Richardson v. Donehoo

HaymoND, Judge,

delivered the opinion of the Court:

The appellant has assigned in his petition for the appeal and supersedeas the following as errors, for which he claims that said decree should be reversed, viz :

“ Your petitioner is advised and represents to your Honors that the said decree is erroneous, and that he is aggrieved thereby in the following particulars:

“First — In that the said decree was made before your petitioner’s exceptions to the answers of A. R. McCown and Daniel Donehoo (which exceptions were well taken) were passed on.

“ Second — In that your petitioner’s exceptions to the depositions of A. R. McCown and Daniel Donehoo were overruled, and the said cause was heard upon such depositions.

“Third — In that the said cause was finally heard upon said depositions when there had been no replication or issue, and while there were exceptions to the answers of the only two parties really interested otherwise than formerly.

*703 “Fourth—In that the said final decree recites and is based upon a decree in another suit, of which there was no evidence in this suit, and the sufficiency of which, as a release of the lien mentioned in the said decree, your petitioner had no oportunity of ascertaining or contesting.

“Fifth—In that the said circuit court, after having rightfully taken jurisdiction of the said cause, did not proceed to ascertain the amount due by your petitioner to the said McCown, and did not decree that your petitioner should not be compelled to pay interest thereon.

“Sixth—rln that the said circuit court dissolved the injunction which had been granted to your petitioner, and dismissed his bill without in any way securing his title from the cloud resting upon it, the decree in the suit of Jenkins v. Burke being inter alios and of no benefit to complainant, and of no binding force as to him.

“Seventh—And your petitioner represents' that the said decree is in other respects uncertain, informal and erroneous.”

As to the appellant's first assignment of error:

Syl]abus ¡ g lhl)Ug 2 Exceptions are allegations in writing, stating the particular points or matters, in respect to which complainant considers the answer insufficient as a response to the bill, or scandalous or impertinent. The object of exceptions is to direct the attention of the court to the points excepted to, and to take its opinion thereon, before further proceedings are had, to the end that, if the answer is insufficient, a better answer may be compelled, or if scandalous or impertinent, that the scandalous or impertinent matter may be expunged. 1 Barb. Ch. Pr. (2d ed.) 176. Exceptions for insufficiency of an answer can only be sustained where some material allegation, charge or interrogatory in the bill is not fully answered. Exceptions founded on verbal criticism, slight defects and the omission of immaterial matter, will be disallowed and treated as vexatious. Same book 176. In 3 Barb. Chy. Prac. (2d rev. ed.) 422, a form of an exception to *704 ail answer is given. I give so much of it as is pertinent, ‘ to wit:

,f Exceptions taken by the said complainant to the answer put in by the defendant, C. D., to the said complainant’s bill of complaint. First exception — For that the said defendant, C. D., hath not, to the best and utmost of his knowledge, remembrance, information and belief, answered and set forth whether (set forth the interrogatory in the bill which is not ansioered, in hcec verba.) Second exception — For that the said defendant, C. D., hath not, in manner aforesaid, answered and set forth whether» etc., (as supra.) In ail which particulars the answer of the said defendant, C. D., is, as the said complainant is advised, imperfect, insufficient and evasive; and the said complainant therefore excepts thereto, and prays that the said defendant, C. D., may put in a further and better answer to the said bill of complaint.

“ J. E., Solicitor and Counsel for Complainant.”

Syllabus 3 Strictly speaking the court should expressly pass upon the exceptions filed to an answer before proceeding to finally hear the case. But it seems to me upon principle as well as authority, that, if the exceptions are insufficient on their face, or the allegation, charged, or interrogatory, alleged not to be sufficiently answered, is not material, or when it appears that it is sufficiently answered, and the court ought to have disallowed or overruled the exceptions for either of said causes, it cannot be said that the plaintiff is prejudiced thereby in this case for reasons hereinafter stated. It seems to me, that the exceptions are not as specific as they should be under a strict interpretation of the rule in such cases, as the exception does not pretend to state hcec verba the allegation, charge or interrogatory alleged not to be sufficiently answered, but waiving this it seems to me that the plaintiff’s said answer is sufficiently responsive to the allegation in the bill, to which that exception refers, as I suppose, for I find no other of that description. The allegation is: “Your orator further *705 says, that when the last of the said notes became due, to wit, about April, A. D. 1867, your orater was ready and willing to pay the same, on condition that the said cloud upon his title by reason of the said decree should be removed ; your orator then and now believing that the said McCown was and is bound by his covenant of warranty to remove the same, and informed the said McCown through his agent, Daniel Donehoo, that he was so ready and willing, and your orator has ever since been ready and willing, and has repeatedly offered to pay the said note upon the same condition.” To this allegation the defendant A. R. McCown responds as follows, viz: “Respondent further denies, that when the said last mentioned note became due and payable, the said complainant offered to pay the same, or ever to this respondent’s knowledge, offered to pay the same, or auy part thereof, but he always refused to pay the same, and does now refuse.” Although this response is rot as specific as it might have been made and in that respect may be slightly defective, still it seems to me that the answer is sufficiently responsive to the material part of the allegation, in so far as any part thereof is in fact material, and especially so with reference to the language of the exception.

The plaintiff’s second exception to said answer I think is not well taken. The matter of this exception is more a matter of evidence, if its assumption be true, than an objection to the sufficiency of the answer as to the matter to which the exception relates.

The third exception to said answer, I think, is not well taken. It seems to me that the answer is sufficient upon the subject to which this exception relates. I am not aware of any rule that requires the particularity in an answer as to the matter referred to, which this exception would seem to indicate. According to my views, as above expressed, said exceptions are not well taken and should have been disallowed. The plaintiff’s exception to the answer of Daniel Donehoo is not strictly sufficient *706 uPon its face, for the reason stated in relation to the plaintiff’s exception to the answer ofMcCown, butwaiv-hig this objection I think the answer is substantially and sufficiently responsive to the allegations of the bill to which I understand said exception to refer. The answer in this respect might have been broader and more specific, still I think it is .sufficiently responsive and that the exception is not well taken and should have been disallowed. Mr. Robinson in the second volume of his Old Practice at page two hundred and thirteen says: “ There are some cases in the Virginia reports, which countenance the idea that an allegation in the bill, not denied by the answer, is to be considered as admitted. But these are cases, in which the allegation was that some fact did not exist, or that something was not done. Thus in Page’s ex’r v. Winston’s adm’r, 2 Munf. 298, a bill of injunction charged the plaintiff at law with having failed to do an act, on which the equity of his claim depended; and in his answer he took no notice of this allegation. The court at the hearing regarded this failure to answer the charge as a tacit acknowledgment of its truth, and decreed accordingly. See also Edgar v. Donally, &c., 2 Munf. 397; and Carr, Judge, in Coleman v. Lyne’s ex’r, 4 Rand. 457. “But, generally speaking, if the answer is deemed insufficient for omitting to notice any material allegation in the bill, the plaintiff should except to it, and call for a better answer. If, instead of excepting for insufficiency, the plaintiff enters a general replication to the answer, he cannot insist at the hearing that these allegations of the bill, which are not expressly denied by the answer, are admittéd to be true. Were he permitted to do this, he might surprise the defendant. By Chancellor Taylor in Dangerfield &c., v. Claiborne &c., 2 H. & M. 17; Coleman v. Lyne’s ex’r, 4 Rand. 454.”

Syllabus 4. Syllabus 5, Syllabus 2. But the provisions of the Code of this State of 1868 are materially different in some respects from the laws of Virginia at the time Mr. Robinson wrote, and under which the decisions, to which he refers, were made. The *707 thirty-sixth section of chapter one hundred and twenty-five of the Code of this State provides, “that every allegation of the bill not controverted by an answer, and every material allegation of new matter in the answer, constituting a claim for affirmative relief, not controverted by a reply, shall, for the purposes of the suit, be taken as true, and no proof thereof shall be required.” This makes a material change doubtless as to the necessity of exceptions to an answer, when the allegation, if material, is not controverted by the answer, for if not controverted it will be taken, generally, as true for the purposes of the suit. But when a defendant in his answer does controvert the material allegations of the bill in such a general way as not to constitute good pleading, if excepted to, then the plaintiff may except to the answer in a proper way and manner for not more specifically controverting material allegations of the bill. Burlew v. Quarrier et al. (sura.) This is perhaps true generally, but it is clearly so when the plaintiff has the right under the twelfth section of chapter one hundred and twenty-five of the Code of 1868 to require an answer from the defendant under oath as to the material allegations of the bill. The fifty-ninth section of chapter one hundred and twenty-five of the Code of 1868 provides that “ when a defendant in equity shall in his answer deny any material allegation in the bill, the effect of such denial shall only be to put the plaintiff, on satisfactory proof of such allegation, and any evidence which satisfies the court or jury of the truth thereof shall be sufficient to establish the same.” The fourth section of chapter one hundred and thirty-four of the. Code of this State of 1868 provides, that “ no decree shall be reversed for want of a replication to the answer, when the defendant has taken depositions as if there had been a replication ; nor shall a decree be reversed at the instance of a party who has taken depositions, for any informality in the proceedings, when it appears that there was a full and fair hearing upon the merits, and that substantial justice has been done.”

*708 This section of the Code was taken from the fourth section of the Code of Virginia of Í 849, and, so far as I have been able to ascertain after search, it was enacted in Virginia for the first time on the 27th day of February, 1S28. See acts of the Legislature of Virginia of 1827-8, page 20. The decision in the case of Clarke v. Linsley, adm’r, 4 Rand. 250, was made in May, 1826, prior to this act. In that case it is manifest, I think, that the answer was insufficient, and the case in this respect, as well perhaps as in others, materially different from the ease at bar. The case was not cited by counsel.

Syllabus 7. If the court in the case at bar bad done expressly, what regularly it ought to have done, then under the fourth section of said chapter one hundred and thirty-four of the Code of 1868, this case, in consequence of depositions having been taken by the defendants as if there had been a replication to the answer, would have stood, as to said answers, as though a general replication had been filed, or in other words, the court should not, and as is manifest I think, it did not, take the answers excepted to as true on the hearing. The Ohio River Navigation Co., et al. v. Webb, 3 W. Va., 438; Martin v. Rellehan, 3 W. Va. 480; Forqueran v, Donally, 7 W. Va. 114. The case at bar then was heard by the court upon its merits, just as it should have heard it, if said exceptions had been expressly overruled by the court, as they should have been, and general replication had been filed to said answers. The case might have been different, if the defendant had taken no depositions. Both of the answers so excepted to were sworn to on the 4th day of February, 1875, and doubtless left in the clerk’s office; and the depositions of both the plaintiff and defendants were all taken subsequent to that time, and evidently with reference to the answers. The defendants depositions were manifestly taken to support the allegations of the answers; and those of the plaintiff to prove the bill, and disprove the answers so excepted to. It may be remarked, that the plaintiff made no ob *709 jection to the court hearing the cause, as it did, and did not even ask for a continuance, so far as the record shows. Under such circumstances this Court will presume that the cause was heard without objection. Gardner et al v. Landcraft, 6 W. Va. 36. As the plaintiff, who is appellant, took depositions, the decree should not be reversed at his instance for an informality in the proceedings, if it appears that there was a full and fair hearing upon the merits, and that substantial justice has been done. Section four, chapter one hundred and thirty four, Code of 1868. In Henchman’s adm’r v. Ballard adm’r, 7 W. Va. 152 this court held that “when a demurrer is filed to a bill, and the court proceeds to adjudicate, and does adjudicate, the principles of the cause in favor of the plaintiff without first acting pro forma upon the demurrer, it will be considered that the court in rendering the decree adjudicating the principles of the cause considered the sufficiency of the bill, and substantially overruled the demurrer thereto.” Under the circumstances of this case, it seems to me that it cannot properly be said that the plaintiff was prejudiced by the court proceeding to hear the case upon its merits without expressly overruling by an order the said exceptions to said answer, the-exceptions not being well taken. The appellant’s said first assignment of error is therefore overruled. It might be different if the exceptions were well taken. It may be that the exceptions ought to be considered as waived, but under the view I have taken of the ease, 1 deem it unnecessary to decide that question now.

As to the appellant’s second assignment of error:

The first and second exceptions to the depositions of defendant, Daniel Donehoo, involve the sufficiency of the notice and order of adjournment of the taking ofthé depositions. No particular defect is pointed out by the appellant’s counsel in his brief or argument in the notice touching its sufficiency. I have examined the notice and the service thereof and the plaintiff’s affidavit,, and it *710 seems to me that- the notice of taking the depositions is sufficient. The adjournment of the taking of the depositions from the 23d of February, 1875, to the 24th day of February, 1875, I think, is good and sufficient. The depositions seem to have been taken on the 24th of February, pursuant to the adjournment on the 23d. Huster v. Fulcher, 5 Rand. 124, 128, 129.

Syllabus 8. Syllabus 9 The third and fourth exceptions of the plaintiff to the depositions of Donehoo and McCown are insufficient, being too general. It is the duty of the exceptor to point out the exceptionable passages, contained in the deposition or depositions. It is the duty of the exceptor to lay his finger upon the passages which in his opinion come within the scope of his objections, so that the mind of the court may be brought to bear upon them. In the case of Harriman v. Brown, 8 Leigh 697, it was held as follows: “A deposition is objected to, so far as it states the mere belief of the deponent as to the matters spoken of by him, the sayings or doings of others not parties to the suit, and the understanding, reputation or tradition of the neighborhood; and also, so far as the answers are given to leading questions. Held, it is no sufficient to make the objection in these general terms but it is incumbent on the parties objecting to point out the exceptionable passages, and move the court to expunge or disregard them.” But even if these exceptions were properly and sufficiently taken, and this court would so regard them, and held, that the court improperly overruled them, the decree of the court below would not be reversed on that account merely, if excluding the objectionable evidence there is still sufficient to sustain the decree. For the foregoing reasons the appellant’s said second assignment of error is overruled as not being well taken.

As to the appellant’s third assignment of error:

This exception has been fully answered in considering the plaintiff’s first assignment of error; and for the reasons there stated it is overruled.

*711 .As to the appellant’s fourth assignment of error:

Syllabus10, Syllabl,s n' Syllabus 12> It appears in this case satisfactorily that the defendant, McCown, did before the filing of the bill in this cause settle with and pay to the defendant, John Jenkins, administrator of Mrs. McCloud, the sum of $300.00 in full satisfaction and discharge of the debt and the lien in favor of Mrs. McCloud on the land purchased by plaintiff, in the bill mentioned. There seems to have been a controversy as to the amount due on said debt, and this controversy was amicably settled and adjusted by and between the attorney and agent of said McCown and the said administrator, and said administrator in his answer substantially admits this fact. The executor or administrator is the proper representative of the personal estate, and all suits in relation thereto should be brought by and against him. In some special cases the rule seems to have been relaxed. See 2d Book of Tucker’s Com., ch. 27, vol. 1, p. 435, ed. of 1831. An administrator may settle or compound a debt; but if he compounds or releases debts, actions or demands for less than he ought, he will be liable as for a devastavit. Tucker’s Com. 2d Book, ch. 27, p. 436, vol. 1, ed. of 1831. See also 1st vol. Lomax on Executors, 2 ed. pp. 574, 575 ; 2 vol. of same 485. I apprehend that where an executor or administrator settles a debt and lien therefor due the estate, and receives payment of the amount ascertained to be due on such settlement, in full satisfaction of the debt, in the absence of fraud or mistake such settlement, as to the party settling and so paying the debt and lien, and payment thereof are generally valid and binding, not only as to the administrator, but as to the heirs of the administrator’s decedent. No fraud or mistake is pretended in this case. The administrator being the proper representative of the estate of Mrs. McCloud, deceased, there was no necessity for making her heirs parties thereto in this case, as it now appears. I see no necessity for relaxing the general rule in this case.

*712 Syllabus 13. *711 In the case of Craig v. Lebrell, 9 Gratt. 131, one clause *712 of the syllabus is : “ The decree referring to the record of another suit as an exhibit in the cause makes it a part of the record, though it is not referred to in the bill or answer, nor made an exhibit on the order book.” In this case at page one hundred and thirty four, Judge Lee in delivering the opinion of the court said: “ The next ground of error assigned is, that the court erred in looking into the papers of the injunction case of Price v. Le-brell upon the hearing of the cause.” And at page one hundred and thirty five he says: “ The objection, that this injunction case should not have been looked into, because it had not been made a part of the record of this case by the bill or answer, nor made an exhibit by any entry on the order-book, is sufficiently answered by the decree, which itself makes it an exhibit in this cause.” In the case at bar the court iuits final decree says: “But it appearing to the court by an agreement made a matter of record and entered on the 1st of March, 1875, in the chancery cause lately pending in this' court, wherein John H. Jenkins, administrator, was plaintifl, and Josiah Burke et al. were defendants, that the said cloud upon the said title has been since removed, it is by the court ordered,” &c. This makes the order or decree of the court, entered in the last named ease, in relation to said agreement, and said agreement exhibits in the cause. Said agreement of settlement, &c., is made an exhibit in each of the depositions of Daniel Donehoo and A. R. McCown as S. W. P. number five, and its execution fully proved. The appellant in bringing the record of this case before this court has failed to bring copies of said agreement and of said order or decree of the circuit court referred to in the final decree of said court rendered in this cause. It appears clearly by the final decree, that the circuit court read and inspected said agreement and order or decree therein referred to and had its mind specially directed to them, their contents and effect, and based its decree thereon. Now, it seems to me, if the appellant desired this Court to reverse the said *713 final decree, thus specific in its language and references, because the circuit court erred as to the proper effect to be given in this cause 1 o said agreement and order orde-cree referred to, he ought to have brought copies of said agreement and order and decree before this Court, as a part of the record of the cause, or if they were lost, he should have supplied them by taking the legal steps for that purpose.

SyIlabus 14- Syllabus 15. It is true as a general rule that error may consist in the absence of something from the record which should be there, in order to constitute its validity as an essential part of the case. When the record lacks such essential matter, the error then appears of record upon its face, as much, as though it was an affirmative error patent in the record. Powell on Appellate Proceedings, p. 326, ch. 7, § 51. But there are what seem to be some exceptions'to the general rulp. See Craig v. Sebrell, 9 Gratt. 131, and the opinion of the court in same case as delivered by Judge Lee at pages 134 and 135. Some consideration and weight must be given to the record of the court, as made in its decree, in a case like that before us. Caldwell v. Shields, &c., 2 Rob. 305. “An Appellate Court will not reverse the judgment of an inferior court, unless error affirmatively appear upon the face of the record, and such error will not be presumed, all the presumptions being in favorofthe correctness of thejudgment.” Shrewsbury v. Miller et al., 10 W. Va., 115. But even though I should be wrong in the view I have presented in regard to what appears in the final decree in this cause in relation to said agreement and the order or decree entered in the said case of said John H. Jenkins, adm’r, &c. v. Josiah Burke, et al., still I am satisfied from the admission of said John H. Jenkins, administrator of Mrs. McCloud, deceased, in his answer and from other sufficient evidence in the cause now appearing in the record, that the debt of Mrs. Mc-Cloud, deceased, in the bill mentioned, and which is alleged in the bill to be a lien on the tract of land *714 in the bill mentioned, was fully paid and satisfied before the plaintiff filed his bill of injunction in this cause, and I think it appears that the plaintiff was informed of that tact, before he filed his said bill; but I do not think it appears in the cause that the plaintiff had sufficient information of the fact, before he filed his bill, to render him censurable for having done so in a court of equity, orto justify a court of equity in declaring that he was not justifiable in filing his said bill, though it now appears by the record that the said. McCloud debt and the lien thereof had in fact been paid and extinguished a short time before the bill was filed. And for this reason I think, the court properly in dissolving the injunction before granted should have decreed costs in favor of the plaintiff against the defendant, A. R.. McCown, but I think the court erred in decreeing costs against all the defendants under the circumstances appearing in this cause. While an appeal, does not lie to this court from a decree for error ofjudgment in the court below for costs, still where the cause is properly before this court upon subjects other than costs, although the court sees no other error in the decree of the court than in its decree for the costs, this court may correct the decree of the court below as to the matter of costs, and affirm the decree as thus corrected ; which I think should be done in this cause. Jones v. Cunningham, 7 W. Va. 707.

In the last named case it was held by this Court, “if an appeal is taken from a decree of a circuit court to this Court, and the case is within its jurisdiction, the matter in controversy must be enquired into and determined; and if the decree be found to be right in all other respects and erroneous as to costs, this Court will not reverse the decree because of such error as to costs; but may, in a proper case, correct the decree as to the error, and affirm it as corrected.” I am not aware that this course lias been departed from by this Court since the last named decision.

Tucker in volume two of h.is Commentaries book three, *715 page four hundred and sixty-six, edition of 1831 says: “In those cases, however, in which there is a covenant of seizin that is broken, or when the party never has been put in possession under his contract, relief against the payment of purchase is freely allowed; for as on the one hand it is unjust that he should retain both the possession and the purchase-money, so on the other it would be equally unfair, that the seller should get the purchase-money, where he has never been able to put his vendee in possession. So where before a conveyance or outstanding encumbrance has been discovered, the purchaser may retain so much of the purchase-money as will indemnify him, until it is removed, though there be no covenants against encumbrances, Sug. 345. And the like principle prevails, I conceive, even after a conveyance, where there is a covenant against encumbrances, even though the vendee knew of their existence, 3 Munf. 68; or even where there is no such covenant, provided the vendee did not know of them, and the vendor did; for the concealment brings the case within the principle of relief against fraud. 3 John. 375.”

syllabus 16 Upon full consideration of this cause, as it is before us, I see no error in the decree of the circuit court of Hancock county, from and to which the appeal and supersedeas is awarded, except, as hereinbefore indicated, as to costs. And it appearing that there is no error in the said decree except in the last clause thereof, which is in these words, “and it is further adjudged, ordered and decreed, that the plaintiff recover against the defendants his costs by him about his suit in this behalf expended,” it is adjudged, ordered and decreed, that said last clause of said decree be and is hereby corrected so as to read and to be : “and it is further adjudged, ordered and decreed, that the defendant, Andrew it. McCown, do pay unto the plaintiff his costs by him about the prosecution of this suit expended.” And it is further adjudged, ordered and decreed, that the said decree of the said circuit court, as herein above cor- *716 reeled, be and the same is hereby and in all respects affirmed as corrected, and the appellant must pay the appellees their costs and $30.00 damages.

The Other Judges Concurred.

Decree Corrected and Afpirmed.