Amick v. Ellis

West Virginia Supreme Court

Amick v. Ellis

44 S.E. 257, 53 W. Va. 421, 1903 W. Va. LEXIS 46

West Virginia Supreme Court·Decided April 28, 1903·Published·Cited by 17 cases

Opinion

Beannon, Judge:

Virginia L. Ellis, wife of R. Id. Ellis, being owner of land in Eayette County, sbe and her huband.made a contract with J. A. Amick, 5 September, 1896, selling to him “all mineral and coal” in the tract of land, part of the purchase money being paid down, and part payable in future.. Mrs. Ellis refused to accept the last payment, and Amick brought a suit in equity in the circuit court of that county, asking that Ellis and wife be compelled to perform the contract by conveyance according to it, or if that could not be done, that the contract be rescinded, and that a decree be made in favor of the plaintiff for the money paid him under the contract. A decree was made rescinding the contract, and decreeing personally against Virginia L. Ellis $232.13 on account of money paid under said contract,- and subjecting the sale of minerals and coal in the land from which decree Virginia L. Ellis appeals.

As this contract was not acknowledged for recordation it could not be specifically enforced by conveyance of the land. Rosenour v. Rosenour, 47 W. Va. 554. The contract being on its face void in law for all .purposes of equity jurisdiction, the [422] alleged equity jurisdiction is merely colorable or pretended, just to get jurisdiction. Laidley v. Laidley, 25 W. Va. 525; Thompson v. Whitaker, 41 W. Va. 574. To give jurisdiction there must be “in addition to the simple setting up of the claim, some color for it; in other words, the claim must be of such character that its mere mention does not show it destitute of merit.” N. O. Waterworks v. Louisiana, 185 U. S. 344. Hence we cannot apply the rule that having jurisdiction for one purpose full relief or alternative relief will be given. There is jurisdiction neither to compel a deed nor for money. If there is any liability on Mrs. Ellis to recover back money paid under the contract, it is recoverable at law under section 15, chapter 66, Code. Williamson v. Cline, 40 W. V. 194; Wick v. Dawson, 42 Id. 43; Rogers v. Lynch, 44 Id. 94.

Therefore, we reverse the decree and dismiss the bill without prejudice to an action at law.

Reversed.

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Beannon, Judge:

Virginia L. Ellis, wife of R. Id. Ellis, being owner of land in Eayette County, sbe and her huband.made a contract with J. A. Amick, 5 September, 1896, selling to him “all mineral and coal” in the tract of land, part of the purchase money being paid down, and part payable in future.. Mrs. Ellis refused to accept the last payment, and Amick brought a suit in equity in the circuit court of that county, asking that Ellis and wife be compelled to perform the contract by conveyance according to it, or if that could not be done, that the contract be rescinded, and that a decree be made in favor of the plaintiff for the money paid him under the contract. A decree was made rescinding the contract, and decreeing personally against Virginia L. Ellis $232.13 on account of money paid under said contract,- and subjecting the sale of minerals and coal in the land from which decree Virginia L. Ellis appeals.

As this contract was not acknowledged for recordation it could not be specifically enforced by conveyance of the land. Rosenour v. Rosenour, 47 W. Va. 554. The contract being on its face void in law for all .purposes of equity jurisdiction, the [422] alleged equity jurisdiction is merely colorable or pretended, just to get jurisdiction. Laidley v. Laidley, 25 W. Va. 525; Thompson v. Whitaker, 41 W. Va. 574. To give jurisdiction there must be “in addition to the simple setting up of the claim, some color for it; in other words, the claim must be of such character that its mere mention does not show it destitute of merit.” N. O. Waterworks v. Louisiana, 185 U. S. 344. Hence we cannot apply the rule that having jurisdiction for one purpose full relief or alternative relief will be given. There is jurisdiction neither to compel a deed nor for money. If there is any liability on Mrs. Ellis to recover back money paid under the contract, it is recoverable at law under section 15, chapter 66, Code. Williamson v. Cline, 40 W. V. 194; Wick v. Dawson, 42 Id. 43; Rogers v. Lynch, 44 Id. 94.

Therefore, we reverse the decree and dismiss the bill without prejudice to an action at law.

Reversed.

Amick v. Ellis, 44 S.E. 257, 53 W. Va. 421, 1903 W. Va. LEXIS 46 (W. Va. 1903).

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Opinion

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