Volume 54 — West Virginia Reports

<p>1. CONTRACT.</p> <p>It is not. necessary for the vendees of certain timber rights to sign and acknowledge the contract conveying the same to them to render them legally hound. Acceptance and operation thereunder hinds them to all its conditions and stipulations, (p. 10).</p> <p>2. • Pleading.</p> <p>On a hill filed to stay irreparable trespass a court of equity will not on evidence in the absence of allegations or pleading, putting the same in issue, enforce the forfeiture of a contract relied on by the defendants, when such forfetiure is founded on unsettled questions of law and facts, and such contract together with the plaintiff’s evidence fully negatives the allegations of irreparable damage contained in the bill. (p. 13).</p>

<p>Certiorari — Justice—Bond.</p> <p>A case in a’ circuit court on a writ of certiorari to; a judgment of a justice of the peace, awarded before the decision of the case of Richmond v. Henderson, 48 W. Va. 389, and within ten days from the date of the judgment, will, upon the request of the plaintiff in error, he treated as being in said court on an appeal, allowed by the court or judge thereof, although the requirements of the statute as to the form of the petition and bond in such an appeal have not been complied with. (p. 15).</p>

<p>1. Stmbts and Roads — Adverse Possession.</p> <p>Where private property is being taken for public use without compensation, equity has jurisdiction to enjoin the act, though there be controversy as to the title or boundary of the land, and to pass on the right of the parties finally, (p. 28).</p> <p>2. Streets and Roads — Abandonment.</p> <p>No. title by adverse possession can be acquired of land owned by a county and used for a public use for the site of a courthouse and1 other public buildings, (p. 28).</p>

<p>CONTRACT oi? Sale — Trustees■—Purchases.</p> <p>A contract of sale between a trustee in a deed of trust and a purchaser is complete, when the trustee, selling at auction, knocks the land down to the bidder, makes a memorandum of the sale and its terms and signs the same. (p. 39).</p> <p>2. Contbact of Sale — Statute of JTraMds.</p> <p>When a plaintiff, seeking to avoid such sale, admits in his hill that it was made hut does not set up the statute of frauds nor claim the benefit thereof, he is taken to have admitted an agreement which is either good under the statute, or otherwise binding upon him, and the contract will he held good, although it does not appear that such memorandum was made and signed, (p. 39).</p> <p>3. Notice— Trustee’s Sale.</p> <p>When the purchaser at such sale is not the trust creditor, nor a person in any way connected with the deed of trust except by his act of purchase, nor in any way chargeable with responsibility for the regularity of the proceedings of the trustee, nor having power of control over them, nor affected with any notice of irregularities, the burden is upon the party attempting to set the sale’ aside, on the ground of want of due advertisement, to show failure of advertisement, defects in the notice, want of sufficient publication or service or posting thereof, (p. 42).</p> <p>4. Notice — Trustee's Sale.</p> <p>Where the deed of trust provides that notice of sale under it may be given by advertisement, “published thirty days previous thereto in some newspaper” etc., publication in such newspaper once a week during such period of thirty days is suffcient. (p. 44).</p> <p>5. Notice — Sale. ■</p> <p>Failure to serve the notice upon the non-resident attorney in fact of the debtor will not invalidate the sale made by the trustee, although such attorney may have been domiciled in the county, (p. 45).</p> <p>6. Process.</p> <p>In the law of process and service thereof, the term resident .is generally synonymous with inhabitant, (p. 47).-</p> <p>' 7. Trustee’s Sale — Notice.</p> <p>Under the statute relating to sales under deeds of trust, a purchaser of the property upon which the trust deed is, or a subsequent incumbrancer thereof, is not entitled to personal service of the notice of such sale. (p. 48).</p> <p>8. Trustee’s Sale — Notice.</p> <p>A sale made by a trustee will not be set aside on the ground of failure -to post the notice of sale at the front door of the court house, when such failure is denied, unless there is proof thereof, the burden being upqn the plaintiff tg establish such irregularity, (p. 50). '</p> <p>9. Trustee’s Sale.</p> <p>A sale made by a trustee will not be set aside because of bis failure to make tbe report required by section 3 of chapter 87 of tbe Code. (p. 50).</p> <p>10. Trustee's Sale' — Notice.</p> <p>Where a trustee has sold property under a notice specifying tbe terms of the sale to be cash, and afterwards, with tbe consent of the creditor who is entitled to receive tbe purchase money, allows tbe purchaser time in which to pay a portion of the purchase money, receiving notes therefor and the residue in cash, without any prior agreement or understanding between the trustee and purchaser that there should be an allowance of credit as to any portion of the purchase money, such departure from the contract of purchase does not invalidate the sale. (p. 51).</p> <p>11. Trustee’s Sale.</p> <p>When a deed of trust provides that any sale of the property made by virtue thereof may be for cash or on credit, or partly for cash and partly on credit, and does not stipulate for personal notice of tho sale to any person not provided for as to such notice in the statute, the conduct of the trustee, in selling for cash and. failing to- have the notice of sale served upon a lienor holding a subsequent deed of trust on the property or claiming tho land as a purchaser at a sale made under such subsequent deed of trust, is not fraudulent, inequitable, or illegal and affords no grounds for setting aside the sale. (P. 51).</p> <p>12. Trustee’s Sale — Fraud.</p> <p>Such sale will not be set aside on the ground of inadequacy of price, at tne instance of such holder of a subsequent deed of trust, or purchaser at a sale made thereunder, when his bill is unaccompanied by any offer to pay a larger price for the land than that for which it sold, and bond or other guaranty that such higher price will be paid on a resale and the evidence as to the value of the land does not clearly show that tho price for which it sold is so inadequate as to shock the conscience and indicate that a fraud has been perpetrated upon the rights of the party complaining, (p. 53).</p> <p>13. Trustee’s Nale.</p> <p>One who complains of such a sale is not entitled to more favorable treatment in a court of equity than a person who complains of an unconfirmed judicial sale. (p. 53).</p>

<p>1. Gaming.</p> <p>Chapter 151 of the Codie fully covers and includes gaming and gaming devices, so far as the legislature deemed it expedient to legislate upon the subject. It specifically defines what shall be offenses thereunder, and fixes fines and penalties for violations thereof, (p. 57).</p> <p>2. Gaming — City Charter.</p> <p>Unless the charter of a city, town or village confers upon it authority so to do, the council thereof has no right or power to pass an ordinance to regulate or prohibit gaming or gaming devices, or to prescribe and enforce penalties for a violation of such ordinance. HeicC: That the ordinance passed by the council of the town of Bramwell on the 6th day of July, 1903, is unauthorized and void. (p. 58).</p>

<p>1. Appeal — Judgment.</p> <p>G-. & S., partners, recovered a judgment for $26.52 with interest thereon and costs against A. before a justice. A. gave bond with approved security, and was granted an appeal from the judgment of the justice. Afterwards, the plaintiffs and defendant appeared in the circuit court, and thereupon the ap-pellees moved the court to dismiss the appeal for the reason that the transcript filed did not show that any appeal had been granted by the justice to the appellant. The court sustained the motion, and dismissed the appeal, and gave judgment against the appellant for costs. At the next term, the court, on motion of the appellant, set aside its former order of dismissal, and re-instated the appeal on the docket for trial. Heidi: That the first order is not a final and conclusive judgment, and that the second order is authorized by section 11 of chapter 127 of the Code. (p. 81).</p>

<p>1. Newly Discovered Evidence.</p> <p>Newly discovered oral evidence, contradictory or cumulative in its nature, to be sufficient to sustain a bill of review, must like written evidence, be so indisputable as to be decisive of the case. (p. 84).</p> <p>2. Newly Discovered Evidence.</p> <p>Newly discovered evidence which is of such a doubtful character as only to open up the case for further litigation will not sustain a bill of review, (p. 85).</p>

<p>Appeal and supersedeas from the Circuit Court, Jefferson County. ■</p> <p>Action by Dabney C. Lee against Cruger W. Smith. Judgment for defendant and plaintiff appeals.</p>

<p>1. City Property — Sale.</p> <p>A separate part of a city, village or town lot cannot be sold under the provisions of chapter 31 of the Code of 1899. As to such lot, the sale must he of the whole lot, or of an undivided interest therein, (p. 103).</p> <p>2. City Property — Sale.</p> <p>Where the sale, as to such lot, is described, in the memo’ randum of sale, as “Vs of lot 35x120,” and, in the report of sale, as “% lot,” the quantity sold is on undivided one-half of the lot. (p. 106).</p> <p>3. City Property — Purchaser—Surveyor.</p> <p>In such case ,the purchaser must cause a survey and report to be made by the county surveyor, before obtaining a deed; but the provision of section 17 of chapter 31 of the Code, requiring division of the land, is not applicable. It applies only to purchasers of separate quantities or parts of tracts of land, other than city, village or town lots. (p. 106).</p> <p>4. Tax Sale.</p> <p>Power to sell real estate for non-payment of taxes must be expressly conferred by law. (p. 108).</p> <p>5. Statute.</p> <p>If the sense of a statute be doubtful, such construction should be given, if possible, as will not conflict with general principles of law. (p. 109).</p> <p>6. Statute.</p> <p>Of two constructions of a statute, either of which is warranted by the words of an amendment, that is to be preferred which best harmonizes with the general tenor and spirit of tho act. (p. 112).</p> <p>7. Statute — Construction.</p> <p>In construing a statute every word' in it must be given its full effect, if that can be done consistently; but, if full effect cannot be given, it must be made effective as far as possible. (p. 112).</p> <p>8. Statute — Construction.</p> <p>A statute may be construed contrary to its literal meaning, when a literal construction would result in an absurdity or inconsistency, and the words are susceptible of another construction which will carry out the manifest intention of the legislature, (p. 112).</p> <p>9. Statute.</p> <p>Words in different parts of a statute must be referred to their proper connections, giving each in its place its proper force. (p. 112).</p> <p>10. Notary Public.</p> <p>The oflices of notary public and judge of a criminal court ;,re incompatible, (p. 113).</p> <p>11. Defacto Offices.</p> <p>One who forfeits his right to an office of which he is the incumbent, by accepting another which is incompatible with it, and afterwards performs the functions of the office forfeited, is an officer, de facto, and his acts, done before removal from such office, are valid as to persans other than himself, (p. 114).</p> <p>12. Notary Public — Criminal Judge.</p> <p>A certificate of acknowledgment, made by a notary public who had accepted the office of judge of a criminal court, is valid, (p. 115).</p>

<p>1. Mechanic’s Lien.</p> <p>A common law lien, on personal property for work and labor performed is the mere right of detention of such property until satisfaction of debt, and is not the subject of equitable jurisdiction or protection in the absence of statutory provision or other grounds of equitable interference, (p. 119).</p> <p>2. Mechanic’s Lien.</p> <p>Such lien only secures to the lienor the right of possession and it is not otherwise enforceable. A sale made by him of the property would be wrongful, (p. 119).</p> <p>3. Mechanic’s Lien — Sale.</p> <p>For the deprivation of such possession, the lienor may maintain detinue or trover, or under execution -or attachment properly obtained, he may have sale of the property, (p. 119).</p>

<p>1. Action — Bond.</p> <p>An action at law on a guardian’s bond cannot be sustained until after a settlement of his accounts, (p. 120).</p> <p>2. Guardian — Ward.</p> <p>A guardian cannot be sued for necessaries for his ward, unless he expressly promises to pay therefor. There is no implied promise which will sustain such action against him for necessaries furnished the ward without his order; but if he make an express promise to pay, an action against him as an individual can be sustained, (p. 120).</p> <p>3. Action.</p> <p>A summons from a justice is against “B. L-. Hinkle, guardian for Joseph E. and Mary Friend, infants.” It is an action against Hinkle as an individual, (p. 121).</p>

<p>1. Ferries.</p> <p>. The State of Ohio has right to establish ferries on the Ohio side of the Ohio river and to fix their charges for ferriage over that river from Ohio to West Virginia, (p. 126).</p> <p>2. Ferries.</p> <p>West Virginia cannot punish one- who acts under a ferry-franchise given by the state of Ohio to operate a ferry from its side of the Ohio river over that river, for charging one coming from Ohio more than is allowed by West Virginia law for ferriage over that river, (p. 127).</p>

<p>1. Ejectment.</p> <p>In an action of ejectment, unless both plaintiff and defendant claim title from a common source, the plaintiff must connect himself by an unbroken chain of title with the state or commonwealth. (p. 142).</p> <p>2. Syllabus Approved.</p> <p>Point 3 in Wilson v. Braüen et al, 48 W. Ya. 196, approved and applied, (p. 144).</p> <p>3. Syllabus Approved.</p> <p>Points 5 and 6 in Goal Go. v. Howell, 36 W. Ya. 490, approved and applied, (p. 145).</p>

<p>1. Divorce — Abandomeni■—Desertion.</p> <p>A decree of divorce for wilful abandoment and desertion for three years will be granted the plaintiff, where it appears that the defendant was guilty of such desertion and abandonment for three years while he was of sound mind, although subsequently he became insane and at the time of the commencement of the suit and the granting of the decree he was a lunatic, (p. 148).</p>

<p>1. Summons — Record.</p> <p>The summons in an action of tresspass on the case is not a part of the record until made so by oyer. (p. 151).</p> <p>2. Pleading.</p> <p>Advantage of a variance between the writ and declaration can be taken by plea in abatement only and after oyer. (p. 151.)</p> <p>3. Summons.</p> <p>A summons setting forth the full corporate name of a defendant corporation, without reciting that it is a corporation, is sufficient, (p. 153).</p> <p>4. Damages.</p> <p>The owner of a gas well, situated near a public highway, may lawfully open it for the purpose of allowing the gas to blow the water out of it, although the noise thereby' made is clearly such as to frighten the horses of persons riding or driving along the highway; but, in doing so, he must exercise care not thereby to inflict injury upon such persons or their property, (p. 153).</p> <p>5. Damages — Negligence.</p> <p>Persons using horses on the highway in close proximity to such well, and seeing an agent of the owner at or near it, have the right to presume that he will not open it without warning, or first looking for travelers on the road, and are not guilty of contributory negligence in failing to turn and fly from it, or in failing to give warning of their presence, (p. 155).</p> <p>G. Negligence — Proximate Oause.</p> <p>When, by the negligent blowing off of such well, a teamster’s horses become frightened, and, in attempting to control them, a line breaks, causing him to fall from his wagon, whereby he is injured, the proximate cause of the injury is the blowing off of the well, although the line is weak and wholly insufficient for such an emergency, (p. 186).</p> <p>7. Jurisdiction — Abatement.</p> <p>In such action, if the declaration shows the jurisdiction of the court, and no plea in abatement has been filled, the judgment will not be reversed for want of proof of the venue as laid, (p. 159). . ‘</p>

<p>1. Court Cost — Mandamus:</p> <p>In awarding or refusing costs under section 6 of chapter 138 of the Code of 1899, the judge of a circuit court acts judicially and the writ of mandamus does not lie to control his discretion. (p. 165).</p> <p>2. Appeal — Mandamus.</p> <p>Failure of the law to give a right of appeal, where a party feels that he has been injured by a decision, affords no ground for an application for the writ of mcmdamus. (p. 166),</p> <p>3. Courts — Jurisdiction.</p> <p>There is no absolute' right in a suitor to have a decision against him reviewed, which must be respected in making laws, and, in the absence of a constitutional inhibition', it is within the power of the legislature to prescribe the cases and the courts in which parties shall he entitled to appellate remedies, (n. 166).</p> <p>4. Appeal.</p> <p>One trial, without review, fulfills the maxim that there is a remedy for every wrong. Allowing appeals and writs of error in some cases only permits the remedy to be further pursued in them than in those as to which such provisions are not made. (p. 166).</p>

<p>1. Writ of Prohibition — When Axmrdeé.</p> <p>The writ.of prohibition only properly issues to prevent unlawful judicial action by inferior tribunals exercising or assuming to exercise judicial functions. It never issues against administrative boards exercising purely administrative functions. (p. 168).</p> <p>2. Writ of Prohibition — When not proper.</p> <p>The writ of prohibition is never proper to try title to office and oust de facto officers and replace them by others claiming to be de jure officers, (p. 168).</p> <p>3. Motion to Discharge — When not necessary.</p> <p>When a circuit judge has issued a rule in prohibition directly contrary to the principles settled by this Court in a former case to which he was a party, this Court will not require the party making complaint to first make a motion to discharge such rule before .applying to this Court for relief against the same. (p. 169).</p>

<p>1. Injunction.</p> <p>A general allegation that the defendant is interfereing with the plaintiff “in the matter of farming, cultivating or tilling a farm on which plaintiff resides” presents no sufficient grounds for an injunction, (p. 170).</p>

<p>1. Contract — Divorce—Fraud.</p> <p>While it is a general rule that where a party who seeks to cancel a contract for fraud in its procurement the plaintiff must allege and show himself eager, ready and willing to place the other party to the contract in statu quo; yet in case of a wife who sues to annul a contract of separation and settling property rights between her husband and herself, and it is alleged that the execution of the coritract was procured from her by false and fraudulent representations of defendant and his agent, falsely representing that it was the purpose of the defendant to live with and support the wife and the object of the contract to reconcile and restore their marital relations; and it sufficiently appears from said bill that plaintiff is not able to repay the money given her by the defendant to induce her to execute the contract. Hold, not error to overrule the demurrer to the bill. (p. 176).</p> <p>2. Depositions.</p> <p>In order to have the advantage in the appellate court of objections to depositions being read in a cause, for want of proper authentication, or proper certification by the officer taking the same, the objections to the reading of the depositions, must be made -in the court below and the defective authentication or certificate with the objection copied into and made part of the record as provided in section 6, chapter 135, Code. (p. 178).</p> <p>3. Contract — Fraud.</p> <p>In a suit brought by a wife against the husband- to set aside and cancel a deed or contract between them for fraud in its procurement, by which contract the husband obtained an advantage over her, the burden of proof is on the husband to show that the wife was fully informed as to the effects of the transaction and also the utmost fairness thereof, (p. 178).</p>

<p>1. Feaud.</p> <p>If the case made by a party seeking the aid of a court of equity is tainted with fraud on his part, it will not aid him. (p. 192).</p> <p>2. Decebe — Demurrer.</p> <p>Where a decree disposing of the main issue of the cause makes no mention of the demurrer, the demurrer will be regarded as overruled, (p. 192).</p>

Action by A. A. Chapman and others against the Mill Creek Coal & Coke Company and others. Judgment for defendants, and plaintiffs bring error.

<p>PROHIBITION — Judge.</p> <p>The writ of prohibition lies to restrain a judge from proceeding in a cause in which he is disqualified hy reason of interest in the subject matter thereof, although the court over which he presides has jurisdiction of the cause, (p. 212).</p> <p>Pkoi-iibition — Error—Judge.</p> <p>Where a judge of an inferior court who is disqualified hy reason of interest, is permitted to proceed to final judgment or decree, his interest is ground of error for which reversal may he had in the appellate court, and renders the judgment or decree voidable; hut he may be restrained, before judgment or final decree, at any. stage of the case, by the writ of prohibition, and his disqualification may he made to appear upon the motion for the writ, without its having been first pleaded in the court below, passed upon adversely there and then established in the superior court on appeal or writ of error, (p. 213).</p> <p>3. Judge.</p> <p>In order to disqualify, the interest of the judge must be in the subject matter of the cause, and not merely in a legal question involved in it. (p. 214).</p> <p>4. Judge — Error.</p> <p>In determining whether such disqualification exists, the superior court will ascertain what rights and interests are involved in the case and may be subjects of adjudication therein, and, if it be found that the judge has such interest as renders it impossible for him to adjudicate upon all the rights involved, without affecting his own, the writ will be awarded, without inquiry as to whether the parties will, or will not, call for an adjudication upon the particular matter as to which the disqualification exists, (p. 216).</p> <p>5. Judge — Error.</p> <p>An order dismissing the cause or part of a cause, in which a judge is so interested as to disqualify him in respect thereto, entered or allowed by him, on motion of the parties by counsel, without special authority given to said counsel for that purpose, is voidable, and the party having the right to prosecute the cause so dismissed, in whole or in part, is entitled to an adjudication, in the same cause, by a qualified judge, upon the question of his right to have the cause, or so much thereof as has been so dismissed, re-instated under section 11 of chapter 127 of the Code of 1899.- (p. 225).</p> <p>6. Attokhey.</p> <p>The general authority of an attorney does not include power to voluntarily enter, or cause to be entered, an order that perpetually bars the right of his client, such as retraxit. Such act can be done only by the party in person, or by his attorney in pursuance of special authority conferred upon him for the purpose. (p. 227)..</p> <p>7. Judge — Error.</p> <p>The judge of a court obtains a disqualifying interest by talc-ing a lease, together with other persons, upon part of a tract of land against which a suit, instituted by the state, for the sale thereof as school land, and petitions, filed by; a claimant of the title of the land, for the redemption thereof, are pending, and his disqualification is not removed, by the dismissal, as to the part on which the lease is, of the bill and. amended bills, upon the motion of counsel for the state, founded solely upon his admission that such part of the tract is not subject to sale, and the dismissal of the claimant’s petition and amended petition, upon his motion by counsel, founded upon a written renunciation and disclaimer, signed byyhis counsel, (p. 228).</p>

<p>1. Judgment — Demurrer—Error.</p> <p>A judgment., rendered after a demurrer has been filed "by the defendant and overruled, is not one by default, and a motion to correct, for judicial error, made after the close of the term at which judgment was rendered, is properly overruled, (p. 233).</p> <p>2. Judgment.</p> <p>Though such motion cannot be entertained, a writ of error to the judgment may be allowed, (p. 236).</p> <p>3. Judgment.</p> <p>In declaring upon a written instrument, it is sufficient to set forth the promise or obligation according .to its legal effect, (p. 236).</p> <p>4. Amendment — Declaration.</p> <p>When, upon the amendment of a declaration at bar, the defendant is allowed four days, on his own motion, in which to plead, he cannot complain of the brevity of time allowed, especially, if, in fact, about twenty months thereafter elapsed before judgment was rendered against him. (p. 237).</p> <p>5. Demuruer — Amendment—Continuance.</p> <p>Where a defendant, after the overruling of his demurrer, has failed for such length of time to plead, had two continuances, and merely procures the filing of affidavits showing illness and necessary absence, without pleading, or, in any way, disclosing a defense, and without making a formal motion for a continuance, there is no error in failing to continue the case and rendering judgment, (p. 238).</p> <p>6. Continuance — Judgment.</p> <p>Application for continuances are addressed to the discretion of the trial court, and a judgment will not be reversed for> the refusal of a continuance, when it appears that the defendant has unreasonably delayed the disclosure of any defense, and sets up none at the time of the motion, and the facts and circumstances are such as may have satisfied the court that lie is merely seeking delay, (p. 239).</p> <p>7. Surprise — Judgment—Error.</p> <p>Surprise grounded upon accident, mistake or violation of agreement, not brought to the attention of the trial court before the adjournment of the term at which a judgment, after an appearance, was rendered, cannot be relied upon or noticed in the appellate court, (p. 240).</p>

<p>Appeal from Circuit Court, Harrison County.</p> <p>Bill by John Bassell against John G. Caywood and others. Decree for plaintiff and defendant John G. Caywood appeals.</p>

<p>Appeal from Circuit Court, Lewis County.</p> <p>Bill by Ella Clifton against the Town of Weston. Prom a decree disolving an injunction, plaintiff appeals.</p>

<p>Appeal from Circuit Court, Mercer County.</p> <p>Bill by Jennie K. Pence against R. G. Bryant and others. Decree for defendants, and plaintiff appeals.</p>

Action by the Fairmont Plumbing Co. against Lydia E. Carr. Decree for plaintiff for less than the amount claimed, and it appeals.

<p>1. Statutory Limitation's — Widow's Dower.</p> <p>The statutory liar to a widow’s remedies for recovery of dower is ten years from the death of her husband, when her right to sue accrues. But where the widow is in possession and taking rents and profits in common with the heirs, the statute does not run against her dower right while so in possession, (p. 285).</p> <p>2. Statutory Limitations — Widoitfs Will.</p> <p>Where a will devises land to the widow of the testator to hold under her control and management until testator’s youngest child attains majority, with direction to apply its rents and profits to the support of minor children until of age, and the widow is in possession under such will, the statute of limitations does not run against her dower right while so in possession. (p.'288).</p> <p>3. Will — Widow.</p> <p>To bar a widow’s dower right for failure to renounce her husband’s will, the will must malte a provision for ner use and benefit, and must be intended by the testator to be in lieu of dower, (p. 289).</p>

<p>1. Instructions.</p> <p>It is tlie object and office of instructions to define for the jury, and to direct their attention to, the legal principles which apply to, and govern, the facts proved or presumed in the case. The instructions should simply develop the rules of law governing the particular facts, — all the facts, — not a part only, which the evidence tends to establish; and they are to he interpreted and judged of, not in any abstract way, hut with reference to those facts. ,(p. 295).</p> <p>£. Instructions.</p> <p>The instructions given to the jury must he taken together; .and it is not necessary to ipsert in each separate instruction, all the exceptions, limitations and conditions which are inserted in the instructions as a whole, (p. 296).</p> <p>3. Instructions.</p> <p>An instruction which singles out, and gives undue prominence to certain facts, ignoring other facts, proved, and of equal importance in a proper determination of the case, is improper, (p. 300).</p>

<p>1. Marriages.</p> <p>Under sections 1, 3 and 4, chapter 64, Code, all unlawful marriages are made voidable by decree of a court of chancery, (p. 302).</p> <p>2. Marriages.</p> <p>Incestuous marriages will be annulled by such court at the instance of either party although the applicant may have knowingly, wilfully and wickedly entered into the same. (p. 302).</p> <p>3. Marriages.</p> <p>The continuance of such marriage is contrary to good morals and public policy, (p. 202).</p>

<p>1. Office Judgment — Power to Set Aside.</p> <p>Where the plaintiff has filed with his declaration at rules the affidavit required by section 46, ch. 125, Code, the circuit court has no authority to set aside the office judgment regularly entered, until the defendant has pleaded to issue and filed his counter affidavit with his plea, but it is the duty of such court in the absence of such affidavit to enter up judgment on the plaintiff’s affidavit, (p. 306).</p> <p>2. Office Judgement — Affidavit too Late.</p> <p>When che defendant fails to file such affidavit at the first term of court at which such office judgment becomes final he cannot file it at any succeeding term of court, (p. 306).</p> <p>3. Gaming — Chech in Payment of Debt Incurred.</p> <p>The alleged loser in a game of poker gave the winner,, a check for $500.00 payable to an innocent merchant firm. The firm refused to accept it, until the loser promised payment thereof on maturity; such check is not void under section 1, chapter 97, Code, as it represents a debt between the firm and loser with which the winner has nothing to do. (p. 307).</p> <p>4. Gaming — Money Loomed to Pay Debt.</p> <p>The loaning of money to pay a gaming debt not at the time thereof but after such debt has been incurred, is not forbidden by the statute against gaming, chapter 97 Code, even though the lender has knowledge for what purpose the money is going to be used. (p. 308).</p> <p>5. Gaming — Note or Oheoh.</p> <p>A note or check payable to the winner in a gaming transaction is void and no suit can be' maintained thereon even by an innocent holder for value unless the maker has induced the purchase thereof by promising payment. In such case the maker is estopped as against such innocent holder from setting up the gaming consideration for such note or check, (pp. 308, 309).</p> <p>6. Negotiable InstIíument — Solder’s Rights.</p> <p>A bona fide holder for value of a negotiable instrument not void, taken in due course of business, takes the same free from all equities existing between the maker and payee of which he has no notice, (p. 309).</p> <p>7. Reversal — Judgment Given.</p> <p>On a reversal of a judgment if the defendant’s pleas show no defense to the action this Court will render judgment for the plaintiff, (p. 309).</p>

<p>1. Husband and Wife — Deed,.</p> <p>Where a husband owns, in its entirety, one of two adjoining tracts of land and his wife an undivided one-eighth of the other, which she conveys to one of her co-tenants, by a deed, without warranty, in which her husband joins, reciting a description of the division line and one of its termini, different from that given in the deeds by which' the husband obtained his lands, and referring to said terminus as an agreed corner; and, afterwards, by partition, another of her co-tenants obtains that portion of the,-land in which the wife owned a part-', lying adjacent to said boundary line, and sues the husband and wife in ejectment for a small triangular piece of land the title of which depends upon the location of the division line, in the absence of title by adverse possession, the husband having conveyed his land to his wife in the mean time; the defendants are estopped by the recitals in their deed from relying upon the description of the division line contained in the deeds under which they claim, and cannot use said deeds as evidence of the location of the disputed line, if objected to by the plaintiff, (p. 316).</p> <p>2. Real Peopekty — Description,—Boundaries.</p> <p>The description of. the corner in controversy, contained in the deed executed by the defendanfs, reads as follows: “Beginning opposite Uriah White’s house in the middle of Dry Pork at an agreed corner between Thomas S. White, deed, and Uriah White.” Held: That as the description calls for no monument, which can be ascertained by mere inspection, and without measurement or calculation, and, opposite Uriah White’s house Dry Pork is claimed to have two channels over thirteen poles distant from each other, in either of which, the point may be, as determined by the evidence, the description does not import such certainty of location as to estop the defendants from introducing evidence tending to show that the corner in question is not' a certain rock in one channel of Dry Fork, as claimed by the plaintiff, and the court properly overruled plaintiff’s motion to strike out such evidence, (pp. 310, 317)..</p> <p>3. Reap Property — Instruction—Error.</p> <p>As the defendants had, by their deed, recognized and admitted the title of the plaintiff, it was error to instruct the jury, on the trial of the issue above stated, that the plaintiff must show title derived from the Commonwealth of Virginia or this State, or make out a title by adverse possession under color of claim of title, ip. 820).</p> <p>4. Ejectment — Title.</p> <p>When the defendant in an action of ejectment sustains such relation to the plaintiff as estops him from denying the title of the latter, the general rule, that the plaintiff must recover, on the strength of his own title, and make out a' chain of title from the State, is inapplicable, (p. 321).</p> <p>5. Reap Property' — Title—limitation.</p> <p>Actual, open, continuous, exclusive and hostile possession of land, for a period of ten years, under color or claim of title, confers a perfect title, upon which an action may be either defended or prosecuted, and which is not destroyed bV mere abandonment of possession after such holding for such period of ten years, unless some other person has obtained title to the land, while such abandonment continued, by like possession for a like period, (p. 324).</p> <p>6. Real Property — Tittle.</p> <p>Where the plaintiff relies upon such title, it is error to instruct the jury that such adverse possession must continue, without interruption, to the time of the institution of the action, if the evidence tends to show the completion of the required period of adverse possession long before the action was commenced, (p. 322).</p> <p>7. Deed — Warranty—Title.</p> <p>A deed without a covenant of warranty estops the grantor from asserting, against the grantee, any title to the land he had or claimed, at the time of its execution, (p. 31S).</p> <p>8. Deed — Covenant—Title.</p> <p>A deed with covenant of general warranty estops the grantor from asserting, against the grantee, any title to the land he had or claimed, at the time of its execution, and also passes to the grantee any title to the land, that the grantor may acquire afterwards, (p. 319).</p>

<p>1. Fraudulent Conveyance.</p> <p>A suit to set aside a’ fraudulent conveyance under section 2 of chapter 133 of the Code of 1899, instituted for a legal demand by a creditor at large before the debt on which it is predicated becomes due and payable, cannot be sustained. Inadvertent rulings to the contrary in Chrislip v. Teter, 43 W. Va. 356, and Banlt v. Prager, 50 W. Va'. 660, are disapproved, (p. 330).</p> <p>2. Bill — Pleadings—Dismissal.</p> <p>In such case, though the bill may be sufficient under section 1 of chapter 106 of the Code, it is proper to dismiss it on demurrer, if an at bachment has not been sued out under it, before such' dismissal, (p. 330.)</p> <p>3. Btlt. — Decree.</p> <p>But it is error to so dismiss such a bill without inserting in the decree a clause, saving to the plaintiff the right to prosecute any other proper suit in respect to the matters complained of in the bill, or showing that the cause had not been decided on its merits, as such decree, without such' clause, would be a bar to a subsequent suit predicated upon-tbe same facts, (p. 331).</p> <p>4. Jurisdiction — Decree—Bar.</p> <p>Where a party brings a suit in equity which cannot he entertained for want of jurisdiction, and permits such' a decree to he entered, without objection, as would bar another suit for the same matter, he is not entittled to costs in the appellate court upon a reversal of the decree. In such case, he is not the party substantially prevailing in the true sense of the terms, (p. 334).</p>

<p>1. Contract — Sale—Title.</p> <p>Though in a contract for tlie sale of land a privision for payment on a day be made of the essence of the contract, yet if the vendor is not then able to pass good title, equity will relieve against a failure to pay on the day, and enforce performance at the instance of the vendee, (p. 339).</p> <p>2. Contract — Title—Sale.</p> <p>Where a contract for the sale of land makes payment on a day of the essence of the contract, but also requires the vendor to make a deed simultaneously with payment, the covenant for payment and that to make a deed are mutual and dependent, and if the vendor do not make, or offer to make, a deed on the day, equity will disregard the failure to pay on the day, and enforce the contract at the instance of the vendee, (p. 341).</p> <p>3. Contract — Title—Sale.</p> <p>Though a contract for sale of land make payment on a day of its essence, yet the vendor may waive compliance with it, or after failure to pay on the day continued recognition by him of the contract as still binding is a waiver of strict compliance, (p. 342).</p>

<p>1. Fire Insurance — Policy—Cancellation.</p> <p>A Are insurance policy gives right to the company to cancel it on five clays notice. The company instructs its local agent to take up the policy for cancellation, and the agent informs the assured that the company elected to cancel the policy, and stated to him that he would procure him a policy in another company for which he was agent. The assured with this understanding delivered up the policy to the agent for cancellation, and the agent delivered it to the company, and it was canceled by it. Held, that the policy was thereby cancelled, (p. 346-348).</p> <p>2. Fran InstiraNCEI — Policy—Cancellation.</p> <p>An insurance agent directed by his company to 'take up for cancellation a policy of insurance has no' power to take it up with a condition that he would get for the assured a policy in another company, and the surrender of the policy to such agent for such cancellation on such condition is an absolute cancellation. (p. 348).</p>

<p>1. License.</p> <p>The general rule is that a contract in violation of law is void; but where the statute requires a license “to practice the business of stock or other broker, by buying or selling for others, stocks, securities or other property for a commission or reward” and imposes a penalty for a violation thereof, a contract of real estate agent to sell real estate for another for commission or reward in violation of such requirement is not for that reason absolutely void. (p. 360).</p> <p>2. License.</p> <p>Unless it clearly appear that the legislature intended more it will be held that the penalty exposed excludes all others, (p. 360).</p> <p>3. Syllabus Approved.</p> <p>Kennedy v. Ehlen, 31 W. Va. 540 (syl. point 3), approved and reaffirmed, (p. 363).</p>

<p>1. Divokce — Alimony.</p> <p>In a suit for divorce the question of allowances to the wife for maintenance pendente lite and to enable her to carry on the suit, tOi he paid by the husband, is within the sound discretion of the court or judge in vacation under section 9, chapter 64, Code, and the exercise of this discretion, which is a very broad one, will not be reviewed unless it is made to appear that it has been, grossly abused, (p. 371).</p> <p>2. Divokch — Alimony—Receiver.</p> <p>Wherein a suit for divorce and alimony hy a wife the allegations of the hill and the record show the defendant to he the possessor of an estate worth from $75,000 to $80,000, composed largely of real estate, and the defendant has been enjoined in the suit from disposing of any of his real estate and has responded to an order in the cáuse requiring him to pay a specified sum for temporary maintenance of plaintiff and expenses of carrying on her suit. I-Ielcl, the appointment of a special receiver hy the judge in vacation to take charge of the personal property of the defendant is an abuse of judicial discretion, (p. 372).</p> <p>3. Tbtjst Company.</p> <p>When a Trust Company which is properly doing business under the laws of this State shall be appointed a special receiver in any case or proceeding it is not required to give bond; the capital of such company, together with any deposits required to be made by it, with any officer or officers of the State, whether such deposits be a part of said capital or not, are to be taken and considered as the security required by law for the faithful performance of its duties, (p. 373).</p>

<p>1. .Decree — Reversal—Necessary Parties.</p> <p>If, in any way, it tie sli'own by the record that the final decree was rendered in the absence of necessary parties, such decree will be reversed and the cause remanded in order that proper parties may be made. (p. 381).</p>

<p>Error to Circuit Court, Wetzel County.</p> <p>Action by B. B. Newman and others against A. C. Ruby. Judgment for plaintiffs, and defandant brings error.</p>

<p>1. Raileoad Charter.</p> <p>The terms' of statutes providing for the organization of railroad companies, and the extension of lines of existing companies, requiring designation, in the articles of incorporation, and certificates for extensions, of the termini of railroads and extensions thereof, to he constructed hy companies, organizing and existing under them, are liberally construed in favor of the companies, and substantial compliance therewith is sufficient. (p. 389).</p> <p>2. Railroad Charter — Resolution.</p> <p>A railroad company, duly organized under the general laws of this state, desiring to extend its line, as it may do, under section 53 of chapter 54 of the Code of 1899, after filing, in the office of the Secretary of State', a certificate, stating “the point at or near which such extension in this state shall commence and terminate,” passed, at a meeting of its stockholders, and1 certified and filed, as aforesaid, the following resolution:</p> <p>"Resolved, That the road be extended from its present terminus named in articles of incorporation and charter, at or near the village of Glen Jean, and near the junction of White Oak Fork of Dun Loup Creek, with said Dun Loup Creek in the county of Fayette, state of West Virginia. Said extension hereby authorized passes through the counties of Fayette, Raleigh, Wyoming, Mercer, Summers and Monroe, West Vir-giniai, to a point on the state line on the line of Craig, Alle-ghany or Giles counties, Virginia, said extension to be located on the most practicable route from the present terminus at or near Glen Jean, in the county of Fayette, West Virginia, up the Valley of Dun Loup Creek, and its tributaries into the county of Raleigh, thence through Raleigh County by the most practicable route to the county of Wyoming, thence through Wyoming County by the most practicable route to the county of Mercer, thence through the county of Mercer to the Bluestone River, thence down the same by the most practicable route to New River, in the county of Summers, thence with New River and its tributaries by the most practicable route through the county of Summers to the county of Monroe, to a point on the state line and on rhe line of Craig, Alleghany or Giles Counties, Virginia, said extension to he located on the most practicable route as shown on the maps and profiles filed as required by law, and that the foregoing resolution shall he filed with the' secretary of state of West Virginia, as the certificate of extension as required under chapter 54 of the Code of West Virginiai.” Held: That said resolution designates, with sufficient certainty, the termini of the proposed extension, (p. 390).</p>

<p>1. Pleading — Declaration.</p> <p>It is only necessary to state facts, and never is it necessary to aver matter of law in declaration. (Hogg’s Plead. & Forms, 59). (p. 398).</p> <p>2. Pleading.</p> <p>Surplusage in pleading does not vitiate. (Idem), (p. 398).</p> <p>3. Negligence — Question for Jury.</p> <p>Where there is no controversy as to the facts or inferences that may he fairly drawn from them, the question of negligence is one of law for the Court. Where such is not the case, the question is for the jury. (p. 398).</p> <p>4. Electric Companies — Negligence.</p> <p>It is the duty of electric companies to use very great care to Keep the insulation of its dangerous wires perfect at places where people have a right to go for work, for business or for pleasure, (p. 399).</p> <p>5. Electric Company — Negligence.</p> <p>When injury to a person comes from contact with ‘a live electric wire from had insulation at a place where there ought to be good, safe insulation for safety to persons, it is a case of negligence on the part of the electrical corporation rendering it prima facie liable, (pp. 399, 400).</p> <p>6. Negligence.</p> <p>If one take hold of an electric wire at a place where it ought to be safely insulated for safety to persons, and is injured by reason of defective insulation, he not knowing its defect, he is not from so doing guilty of contributory negligence forbidding recovery of damages, (p. 401).</p> <p>7. Electric Company — Negligence.</p> <p>One coming in contact with' a live electric wire in discharge of duty, will not, on account of so coming in contact, be guilty of contributory neglegence, if it was the duty of the corporation to properly insulate the wire at the place of injury, and it has neglected to do so, and the person knows not the defect of insulation, (p. 403).</p> <p>8. Electric wire.</p> <p>In places where electric wires should be insulated for safety to the persons, one may assume that they are so insulated, if he know not to the contrary, (p. 403).</p> <p>9. Electric Company.</p> <p>A corporation or person operating a plant for electric lighting must anticipate injury as likely to happen to persons from contact with its wires by reason of defective insulation at places where the law requires such insulation, (p. 403).</p> <p>10. Verdict.</p> <p>The verdict of a jury in an action for death from wrongful act can not be set aside for excessiveness in an amount under $10,000, their assessment being final, unless the verdict be the result of passion, prejudice, partiality or corruption on the part of the jury. (p. 405).</p> <p>11. Witness — Testimony—Error.</p> <p>The refusal of a court to permit'a' witness to answer a question will not be considered in the appellate court, when it ‘ is not stated or shown what it was expected the answer would be, unless the question very clearly imports what such answer must be. (p. 406).</p>

<p>1. Jurisdiction — Cancellation.</p> <p>W. and M. his wife, conveyed to their two sons, T. and E. their farm of 168 acres with general warranty, except that the grantees should pay to the grantors within sixty days from the delivery of the deed $100, each; in consideration that the grantees hind themselves to provide for and take care of the grantors during their natural lives respectively, "and to furnish them whatever necessaries they may need as it regards eatables or clothing, medical aid etc., and to furnish them a good nurse whenever they may need one and they depart this life to have them buried accordingly to the rules of civilized siciety” and it provided further that if the grantees should fail to perform any of their several agreements "when it is possible for them to do them, then this deed is to he null and viod and revert back to the said grantors with full possession. Said grantors hereby reserves possession of the above named land until the death of each, of them.” Held': That a court of equity will take jurisdiction of a bill filed by the heirs of W. deceased, to set aside and cancel the conveyance for failure on part of the grantees to comply with thé conditions of the conveyance. (p. 408). 1</p>

<p>1. Conveyance — Fraud.</p> <p>Where the grantee in a deed made to defraud the creditors of the grantor knows of the fraudulent intent of the grantor, or has notice of facts sufficient to excite the suspicions of a prudent man and put him on inquiry, he makes himself a party to the fraud, (p. 418).</p> <p>2. Fraudulent Conveyance.</p> <p>T. and his wife conveyed to U., the brother of the wife of T., a house and lot in the city of Parkersburg, being all th'e estate owned by T., in consideration of $1900, assumed to be paid on the indebtedness of T. by U., the grantee; six hundred and sixty-five dollars of which was the balance due on a trust debt on the property conveyed and the residue of the consideration was made up of negotiable paper of T. mostly endorsed by TJ., a part endorsed by the brother of IJ., and most of it long past due and under protest. No lien was retained on the property conveyed to secure the payment of the notes so assumed by U.,.and U. made no inquiry as to any other indebtedness oí T. and left T. in possession of the property free of rent, with authority to sell the same, and the excess over $1900, for which it might be sold by T. was to go to the wife of T., the sister of U. Held: Such' conveyance is made in fraud of the creditors of T. and is void as to creditors, (p. 419).</p> <p>3. Syllabus Approved.</p> <p>Livesay v. ’Beard, 22 W. Va. 585, syl. points 8 & 12, reaffirmed, (p. 420).</p>

<p>1. Public Hoads.</p> <p>Public roads and highways are common property of all the people and for their obstruction the statute gives a remedy by indictment, (p. 429).</p> <p>2. Syllabus Adproved.</p> <p>Talbott v. King, 32 W. Va. 6, (syl. point 1), reaffirmed, (p. 429).</p> <p>3. Public Roads.</p> <p>A private individual who is injured by the obstruction of a public road, cannot, by a suit brought on behalf of himself and all others who are similarly situated, who would come into the suit and contribute to its costs, enjoin such obstruction os a public nuisance, (p. 429).</p> <p>4. Public Roads — Nuisance.</p> <p>When the alleged nuisance is of a public character the court will consider the injuries which may result to the public by granting the injunction, as well as the injuries to be sustained by the plaintiff in refusing it. (p. 430).</p> <p>5. Public Nuisance — Injunction.</p> <p>When the public benefit derived from the thing complained of outweighs the private inconvenience an injunction will not be granted, (p. 431).</p> <p>0. Public Nuisance — Injunction.</p> <p>Courts should exercise great caution in enjoining acts alleged to constitute public nuisances at the suit of private parties lest in protecting the latter much greater injury be done to the public, (p. 431).</p>

<p>L. Contract — Refusal to Perform,.</p> <p>If during performance of a contract, or after the time for performance arrives, one of the parties, by word or act, openly and clearly refuses to perform his promise in whole or in part, the other party is thereupon exonerated from performing his part'of the contract, (p. 440).</p> <p>2. Decree — Justification.</p> <p>When a court, by its decree or judgment, deprives one person of his money or property to be paid or delivered to another, such action should be warranted by sufficient legal justification, Held: In this case, the evidence does not support the decree, (p. 440).</p>

<p>1. Tax Sale — Assignment of Certificate.</p> <p>A person, holding a vendor’s lien on a certain tract of land, which has been sold for the nonpayment of the taxes, proposes to the purchaser, within the year of redemption, to redeem the same; and such purchaser informs him that a subsequent lienor has demanded the right to and is going to redeem, and he afterwards informs the subsequent lienor that the prior lienor wanted to redeem, but that he preferred to allow him to make the redemption. He is then induced by such subsequent lienor, who was fully aware that the prior lienor expected him to make the redemption, to execute an assignment to him of the sheriff’s certificate on payment of the redemption money, which assignment is kept secret, and no notice thereof, either by the purchaser or the subsequent lienor, is given to the prior lienor until the redemption period has elapsed —a court of equity, on application of the prior lienor, will hold such assignment to be a mere redemption of the property, and will enjoin the subsequent lienor from obtaining a deed therefor from the clerk of the county court, (p. 443).</p> <p>2. Redemption — Fraud.</p> <p>If a purchaser of delinquent lands represents to a prior lienor, desiring to redeem the same, that a subsequent lienor demands the right to and is going to make such redemption, and after-wards such purchaser secretly assigns the sheriff’s receipt to such subsequent lienor, and fails to advise the prior lienor of such assignment until too late for him to make redemption, such conduct on the part of the purchaser is fraudulent, and, if the subsequent lienor knowingly accepts and retains the benefits of such fraud, he will be held equally guilty with the purchaser, especially if he is the moving cause of such purchaser’s conduct though he may be entirely free from intentional wrong or mala fieles, (p. 444).</p>

<p>Husband and Wipe — Fraudulent Conveyance.</p> <p>When a wife claims, in a contest against the creditors of her husband, to have purchasd and improved real estate, there is a presumption against the bona fides of the transaction, which she cannot over come except by clear and full proof that the property and improvements were paid for by her with money derived from some source other than her husband, (p. 460).</p> <p>2. Feadulent Conveyance.</p> <p>Fraud is to be legally inferred from the facts and circum-. stances of the case, when they are such as to lead a reasonable man to the conclusion that the property was purchased and improved by the husband with intent to hinder, delay or defraud existing or future creditors, (p. 461).</p> <p>3. Fraudulent Conveyance.</p> <p>When, in such case, the transaction is attacked by a subsequent creditor, upon the ground of actual fraud, the fact that the transfer or conveyance is not upon a consideration deemed valuable in law may be treated as evidence of the fraud, and need not be alleged in the bill. (p. 462).</p> <p>4. Depositions — Agreement. .</p> <p>In the absence of an agreement to the contrary, depositions taken in one suit cannot be used in another, unless the parties are the same, or are in privity, and the subject matter of the suits is also the same. (p. 462).</p> <p>5. Depositions.</p> <p>A deposition taken by the defendant in a suit brought by one creditor to set aside a fraudulent conveyance, cannot be used by the defendant in another suit brought by another creditor to impeach the same conveyance, unless by agreement, (p. 462).</p>

<p>1. Adminibtkaxoi;) — Notice—Debt.</p> <p>Wliere an administator, having no notice of a debt against the-estate of his intestate, makes distribution of the estate, and is afterwards compelled to pay the debt, and there is' no fraud or improper conduct imputable to him, respecting either creditor or the distributees, he may, in equity, compel the dis-tributees to refund to him the amount of the debt, interest and costs which he has been compelled to pay, and his expenses in the defense of the suit, although he has taken no refunding bond. (p. 472).</p> <p>2. Ancillary Administr/'i'or.</p> <p>When the -pri-noiplj/ administrator of an estate has been appointed and resides in another state, and an ancillary administrator has been appointed in this state, and such ancillary administrator has, in ignorance of a, debt against the estate of his ’intestate, turned the assets over to the principal administrator, and the principal administrator has made complete or partial distribution thereof, and the ancillary administrator is compelled to pay such debt out of his own funds, and is not guilty of any fraud or improper conduct, he is entitled to reimbursement by the distributees, and he is not compelled to go to the foreign, jurisdiction to obtain such relief, if any of the distributees have property within this state, sufficient to reimburse him, and he may proceed by foreign attachment against such property, but his recovery against the distributee will be limited to the amount which the distributee has received from the estate, (p. 472).</p> <p>3. Administrator.</p> <p>While it is necessary, when all of the distributees are within the jurisdiction of the court in which the administrator is entitled to proceed for such relief, that all of them shall be made parties, to the end that they shall contribute ratably and that it may not be in the power of the administrator to throw th'e whole liability upon one of them in the first instance, yet, when they are not all within the jurisdiction of the court, he may sue such of them as are within the reach of the court’s process, and, if they are all non-residents and any af them have property within reach of such process, it may be subjected by attachment in a suit in equity, (p. 473).</p> <p>4. AdmihistratoR — Reimbursement.</p> <p>The administrator’s right to reimbursement is riot limited to payment out of the specific money or property received from the estate by the distributee, and any property belonging to the distributee which is liable for his debts generally, may be subjected, but not for a larger amount than he has received from the estate, (p. 476).</p> <p>5. Non-Resident Administrator.</p> <p>Where tire affidavit for attachment and other papers in the cause show that the defendants are non-residents, and no order of publication has been taken on return day of the process, the plaintiff is entitled to a reasonable time in which to perfect his suit by order of publication, and the suit does not abate immdiately upon the return of the process and failure to take the order of publication, (p. 476).</p> <p>6. Order oe Publication.</p> <p>A general appearance by any of the non resident defendants renders an order of publication unnecessary as to such of them as appear, (p. 476).</p>

<p>1. Oil Lease — Adverse Claimants.</p> <p>If two adverse claimants thereto, make independent leases to the same company for the oil and gas under a certain tract of land in consideration of oil royalties and gas rentals reserved in each q{ guch leases, the subsequent lessor cannot sue the prior lessor in equity to recover from him the royalties and rentals received by him under his lease, (p. 486).</p> <p>2. Conveyance of Title — Quieting Title.</p> <p>A claimant out of possession cannot convey his title to the holder of the adverse title in possession and then sue the grantor of such adverse title in equity to cancel the title papers of such adverse title as a cloud on the title which he has conveyed to the holder of such adverse title, (p. 488).</p> <p>3. Equity — Jurisdiction.</p> <p>Allegations of irreparable damages, which show on their face that they are mere pretexts, will not sustain a bill in equity, (p. 489).</p>

<p>1. Computation of Time — Appeal.</p> <p>Tlie time of tire pendency of an appeal from a decree is not to be excluded in computing the period of limitation to a hill of review based on newly discovered evidence, (p. 497).</p> <p>2. Limitation to Bills of Review.</p> <p>In excluding the time of the pendency of an appeal in computing time limiting a bill of review for error of law, does the exclusion begin at the allowance of the appeal or the date of the bond required to perfect it? (p. 497).</p>

<p>1. Deeds — Covenants—General Warranty.</p> <p>A covenant of general warranty in a deed for land relates to title, not quantity, and does not warrant qimntity, BurToriilge v. Sadler, 46 W. Va’. 39, (syl. pt. 6). (p: B00);.:</p> <p>2. Deficiency in Quantity — Remedy at Law.</p> <p>A claim for compensation for deficiency in quantity of land conveyed by deed, wh'ere tbe purchase money has been paid, is a mere personal demand, not cognizable only in equity, but in law, and is subject to the Statute of Limitations. Burdridge v. Sadler, 46 W. Va. 39, (syl. pt. 4).</p> <p>3. Limitations — Equity.</p> <p>In a chancery cause for the enforcement of a legal claim where a court of law and a court of equity have concurrent jurisdiction, the statute of limitation will be given effect upon demurrer when it plainly appears on the face of the bill that the statute applies in the case.</p>

<p>1. County Road — Discontinuance.</p> <p>Under section 30, chapter 43, Code, the county court may discontinue the portion of a county road made highly dangerous to the traveling public by the legal occupancy and use thereof by a railroad, and their discretion in so doing cannot he controlled by prohibition, (p. 503).</p>

<p>Error to Circuit Court, Tyler County.</p> <p>Action by John O’Hanlin against -tbe‘ Carter Oil Company. Judgment for plaintiff, and defendant brings error!</p>

Action by Charles L. Giebell, a minor, by Florence Giebell, Ills next friend, against Creed Collins and C. \Y. Sprinkle, partners under the firm name of the Collins Company. Judgment for plaintiff, and defendants bring error.

<p>1. Oil Lease — Payment of Royalty — Parol Evidence.</p> <p>Where several owners in fee of contiguous tracts of land lease the whole as one tract for oil and gas purposes, and the one-eighth royalty oil is to be paid by the lessee in the usual way by running the same into the pipe lines to the credit of “the parties of the first part” (the lessors) and the lease is silent as to the division of the royalty between the lessors, and where the development is all on one tract owned in severalty by one of the lessors, who claims to be entitled to all the royalty, upon interpleader of the lessee for determination as to whom to pay the royalty as between the lessors, parol evidence is admissible to prove a contemporaneous agreement between the lessors that the royalty should be paid and delivered to the owner of the particular tract from which the oil is produced. (p. 538).</p>

<p>1. Will.</p> <p>Under section 6 of chapter 77 of the Code of 1899, a will made by a man is revoked by his subsequent marriage, although made in contemplation of marriage and containing clauses by which provision is made for a wife in case he shou’d have one living at the time of his death. ' (p. 546).</p> <p>2. Will — Marriage.</p> <p>Said section was substituted for the common law rules governing revocation by marriage and marriage and birth of issue, for greater stability of titles and property rights, and, to effectuate the legislative intent, it must be enforced as written, without exception, (p. 547).</p> <p>3. Will — Husband and Wife.</p> <p>In adopting said section together with section 8 of said chapter, providing for revival by re-execution or codicil, the legislature did not impair the right to dispose of property by will. It only prescribed a reasonable regulation for the exercise thereof, (p. 552),</p> <p>4. Wrix — Codicil.</p> <p>A codicil, to effect the revival of a revoked will under section 8 of chapter 77 of the Code, must show an intent to revive, hut any language therein from which such intent may reasonably he inferred, such as a reference to the will by date, or as being the will of the tetstator, in the absence of contradictory matter found on the face of the codicil or in the surrounding circumstances, is sufficient. It need not show that the testator knew the will had been revoked, nor contain words of express revival, ratification or confirmation of the will, (page 554).</p> <p>5. Will — Codicil—■Executor.</p> <p>A duly executed codicil in the following terms: “I, J. C. M., do make this a codicil to my will made on the 6th day of August, 1895, I do nominate and appoint J. B. W. as one of the executors of my will and do hereby revoke the appointment of W. R. J. to said will,” revives the will therein referred to. (p. 559).</p>

<p>1. DECREE — Jurisdiction—Dismissal.</p> <p>A decree, upon a full tearing upon the merits, dismissing a hill in which' two distinct causes of action between the same parties are united, one purely legal and the other purely equitable, containing no clause saving to the complainant her remedies as to the former cause of action, and failing to state, or in any way make it appear, th'at, as to it, the dismissal was for want of jurisdiction, is erroneous, (p. 561).</p> <p>2. Appeal — Cost—Jurisdiction.</p> <p>In such case, the complainant is not estopped from denying the jurisdiction of the court below on appeal, but costs in the appellate court will be decreed' to the appellee, as the party substantially prevailing, if the appellant has failed to ask for the insertion of such saving clause in the trial court, (p. 563).</p>

<p>1. Railroad — Damages—Live Stock.</p> <p>B. shipped twenty-four head of cattle at Rollyson station, in Braxton county, over the B. & O. R. R. to Baltimore, Md. On the day of shipment B. and the company made and signed a contract, which, among other things, provided, “That in the event of any unusual delay or detention of said live stock, caused by the negligence of the said carrier, or its employes, or its connecting carriers, or their employes, or otherwise, the said shipper agrees to accept a full compensation for all loss or damage, sustained thereby, the amount actually expended by said shipper, in the purchase of food and water for the said stock while so detained.” Held, That the company cannot, by said contract, or any of the provisions thereof, exempt itself from the liability for loss or damage, occasioned by the plaintiff, which was, in any degree, caused by the negligence or misfeasance of itself or its servants, (p. 577).</p> <p>2. Railroad — 'Negligence—Jury.</p> <p>/ On proof of a delay in the delivery of the cattle by the company at the place of their destination, a prima fade case was made out against it, and the burden of proof then rested upon it to show that it was not responsible for the delay; and the question as to the reasonableness and sufficiency of the excuse, which the carrier made for the delay was for the juryy'Cp. 580).</p> <p>3. Jury — Verdict.</p> <p>Wherp a case has benn fairly submitted to a jury, and a verdict fairly rendered, it ought' not to be interfered with by the court, unless manifest wrong or injustice has been done, or unless the verdict is plainly not warranted by the evidence, (p. 580).</p>

<p>1. Appeal — Limitation!—J uclgmeni.</p> <p>The date of a decree or judgment, as shown by the record, marks the poinL of time from which the statute of limitation governing an appeal from, or writ of error thereto, commences to run. (p. 584.)</p> <p>2. Widow — Executrix—Will.</p> <p>Where a widow is executrix of the will of her late husband, and claims certain real estate under the will as a devisee therein, and also claims it as her individual property upon a resulting trust, as against her husband’s estate, she may set up her individual claim to said property in a bill filed by her to construe the will, and settle the estate, (p. 588).</p> <p>3. Laches.</p> <p>Laches is inexcusable delay in asserting a right, and is an equitable defens'e, controlled by equitable considerations. To be a bar, the lapse of time must be so great, and the relation of the defendant to the right such that it would bo inequitable to permit the plaintiff to assert it, where he has had, for a considerable' period, knowledge of the existence, or might have acquainted himself with it, by the use of reasonable diligence, (p. 590).</p> <p>4. Syllabus Approved.</p> <p>Point 1 in Bierne v. Ray, 49 W. Va'. 129, and in Sayre v. Ilar-polcl, 33 W. Va. 553, approved and applied, (p. 590).</p> <p>5. Evidence — Error.</p> <p>Where exceptions to a part of an answer are sustained, and the defendant does not ask leave to amend his answer, it is not error to proceed to hear the case on the bill, and so much of the answer as is not expected to. (p. 595).</p> <p>6. Wipe’s Separate Estate.</p> <p>Where the husband buys land with the wife’s money, and with her assent, but without her knowledge or consent, takes the title to the property to himself, and such facts are established by clear and satisfactory proof; and the transaction is free from fraud against creditors, equity will treat the property as her separate estate, and establish a resulting trust in her favor, good both as against the husband and his creditors, (p. 596).</p>

<p>1. Raileoad — Assent from Town Council.</p> <p>Assent from town council to a railroad company authorizing the occupation of the streets of such town under section 10, chapter 52, Code, is not a franchise within the meaning of chapter 29, Acts 1901. (p. 599).</p> <p>2. Raileoad — Repeal of Orders Relating to.</p> <p>An injunction is not the proper remedy to prevent the council of a town from repealing orders granting assent to the occupation of the streets of the town. (p. 599).</p> <p>3. Raileoad — Injunction to Prevent Destruction of Track.</p> <p>Where a railroad company has lawfully laid its track through the streets of a town an injunction will lie to prevent the town authorities from tearing up or removing such track, (p. 599-,</p>

<p>Appeal from Circuit Court, Éandolph. County.</p> <p>Petition by D. D. Ha.zeltine against L. H. Keenan and others. Decree for plaintiff, and certain defendants appeal.</p>

<p>1. Partition Bill — Bale.</p> <p>Upon a bil] purely and only for partition of land in kind between parceners, asking no sale for costs, or other cause, there can be no sale for costs, and a decree of sale is void, not simply erroneous. A sale and conveyance under it confer no title, (p. 612).</p> <p>2. Pleadings — Decree.</p> <p>Where there is no pleading to warrant a decree, or part of a decree, the decree, or such part of it, is not merely voidable, but void, as it is not on a matter in issue, (p. 613).</p> <p>3. Pleadings — Decree.</p> <p>Where the subject matter and purpose and nature of a suit are such as not to warrant a given decree, but the decree is foreign thereto, it is null and void. (p. 614).</p> <p>4. Bilí, — Decree.</p> <p>A prayer for general relief will authorize a decree upon maf' ter of the bill, though such decree is not asked by a prayer for specific relief; but not unless the matter of the bill warrants the decree in law. (p. 614).</p> <p>5. Court Jurisdiction — Decree.</p> <p>While a court of equity having jurisdiction for one purpose may go on and give full relief as to all matters comprehended under the allegations of fact in the pleadings, yet it is limited in its relief to the allegations of the bill or other pleading, and1 can not decree beyond their scope, (p. 614).</p> <p>6. Final Decree.</p> <p>After a final decree at one term giving the full relief warranted by the facts stated in the bill, the case is ended and out of court, and the court has no further jurisdiction of the subject matter or parties, and all orders and decrees at a later term are null and void. (p. 615).</p> <p>7. Married Woman — Separate Estate.</p> <p>A decree selling in fee land of a married woman not separate estate, for debt made during coverture, is wholly void, and passes no title. A decree selling in fee the separate estate land of a married woman for a debt made during coverture and before chapter 3, Acts 1893, Code 1899, chapter 66, section 15, is wholly void and passes no title, (p. 615).</p> <p>8. Decree — Error.</p> <p>A decree which is void, not merely erroneous, may be attacked directly by appeal or bill of review, or by collateral attack. (p. 616).</p> <p>9. Partition Suit — Creditor.</p> <p>In a suit purely for partition of land, unless a sale and distribution of its proceeds are sought, p. trustee and creditor in a deed of trust are not necessary parties, (p. 616).</p> <p>10. .Married Woman — Separate Estate.</p> <p>A married woman cannot lose her land, separate or not separate estate, by estoppel by conduct (in pais) without actual fraud, if even by it. (p. 616).</p> <p>11. Land — Title.</p> <p>One cannot lose vested title to land by oral admission that it is the property of another, (p. 617).</p> <p>12. Laches — Separate Estate.</p> <p>Laches cannot be imputed to a married woman to defeat her suit for land not her separate estate, (p. 617).</p> <p>13. Laches.</p> <p>Laches will not defeat a suit for land when the edverse claimant is not in actual possession, (p. 617).</p> <p>14. Laches — Statute of Limiltations.</p> <p>Where one is vested with legal title to land laches will not defeat a suit for it when the right is yet not barred by the statute of limitations applicable to it. (p. 617).</p> <p>15. Married Woman — Separate Estate.</p> <p>Adverse possession of a married woman’s land not her separate estate, beginning during coverture and continuing for the term of the statute of limitations, will bar the wife s and husband’s right during coverture; but though the right during coverture is barred, the wife or those claiming under her has five years after the coverture ends to sue for the land. (p. 618).</p> <p>16. Married Woman — Constructive Possession.</p> <p>Waldron has actual possession of a tract of her land, and Nighbert has actual possession of a tract of his land. A part of Waldron’s land is sold under a decree void, not merely voidable, and is purchased by Nighbert. The part sold adjoins the land of Nighbert, and also the remaining land of Waldron. Neither ever has actual possession within the part so sold. By law the constructive — actual possession of Waldron over the part sold commencing before the void sale continues after it, and JSTighbert has no constructive — actual possession of the part sold so as to tie adverse to Waldron and bar Waldron s title by limitation, (p. 618).</p> <p>17. 'Judicial Sale — Title.</p> <p>A deed for land to a purchaser under a judicial sale, though the decree is without jurisdiction and void, is color of title for adverse possession, and actual possession under it is adverse to the owner of the land. (p. 619).</p> <p>18. Adverse Possession.</p> <p>Possession by a purchaser under a judicial sale not wholly void is adverse to the owner, (p. 619).</p> <p>19. Delinquent Land — 8alei</p> <p>Passing the state title' to forfeited land to another claimant, under the Constitution, article 13, section 3. (p. 619).</p> <p>20. Judicial Sale — Adverse Possession.</p> <p>Payment of taxes by purchaser under a void judicial sale enures to the benefit of the former owner, so as to save his title from forfeiture for failure to enter it upon the tax books in his name. (p. 619).</p> <p>21. Jurisdiction — Equity Title.</p> <p>Equity has jurisdiction to remove cloud over title to land by vacating a void judicial sale and a deed under it, the former owner being in actual possession, (p. 620).</p> <p>22. Bona Fide Purchaser — Jurisdiction.</p> <p>A purchaser of land from a purchaser under a decree void for want of jurisdiction is not a l)ona fide purchaser without notice. He is bound to know the want of jurisdiction and defect of title apparent in documents under which he derives title, (p. 612).</p>

<p>1. Personal Representative.</p> <p>A personal representative who, within six months after the end o'f any one year of his service as such, has fully explained to the parties entitled to the money received in such year, verbally and by informal written statements, the amount so received together with the sources from which it came, and the amount disbursed, including charges of administration, and has actually paid to such parties all they are entitled to receive on account of such money, is entitled to compensation for his services for such year, in respect to the interest so settled for and paid, (p. 638).</p> <p>2. Guardian and Ward.</p> <p>When the parties entitled are infants, and the personal representative has neither given their guardian a complete statement in writing, nor paid the money over to the guardian, within the time aforesaid, but has only given information verbally and by informal memoranda to the guardian, concerning the receipts for the year, he is not entitled to commission on the shares of the infants, (p. 640).</p> <p>3. Administrator.</p> <p>An administrator of a surety having in his hands, as such administrator, bank stock certificates, when the principal debtor becomes insolvent, may, and should, apply, on the debt for whidh the decedent is bound as surety, the value of the stock and any dividends thereon remaining in his hands, (p. 642).</p> <p>4. Deceased Person — Stocks.</p> <p>That stock stands on the transfer hook o-f a corporation in the name of the deceased person, is not conclusive evidence that it belongs to his estate. As it is equally consistent with his having held the stock as collateral, circumstances clearly indicating that it was so held are sufficient to support a finding to that effect by a commissioner, especially when it is shown that the deceased person kept a careful book account of his investments which does not disclose an investment in such stock, (p. 644).</p> <p>6. Creditor — Insolvent Person.</p> <p>A creditor of an insolvent person, after having applied, on the debt due him, the value of securities in his hands, can prove only the balance due him against the estate of the insolvent, (p. 647).</p> <p>6. Bonds — Public Officer — Presumption.</p> <p>When it is shown by public records that an official bond has been given by a public officer, but search for it is unavailing, the presumption in favor of the regularity of the acts of public officers applies, and the court may assume that the condition of the bond was such as the law required, (p. 651).</p> <p>7. Administbatoe — Liability.</p> <p>Prima facie an administrator is liable for the whole amount of the estate of his decedent and must account for the same, but, as to any assets of the estate he may so account by showing that the same are worthless or have been lost, without any faúlt or negligence on his part, or failure on his part to use due diligence to prevent the loss, and his oath is prima facie proof of such worthlessness or loss. (p. 653).</p> <p>8. Administbatoe — Bonds—'-Liability.</p> <p>A testator whose personal estate amounted to less than $60,-000.00, of which $40,000.00 was represented by equal amounts of the interest bearing bonds of two railroad companies, and the balance for the most part, by other bonds and notes, directed, by his will, that two funds qf $5,000.00 each be invested “in some safe public bonds or securities, bearing at least six pp centum annual interest” or deposited “with some trust company at the time reported solvent,” and the interest thereon paid to his two sisters during their natural lives, and, after their deaths, the principal sums to be put into the residuum of his personal estate. He died in 1872, and the administrator with the will annexed, by way of compliance, set apart $5,000.00 of each of the two classes of railroad bonds, believing them to be good, and, in the panic of the year 1873, the bonds representing one of the funds greatly depreciated and were afterwards sold for forty-eight cents on the dollar. Held: That, under the circumstances stated in the opinion here filed, the administrator is not chargeable with the loss, nor, on account thereof, with compound interest in his settlement, (p. 654).</p> <p>9. Personal Representative.</p> <p>When a personal representative is in no sense at fault, and yet a balance for any year appears against him, the interest on such balance is not carried into the account for subsequent years, but stands over until final settlement or until sufficient disbursements have been made to discharge it, after having extinguished the balance of principal due-, (p. 655).</p> <p>10. Personal Representative — Liability.</p> <p>But when, the debts have been paid, or there has been time in which to pay them, and the personal representative has only legacies and distributive shares to deal with, he is treated and settled with, as to interest, on the principles governing settlements between ordinary creditors and debtors, except that, under peculiar circumstances, he may become chargeable with compound interest, (p. 655).</p> <p>11. Personal Representative.</p> <p>When there is a balance due the personal representative for any year, the interest thereon is carried into the account for subsequent years, except when by so doing, he would be allowed interest on, interest, (p. 656).</p>

<p>1. Delinquent Land — Infant.</p> <p>The statute allowing infants one year after becoming of age in which to redeem lands sold for non payment of taxes, is construed liberally in their favor, (p. 661).</p> <p>2. Delinquent Land — Infant.</p> <p>Where land assessed to the heirs of a deceased person becomes delinquent for non payment of taxes, and, before sale for such delinquency, partition thereof is made among the heirs, and part of the land allotted to one of the heirs is purchased by a stranger at the tax sale, any of those who shared in the partition and against whom the tax was assessed may redeem, (p. 662).</p> <p>3. Delinquent Land — Right to Redeem.</p> <p>Actual production of the money in offering to redeem is not necessary when the purchaser declines to allow redemption, on the ground that the party is not entitled to redeem, (p. 662).</p> <p>4. Delinquent Land — Purchaser.</p> <p>Where part of the land belonging to coparceners, and charged with taxes against them as heirs, has been sold by the sheriff for non-payment of taxes and purchased by a stranger, and is so sold again for the non-payment of the taxes assessed against the same persons for whose delinquency the first sale was made, but for years subsequent to those for the taxes of which, the preceding sale was made, and one of the heirs buys the land at the second sale, and the purchaser at the first sale does not redeem from such second purchaser, the lieir so purchasing acquires, as against him, a superior and better right to the title, (p. 664).</p>

<p>1. Wilu — Contest.</p> <p>In a contest at law over a will either the proponent or the contestant may demur to the evidence. How the evidence is considered, (p. 667).</p> <p>2. Will — Witness.</p> <p>Evidence of witnesses present at the execution of a will is entitled to peculiar weight, and especially is this the case with the attesting witnesses, (p. 675).</p> <p>3. Wilt. — Testator.</p> <p>It is not necessary that a testator possesses high quality or strength of mind to make a valid will, not that he then have as strong mind as he formerly had. The mind may he debilitated, the memory enfeebled, the understanding weak, the character may be peculiar and eccentric, and he may even want capacity to transact many of the business affairs of life; still it is sufficient if he understands the nature of the business in which he is engaged when making a will, has a recollection of the property he means to dispose of, the object or objects of his bounty, and how he wishes to dispose of his property, (p. 676).</p> <p>4. Will — Capacity of Testator.</p> <p>When incapacity o£ a testator is alleged against a will the vital question is as to his capacity of mind at the time when the will was made. (p. 677).</p> <p>6. Will — Testator—Free Agency.</p> <p>The influence resulting from attachment or love, or mere desire of gratifying the wishes of another, if free agency is not impaired, does not affect a will. The influence must amount to force or coercion destroying free agency; it must not be the influence of affection or attachment; it must not he mere desire of gratifying the wishes of another, as that would he strong ground to support the will; further, there must be proof that it was obtained by this coercion, by importunity that could not be resisted, that it was done merely for the sake of peace, so that the motive was tantamount to force and fear, (p. 677).</p> <p>7. Will — Testator.</p> <p>The will of a person of competent testamentary mind and memory is not to be set aside on evidence tending to show only a possibility or suspicion of undue influence, (p. 678).</p> <p>8. Will.</p> <p>Merely because a testator may be incompetent to safely transact the general business affairs of life does not render him incompetent to make a will. (p. 679).</p> <p>9. Will.</p> <p>The fact that a man and woman have had or still have unlawful sexual intercourse will not alone invalidate the will of one in favor of the other,- or afford a presumption of undue influence. It is only a circumstance to be considered along with other matters, (p. 679).</p>

<p>1. SURVIVORSHIP.</p> <p>Does survivorship in a will relate to the death of a testator or of the death of tenant for life or other point of time? (p. 683).</p> <p>2. Tiib Word “or” in a</p> <p>A will gives testor’s widow a' life estate, with power to sell some realty and consume its proceeds, and then says, “at the death of my wife what real estate and personal property may he left shall he so'd, and divided equally among my children, or their children, or their representatives.’’</p> <p>Testator’s children took no absolute or vested estate during the life tenancy, 'and such estate could vest only in those living at its close, and a deed of trust for debt given by a child dying before the life tenant has no effect upon testator’s property against children of such child. » (p. 684).</p>

<p>1. Facts — Decree of Circuit Court.</p> <p>A decree oi' the circuit court determining questions of fact, unless, plainly wrong, will not be disturbed, (p. 693).</p> <p>2. Facts — Commissioner’s Report.</p> <p>The report of a commissioner as to matters of fact supported by evidence confirmed by the circuit court, unless plainly contrary to the evidence or without evidence to support it, will not be disturbed, (p. 695).</p>

<p>1. DELINQUENT Land — Sale.</p> <p>The failure to return a list of delinquent lands sold for taxes by the first Monday in June is not, under chapter So., section 25, Code 1S99, ground for setting aside a sale, either to the state or an individual. The defect is cured by that section. Expressions to the contrary in McGee v. Sampselle, 47 W. Ya. 352, disapproved. (p. 698).</p> <p>2. Delinquent Land— Tax Sale.</p> <p>The curative provisions as to tax sales in section 25, chapter 31, Code 1899, apply to purchases by the state of land sold for taxes. Point 3 of the syllabus in McGee v. Sampselle, 47 W. Va. 352, to the contrary, is overruled, (p. 698).</p> <p>3. Delinquent Land — Tax Sale.</p> <p>A sale for delinquent taxes of land purchased by the state for taxes for a year previous to the year for the taxes of which the land is sold to an individual is illegal and void, and a deed under such sale is void. (p. 699).</p> <p>4. PoRmei? Decree — Bes Judicata.</p> <p>To render a former decree a bar as res judicata, in a second suit about the same roster, not mere matter of defense, the matter of the second suit must have been actually in issue in the first. The pleadings of the first suit must be such that the party could have proven and had it passed on. (p. 699).</p> <p>5. Bill — Decree.</p> <p>Where a bill in a suit does not present facts which call for relief, and it is dismissed, the decree will not bar a subsequent bill on the same cause of action, which states additional or other facts not in the first bill, which make the second bill good, for the same relief called for in the first suit. (p. 700).</p> <p>6. Bill — Decree—Dismissal.</p> <p>If a material fact touching a matter of controversy is such that it must be stated in a bill, a decree dismissing a bill not stating it will not bar a second bill properly stating such fact. (p. 7q))</p> <p>7. FORMER Decree.</p> <p>To render a former decree a bar to a second suit the demand must not only be the same, but the cause of that demand must be the same. (p. 701).</p> <p>8. Former Suit.</p> <p>Where the record leads- to the ground of decision, that decision is no farther a bar to a second suit than as to that ground, except as to defenses which the party is bound to plead, (p. 701).</p> <p>9. Tax Sale — Defective Title.</p> <p>A bill to set aside a tax deed for defects in the proceedings under which it was sold must point out those defects, (p. 702).</p> <p>10. Tax Sale — Defective Title.</p> <p>Where a, tax deed is set aside by decree, not for a mistake or irregu’arity in the- record of the proceedings under which it was sold, referred to in section 25, chapter 31, Code 1899, but because the sale was unauthorized by law, and so the deed void, the former owner suing to clear his title of such deed will not be required to repay the tax purchaser his outlay in his purchase or taxes paid by him. (p. 703).</p>