Volume 95 — West Virginia Reports

<p>1. Vendor and Purchaser — Vendor’s Men May he Enforced Under Prayer for General Relief.</p> <p>In a suit "brought by the vendor against the vendee to specifically enforce- a contract for the sale of real estate, if it appears that the vendor has executed and delivered to .the vendee a deed, conveying the property and retaining a vendor’s lien to secure the deferred purchase price, the court may, under the plaintiff’s prayer for general relief, decree enforcement of the vendor’s lien. (p. 4).</p> <p>2. Parties — One Holding Only Uncertain and Indefinite Equity not “Necessary Party."</p> <p>A person whose reputed equity in the land is indicated only by uncertain and indefinite evidence is not a necessary party to such suit. (p. 5).</p>

Action by John G. St. Clair against J. O. Jaco and others. Verdict for defendants. There was an order setting the verdict 'aside, and awarding plaintiff new trial, and defendants bring error.

<p>Dismissal and Nonsuit — Plaintiff May \Suffer Tolimtary Non-suit in Law Action at Any Time Before Jury Retires or Case Submitted to Court, Unless Counterclaim Piled or Defendant Clearly Prejudiced.</p> <p>Plaintiff in an action at law lias tlie right to suffer a voluntary nonsuit at any time before the jury retires from the bar, or at any time before the case has been submitted for decision to the court, sitting in lieu of a jury; unless defendant has filed a counter claim or it is clear that his rights would be prejudiced by the nonsuit, excepting, of course, the ordinary inconveniences to which he would be subjected' by another suit.</p>

<p>1. Ejectment — If Court Compelled, to Set Aside Verdict for Plaintiff, One May be Directed for Defendant.</p> <p>If on the trial of title to land the court would be compelled to set aside a verdict for the plaintiff, a verdict may be directed for defendant, (p. 18).</p> <p>2. Same — Description of Land in Declaration Held Sufficient.</p> <p>A: declaration in ejectment which describes the land sued for as “being one acre reserved out of said tract and on the northeast end of said tract and begins at the county road where the tract crosses said road and then running down the road far enough to get an acre of said tract by running up the hillside to the outside boundary line of the said tract, and then with said line to the beginning,” is not had on demurrer for failing to comply with section 8, chapter 90' of the Code, (p. 19).</p> <p>3. Trial — Mere >Scintilla of Evidenlce Not Sufficient to Require Submission to Jury; Where Verdict Cannot Stand on Evidence, Court May Properly Direct for Party Against Whom Offered.</p> <p>To call peremptorily for the submission of an issue to the jury, it is not sufficient that there be a mere scintilla of evidence supporting it; and if the court would not allow a verdict to stand thereon, it may properly direct a verdict for the party against whom the evidence is offered. (p. 20).</p> <p>4. Ejectment — Where Impossible to Locate Land in Declaration, Court May Properly Direct Verdict for Defendant.</p> <p>Where it is impossible to locate on the ground the land described in the declaration and the rights of the parties depend thereon, plaintiff must fail of any recovery, and the court may properly direct a verdict for defendant. (p. 21).</p> <p>5. Same — Location of Land in Declaration Held Question of Law.</p> <p>Where in ejectment the land sued for and the plaintiff’s title papers call for a lot located in the northeast end of the tract out of which it was reserved, and there is such a locality in the larger tract, and there is nothing in the record of the deeds or other evidence justifying the location thereof at any other point, the question of the construction of the deed is one of law for the court and not of fact for the jury. (p. 31),</p> <p>6. Appeal and Ebkoe — Judgment not Reversed for Failure of Jury to Find Interest of Plaintiff, Where Verdict Directed for Defendant.</p> <p>When in such suit, the court in directing a verdict for the defendant, further directs them to find that the lot of plaintiff is at another location than the one sued for, and the jury-fails to find the estate or interest of the plaintiff in the lot as so located, the error, if any, is harmless, and for -which the judgment on the verdict will not he reversed. (p. 31).</p> <p>7. Costs — Defendant, Substantially Prevailing, Entitled to Recover of Plaintiff His Costs.</p> <p>When in such a suit the defendant substantially prevails, he is entitled to recover of plaintiff his costs. (p. 32).</p>

<p>Suit by the County Court of Roane County against William H. O’Brien, Judge, and others, for writ of prohibition.</p>

<p>1. Schools and School Districts — Teacher’s Gontraet not Invalidated Became Board Sad not Regularly Fixed its Place of Meeting.</p> <p>Under sec. 57, chap. 45, Code, a district board of education may legally employ teachers for the ensuing year prior to July 1st; and where a meeting of the board is held' in the month of June, on the day long- established by custom as the regular monthly meeting day, and at the usual place of meeting, at which the president, secretary and all members are present, and teachers are appointed and the president directed to execute formal contracts with them; and in pursuance thereof such contracts are duly executed and filed with the secretary, such contracts will not be void because the board had not at its first meeting in July in the year previous fixed the time and place of its regular meetings as prescribed in sec. 45, chap. 45, Code. (p. 6-3).</p> <p>2. Same — Teacher’s Contract not Invalid Because District Supervisor Was not Present at Board Meeting.</p> <p>A contract so executed will not be invalid because the district supervisor was not present at the meeting and made no recommendation concerning, the teachers employed. And especially so, where the resignation of the supervisor has been requested and is in the hands of the board for action thereon. (P. 64).</p> <p>3. Same — Teacher’s Contract not Void, Because Certificate did not Accompany it When Tendered to- Secretary of Board of Education for Signature and Filing — Teacher’s Certificate Must he Filed with Secretary of Board of Education.</p> <p>A teacher cannot be employed unless she has received a teacher’s certificate; but where such certificate has been issued and the board knows the fact and so- states in the contract duly executed, that contract is not rendered void and of no effect be cause the certificate does not accompany the contract when tendered to the secretary for his signature and for filing 'in his office. The certificate must be filed with the secretary; (p. 65).</p> <p>4. Same — Teacher’s Contract not Void for Want of Formal Application to Board.</p> <p>It is not necessary that a teacher make formal application in writing to the board for employment. Any member of the board or any other person for her may malee informal application; and a contract to teach duly entered into between her and the board is not void for want of written formal application on her part. (p. 66).</p> <p>5. Same — Where Contract Signed hy Teacher and Board, Secretary’s Duty to Sign and File is Ministerial.</p> <p>Where the board has legally appointed and employed a teacher and the contract in the form prescribed by the state superintendent of free schools has been signed by the president at the direction of the board, and signed by the teacher, it becomes a .ministerial duty of the secretary as such to- sign the contract and file it with, the records of his office. He has no discretion to refuse, where he knows that the contract has been made by order of the board, and his refusal or neglect to sign will not render the contract void. (p. 67).</p> <p>6. Mandamus — What may he considered in Determining Whether Delay in Applying for Mandamus was' Unreasonable, Stated; School Teacher Held not Barred by Laches from SeeMng Writ to Compel Secretary to Sign Contract of Employment.</p> <p>Mandamus may be refused where relator has unreasonably delayed his application therefor, by reason whereof the rights of respondent or innocent third parties will, be prejudiced by issuance of the writ. In determining what constitutes such unreasonable delay justifying invocation of the equitable doctrine of laches, the circumstances which justified delay, the character of the case, situation of the parties, nature of relief demanded, and whether the rights of third parties nave been •innocently acquired, should be considered. Under the circum-'1 stances of this case the delay in applying for the writ will not warrant refusal; relator having shown a clear right to the remedy. (p. 68).</p>

<p>Appeal from Circuit Court,' Cabell County. ' ' •</p> <p>Suit by Asa Carson against Benjamin Woodrain and others. From a decree dissolving a temporary injunction, plaintiff appeals. • . •</p>

Action by the City ol Charleston, on the relation of Dale Kissel, infant, etc., against Firman De Hainaut, Jr., and others. An order was entered sustaining a motion to set aside a verdict for. plaintiff and relator brings error.

<p>1. Intoxicating Liquors — “Moonshine Liquor” Defined.</p> <p>The words “Moonshine Liquor” as used in sec. 37 of ch. 32A, Barnes’ Code, 1923, means liquor made in a “moonshine still” as defined therein, (p. 209).</p> <p>2. Same — Possession of Bonded Liquor Insufficient to Sustain Conviction for Unlawful Possession of “Moonshine Liquor</p> <p>"Where the evidence shows that the defendant had in his possession certain quantities of bonded liquor, bonded out side of the state in 1921, and stored by him in his home in September, 1921, he. does not violate that provision of sec. 37 of ch. 32A, Barnes’ Code, 1923, making it unlawful for any person to have in his possession any quantity of moonshine liquor! Bonded whiskey is not “moonshiine liquor” as' contemplated in said provision (p. 210).</p> <p>3. Same — Presumption That Liquor Unlawfully Possessed Is Moonshine Rebuttable;' Proof That Liquor in Accused’s Possession Is Bonded Liquor Sufficiently Rebuts Presump- • tion That It is Moonshine.</p> <p>Where the statute provides that “the finding of any quantity of intoxicating liquor in the possession of any person, other than commercial whiskies which were obtained and stored in homes for domestic use at a time when it was lawful so to .do, shall be prima facie evidence that the same is moonshine liquor,” said prima facie evidence is subject to be rebutted, and where the evidence shows that the liquor so found in the possession of the defendant was bonded liquor, this prima facie evidence is sufficiently rebutted, (p. 210).</p>

<p>CoNteacts — Agreement to Hinder Oivil Actions by Use of Criminal Process Invalid.</p> <p>Contracts to stifle or suppress evidence, or to hinder the prosecution of civil actions by the use of criminal process are illegal and unenforceable.</p>

<p>Error to Circuit Court, Cabell County.</p> <p>Proceedings in bastardy by the State, on the- relation of Jennie Pierce, against Buford Williams.</p> <p>Judgment of conviction, and defendant brings error.</p>

<p>Appeal from Circuit Court, Cabell County.</p> <p>Suit by Fannie B. Reynolds against J. M. Beale and others. Froih a decree for plaintiff, defendants appeal.</p>

<p>1. Seaeohes AND Seizukes — Intoxicating Liquor Search Warrant Held Not to Extend to Person Happening to he on Premises.</p> <p>A search warrant issued pursuant to the provisions of section 9 of chapter 13; Acts 1913, section 9 of chapter 32A, Barnes’ Code 1923, cannot be extended to authorize the arrest or search of a person not in any way connected with the place directed to be searched, who merely happens to be upon the premises, and who is not mentioned or described in the warrant or affidavit of probable cause upon which the warrant was issued, (p. 235).</p> <p>2. Criminal Law — Evidence Secured Toy Unlawful Arrest or Search Inadmissible. '</p> <p>Evidence obtained by the discovery of a pistol or revolver upon one unlawfully arrested or searched cannot be used in evidence against such person upon his trial for carrying such weapon in violation of the statute, (p: 238).</p> <p>3. Constitutional. Law — Bvery Reasonable Construction Resorted to in Saving Statute from UnconstitutionaUty.</p> <p>Every reasonable construction must fee resorted to in order to save ai statute from unconstitutionality, (p. 238).</p>

<p>Error to Circuit Court, Cabell County.</p> <p>J. T. Edwards was convicted of the theft of an automobile, and he brings error.</p>

<p>Contbacts — Agreement Held Outright Sale of Corporate StocTc Not Mere Option.</p> <p>A! written agreement between two parties whereby the party of the first part agrees to- sell and transfer to the party of the second part fifty shares of corporate stock “as well also as all interests which the said party of the first part shall have in the said corporation, and all claims which he may have against said company, for the price of $3600.00,” and further providing that the “payment aforesaid shall be made and the stock transferred within ten days from the ,date hereof,” constitutes an outright and binding! contract of sale and purchase and not a mere option to be exercised wiithin ten days.</p>

Case certified from Circuit Court, Roane County. Suit by Claude Smith against William Ledsome and others. A demurrer was sustained to plaintiff’s bill, and questions were certified.

<p>Error to Circuit Court, Brooke County.</p> <p>Action by the County Court of Brooke County against the United States Fidelity & Guaranty Company of Baltimore, Md. Judgment for plaintiff, and defendant brings error.</p>

Case certified from Circuit Court, Kanawha County. Suit by the United States Fidelity & Guaranty Company against the Central Trust Company, receiver. A demurrer to the bill was overruled, and questions certified.

Certified questions from Circuit Court, Roane County. Action by Zella Barber, administratrix of the estate of Alonzo Barber, deceased, against the Spencer State Hospital. A demurrer to the declaration was sustained, and the questions certified.

Case certified from Circuit Court, Tucker County. F. 0. Blake and another were indicted for grand larceny and for stealing a dog. Demurrer and motion to quash indictment sustained as to the first count, and overruled as to the second, and questions certified.

<p>Case certified from Circuit Court, Mineral County.</p> <p>Action by the Elk Garden Big Vein Coal Mining Company against Dr. Richard Gerstell. Case certified to Supreme Court on certain rulings of the lower court.</p>

Case Certified from Circuit Court, Tucker County. Action by Sarah Long, administratrix, against the Babcock Lumber & Boom Company. A demurrer to the declaration was overruled, and questions certified.

Case certified from Ciretdt Court, Putnam County. Action by H. A. Frazier, administrator, etc., against C. E. Copen and others. A demurrer to the declaration was sustained, and a demurrer to the special plea of defendants overruled, and the questions certified.

<p>1. Evidence — Observation of Facts by One Glass of Witnesses Not Inconsistent with Failure of Another Class to Observe It.</p> <p>The fact that witnesses have heard signals given by a locomotive approaching a crossing warning travelers of danger, is not necessarily in conflict with the evidence of other witnesses who did not hear them; for the observation of the fact by those who' heard is consistent with the failure of the others to hear them. (p. 495).</p> <p>2. Same — Whether Conflict Between Positive and Negative Evidence in Hearing Warning Signals Depends on Particular Case.</p> <p>Whether a conflict arises between positive and negative evidence of this character depends upon the facts and circumstances of each case from which it may be determined whether such negative evidence has any probative value, (p. 495).</p> <p>3. Railkoads — Traveler Required to Loolc and Listen.</p> <p>It is the duty of a traveler approaching a railroad crossing under the circumstances oí this case, to look and listen for approaching trains before entering upon the crossing and placing himself in a situation of danger, (p. 500).</p> <p>4. Same — Traveler’s Caution 8'hoiMcl he Commensurate with Danger.</p> <p>If the view be obstructed rendering the crossing more dangerous the traveler should use caution commensurate with the increased danger, (p. 500).</p> <p>5. Same — Traveler Held Negligent.</p> <p>Where eye-witnesses to a railway crossing accident fatal to the traveler all agree that he entered upon the crossing without either stopping, looking or listening, and it appears that by the ordinary use of these senses the approaching train would have been seen or heard and the accident avoided; and it further appears that he w.as warned to “look out” before he reached a place of danger; the question of contributory negligence on his part is not for the jury, and the court should direct a verdict for defendant, although the speed of the train in- approaching the crossing was so great as to render passage thereover more dangerous, (p. 503).</p> <p>6. Same — Traveler’s Negligence Held Proximate Cause of Injury.</p> <p>In such case the proximate cause of the injury is the negligence of the traveler, (p. 501).</p>

<p>Original mandamus by tbe State, on tbe relation of W. G. Peterkin, against tbe City Council of City of Parkersburg.</p>

<p>Appeal from Circuit Court, Braxton County.</p> <p>‘ Suit by John P. Berry against Winifred G. Squires and others. Prom a decree for plaintiff, defendants appeal.</p>

Action by 'S. S. Maguet, Jr., against L. N. Frantz. Ver-diet for plaintiff was set aside by the court and he brings error.

Action by T. B. Chewning against S. S. Simmons. Judgment for plaintiff, and defendant brings error. Judgment set aside, verdict reinstated, judgment entered thereon.