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49 W. Va. 129

Biern v. Ray

West Virginia Supreme Court

Decided March 9, 1901

West Virginia Supreme Court · decided 1901-03-09

<p>1. Res Judicata — Decree on Merits — Estoppel.</p> <p>A judgment or decree upon the merits of the case is a bar or estoppel against the prosecution of a second suit upon the same demand, not only as to every matter which was offered and received to sustain or defeat the claim, but also 'any other admissible matter which might have been used for that purpose, (p. 135).</p> <p>2. Equity — Fraudulent Conveyance — Judgment.</p> <p>B. & F., having obtained a judgment against R. March 11, 1890, and docketed it according to law January 7, 1891, instituted a suit in chancery against R. and S. to set aside as fraudulent a deed from R. to S. dated December 17, 1889, after the debt was contracted, but before judgment, conveying from R. to S. a tract of land containing 34 acres, in which suit the bill was dismissed at the hearing on the merits; and in September, 1897, B. & F. brought another suit to enforce the lien of said judgment upon the undivided one-half interest of R. in an 86 1-2-acre tract of land, as to which there were no allegations in the pleadings in said first suit; and R. tendered a plea of res judicata setting up said former suit as an adjudication of the matters involved in the second suit, and -said plea was rejected by the court as insufficient. Held, the plea was properly rejected, (pp. 130, 131).</p> <p>3. Parol Contract — Statute of Frauds — Equitable Title.</p> <p>A purchaser of land by parol contract, having acquired an equitable title therein by part performance of the contract, such as will take the contract out of the -statute of parol contracts and entitle him in equity to have the contract specifically performed, may assert, as 'against the creditors of the vendor, his prior equity; but mere payment of the purchase money is not such part performance as will vest in him such equitable title and superior equity, (p. 137).</p>

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1901-03-09

How this case has been cited

Cited by 17 later decisions — most recently October 1965

17 state decisions

901901191019201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1ON PETITION FOR REHEARING.

¶2It is claimed in the petition for re-hearing filed in this case that the Court in deciding the case, has misapaprehended the facts because it is stated, in the second point of the syllabus, that in the first suit there were no allegations in the pleadings, as to the undivided half of the eighty-six and one-half acre tract of land and similar statements appear in the opinion, while it is contended that there are such allegations in the pleadings in the first suit. The assignments of error and argument were based *139upon, no such ground. The contention at the hearing was not that this tract of land was actually embraced in the pleadings of the former suit, but only that the plaintiffs could have set up their claim against it in that suit, and were therefore, bound to do so or be forever barred as to it. In the bill of complaint in the former cause there are no such allegations touching the eighty-six and one-half acre tract, if indeed, any at all, as would have supported a decree for the sale of Mrs. Ray’s interest in it. It is there stated that the defendant Catharine Ray, in soliciting credit from the plaintiffs and contracting her debt with them, represented to them “that she was the owner in fee of two valuable tracts of land which were unincumbered to-wit: A tract of thirty-four acres of land and one of eighty-six acres of land.” But there is no allegation that she owned the eighty-six acre tract or any part of it, or that the plaintiffs had a lien upon it, or any part of it; nor is there any description of it in the bill, other than that it is in Cabell County, or any exhibit with the bill in whiclf said tract is mentioned or described.

¶3It is also true that the bill prays “that a commissioner be appointed to sell the real estate of the defendant Catharine Ray” but that cannot affect a tract of land not alleged-to belong to her, and against which the bill sets up no claim.

¶4No other reference to the eighty-six and one-half acre tract of land appears in the record of the case as made in the circuit court, and no rights respecting it could have formed any part of the controversy in said former suit. It is mentioned in the petition filed in this Court but that is no part of the record in tha lower court, to which alone we must look to determine what was involved in the case.

¶5Affirmed.

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