rule announced in thePennington case, reconsider the opinion in Appeal No. 9471, and award the fund to The A. M. Carson Store Company, Waid E. Carson, and Bessie E. Staats. Failing in this we would award it to Adele Clerc Gardner, as having a right to defend any suit or action against her on the part of the Stone and Gates distributees.

As stated above, we believe that in this suit, in a court of equity, a substantial sum of money has been awarded to those who have no legal, moral or equitable right thereto, and for that reason we dissent.