Zane v. Fink

18 W. Va. 693, 1881 W. Va. LEXIS 71

• Court: West Virginia Supreme Court
• Decided: November 26, 1881
• Status: Published

Opinion

HaymoND, Judge,

announced the opinion of the Court:

The counsel for the appellees in this case claims in his argument and printed brief, that “ the very act of Sawtell purchasing out the sole plaintiff abated the suit,” and claims also> that plaintiff has no further interest in the subject-matter of the suit and cannot therefore ask this Court to have the final decree of dismissal reviewed. The counsel for appellees also says in his brief: “ I conceive the court committed an error in compelling the defendants to litigate the matter with J. W. 'Zane, after he parted with all of his interest in the subject-matter in this suit. To say the least of it, it was not right to turn us over to an irresponsible party for costs, and suffer his grantee to go scot-free.”

I do not understand however the appellees’ counsel to insist, that because of such error in the circuit court, if error it bé, ihe final decree in the cause; which is in favor of his clients and dismisses the plaintiff’s bill, should be reversed. On the contrary I understand the appellees’ counsel to insist and maintain, that the said final decree should be affirmed, unless the court should dismiss the appeal and supersedeas allowed in this cause, because the appellant has no right to ask this court to have the said final decree reviewed by it for the reasons assigned by him in his brief. If for the reasons assigned by the counsel for the appellees this court ought not to review the cause upon petition in the name of appellant, then it is the unquestionable duty of this Court to dismiss the appeal and supersedeas as being improvidently allowed without passing upon the merits of the case. It is. therefore proper first to inquire into and determine the said preliminary question raised and made by the appellant’s counsel.

This I will now proceed to do. But I must be permitted to say in the outset, that authorities upon the subject are cloudy and conflicting, and in order to arrive at a satisfactory solution of the question it is necessary to consider and discuss principles governing the practice in courts of equity, which though interesting are complex in their character, and which have not been very much considered by the Appellate Courts of this State or the State of Virginia, or in fact by very many of the Appellate Courts of the other States of the Union, so far as I am advised.

In determining the question under consideration I will.first consider the effect, and what course a court of equity should pursue in a case before it, where the sole plaintiff pendente lite conveys his whole interest in the subject-matter of the suit to a .third person, and the fact of such conveyance pen-dente lite is properly brought before the court by the defendant with objections on his part to the cause being further prosecuted by the plaintiff, unless the pendente lite purchaser is made a party to the cause by proper bill; and also where the defendant asks, that unless the pendente life purchaser be made a party to the suit within a reasonable time, the same, be abated or dismissed.

To reach a correct and satisfactory conclusion upon the subject it is proper in my judgment to seek for light in the authorities at hand and to consult them, so far as they bear upon ■the question.

Judge Story in section 406 of the first volume of his Equity Jurisprudence says: “ Ordinarily it is true, that the decree of a court binds only the parties and their privies in representation. or estate. But he, who purchases.during the pend-ency of a suit, is held bound by the decree, that'may be made against the person, from whom he derives title. The litigating parties are exempted from taking any notice of. the title so acquired; and such purchaser need not.be made a party to the suit. Where there is a real and fair purchase without any notice, the rule may operate very hardly. ■ But it is a rule •founded upon a great public policy; for otherwise alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendente lite nihil innovetur, the effect of which is, not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of th.e parties, the conveyance is treated as if it never had any existence; and it does notvary them. A Us pendens, however,being only a general notice of an equity to all the world, it does not affect any particular person with a fraud, unless such person had also special notice of the title in dispute in the suit,”. &c. . *

In the fourteenth section of chapter 139. of the Code.of 1868 of this State it is provided touching notice of Us pendens, that “the pendency of an action, suit or proceeding to subject real estate to the payment of any debt or liability, upon which a previous lien shall not have been acquired in some one or more of the methods prescribed by law, shall not bind or affect a purchaser of such real estate, unless and until a memorandum, setting forth the title of the cause; the court in which it is pending ; the general object of the suit; the location and quantity of the land, as near as may be, and the name of the person whose estate therein is intended to be affected by the action or suit, shall be filed with the recorder' of the county in which the land is situated ; and such recorder shall forthwith record the said memorandum in the deed-book,and index the same by the name of the person aforesaid.” This section has been amended by the legislature in some respects by chapter 68 section 14 of the Acts of 1877. See page 93 of said Acts; I deem it unnecessary here to specify the nature or extent of these amendments. I refer to this statute here, because I think it modifies greatly the general doctrine of lis pendens, as stated by Judge Story in some cases. But I will not pause here to specify the cases, as I deem it unnecessary in this case. I give the statute here with reference to the ' amendment however, that it may be read in connection with the general doctrine of lis pendens, as it may be stated in this opinion, to the end that no one may be misled by the general doctrine in the absence of statutory provisions. See also 1 Story Eq. Jur. § 405 and also 2 Story Eq. Jur. § 908. In the last named paragraph Judge Story says:

“Although the maxi m is pendente lite nihil innovetur, that maxim is not to be understood, as warranting the conclusion, that the conveyance so made is absolutely null and void atall times, and for all purposes. The true interpretation of the maxim is, that the conveyance does not vary the rights of the parties in that suit; and they are not bound to take notice of the title acquired under it; but with regard to them the title is to be taken, as if it had never existed. Otherwise suits would be indeterminable, if one party, pending the suit, could, by conveying • to others create a necessity for introducing new parties.”

In Equity Pleadings section 156, the Judge says: “Generally speaking, an assignee, pendente lile, need not be made ' a party to a bill, or be brought before the court; for every person, purchasing pendente lite, is treated as a purchaser with notice, and is subject to all the equities of the persons, under whom he claims in privity. And it will make no difference whether the assignee pendente lite bo the claimant of a legal or equitable interest, or whether he be the assignee of the plaintiffs or defendants. Still however it is often important to bring such assignees before the court as parties by a supplementary bill, in order to take away a cloud hanging over the title, or to compel the assignee to do some act, or to join in some conveyance. So that such assignee, although not a necessary party, may at the same time be a proper party at the election of the plaintiff.”

In Story’s Equity Pleadings section 351,ho says: “The voluntary alienation of property, pending a suit, by any party to it is not permitted to affect the rights of the other parties, if the suit proceeds without a disclosure of the fact, except so far as the alienation may disable the party from performing the decree of the court. Thus if, pending a suit by a mortgager to foreclose the equity of redemption, the mortgager makes a second mortgage, or assigns the equity of redemption, an adsolute decree of forclosure against the mortgager will bind the second mortgagee, or assignee of the equity of redemption, who can only have the benefit of a title so gained by filing a bill for that purpose. But upon a bill by a mortgager to redeem, if the mortgagee assigns pendente lite, the as-signee must be brought before the court by the mortgager, who cannot otherwise have a re-conveyancc of the mortgaged property. The bill in the latter case, is merely supplementary; but in the former case the bill must be an original bill in the nature of a cross-bill, to redeem the mortgaged property. If the party aliening be the plaintiff, in the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a bill, which although in the nature of an original bill against the alienee will be supplemented against the parties to the original suit; and they will be necessary parlies to the supplemental suit, only so far as their interests may be affected by the alienations. Generally, in cases of alienation, pendente lite, the alienee is bound by the proceedings in the suit after alienation, and before the alienee becomes a party to it; and depositions of witnesses taken after the alienation, but before the alienee became a party to the suit, may bo used by the other parties against the alienee, as they might have been used against the party under whom he claims.” See Mi if. Eq. PI. by Jeremy and cases there cited'; Cooper Eq. PI. 77.

In section 3-12 of Story’s Equity Pleadings the Judge says : “So, if the interest of a defendant is not determined, and only becomes vested in another subsequent to the institution of a suit, as in the case of alienation by deed or devise, or by bankruptcy or insolvency, the defect in the suit may be supplied by supplemental bill, or a bill in the nature of a supplemental bill, whether the suit has become defective merely, or is abated as well as become defective. For in these cases, the new party comes before the court exactly in the same plight and condition, as the former parly, is bound by his acts, and may be subject to all the costs of the proceedings from the beginning of the suit. But this distinction is constantly to be borne in mind between cases of voluntary alienation and cases of involuntary alienation, as by the insolvency or bankruptcy oí the defendant. In the latter cases, the assignee must be made a party; in the former ho may or may not at the election of the plaintiff.”

As to the frame and structure of the supplemental bill mentioned in said section 342, Story’s Eq. PI. See § 343 of the same. The said section 14 of chapter 139 modifies the general doctrine of lis pendens stated in said section 342 in certain cases therein named.

' In section 319 oí Judge Story’s said work on Equity Pleading it is said: “So, if a sole plaintiff, suing in his own right, is deprived of his whole interest in the matters in question, by an event subsequent to the institution of a suit, as in the case of a bankrupt or insolvent debtor whose property is transferred (o assignees; or in such a suit the plaintiff assigns his whole interest to another; the plaintiff in either case being no longer able to prosecute the'suit for want of interest, and hiS assignees claiming by a title, which maybe litigated, the benefit of the proceedings cannot be obtained by a mere supplemental bill; but it must be sought by an original bill in the nature of a supplemental bill.”

In section 351 the Judge says: ‘‘Where a vendee files a bill for a specific performance of a contract for the purchase of land against the vendor, and pending the suit, he (the vendee) should sell to one or more sub-purchasers, in such a case, the sub-purchasers need not be made parties ; and they would be bound by the decree in the suit. Indeed, they would have a right to insist, that their immediate vendor should proceed in the original suit for their benefit and at their charge, upon the ground, that by the sub-sale he had in effect become their trustee -of all the rights under the original contract. But if the original vendee had entered into a contract with the sub-purchasers, not that he, but that the original vendor should convey to them, the sub-purchasers, if they purchased before any suit was b.iought, might then have been necessary and proper parties to a suit for a specific performance against the original vendor by the original vendee.”

In section 328 the Judge says: “On the other hand, a suit may be perfect in its institution ; and yet, by some event, subsequent to the filing of the original bill, it may become defective, so that no proceeding can be had, either as to the whole, or as to some part thereof, with effect; or it may become abated, so that there can be no proceeding at all, either as to the whole, or as to a part thereof. The first is the case, when, although the parties to the suit remain before the court, some event, subsequent to the institution of the suit, has either made such a change in the interest of these parties, or given to some other person such an interest in the matters in litigation, that the proceedings as they stand cannot have their full effect. The other is the case, when by some subsequent event, there is no person before the court, by whom or against whom the suit in the whole or in part can be prosecuted.”

In section 329, same book, it is stated, that “ it is not very accurately ascertained in the books of practice, or in the reports, in what cases a suit becomes defective without being absolutely abated, and in what cases it abates, as well as becomes defective. But upon the whole it may be collected, that if by any means any interest of a party to the suit in the matter in litigation becomes vested in another, the proceedings are rendered defective, in proportion ás that interest affects the suit-; so that, although the parties to the suit may remain as before, yet the end of the suit cannot be obtained. Thus for example, if the party become bankrupt pending the suit, then, according to the practice of chancery, the suit will be held to be defective; but the bankruptcy does not cause an abatement,” &c.

At section 330, same book, it is said : “ There is the same want of accuracy in the books in ascertaining the manner, in which the benefit of a suit maybe obtained, after it has become defective, or abated, by an event subsequent to its institution, as. there is in the distinction between the cases, where a suit becomes defective merely, and where it likewise abates. It seems however clear, that if any property or right in litigation vested in a plaintiff is transmitted to another, the person, to whom it is transmitted, is entitled to supply the defects of the suit, if it has become defective merely; and to continue it, or at least to have the benefit of it, if it is abated. It seems also clear, that if any property or right, before vested in a defendant, becomes transmitted to another person, the plaintiff is entitled to render the suit perfect, if it has become defective, or to continue it, if it is abated, against the person, to whom that property or right is transmitted.” See upon the subject under consideration Beamed Pleas in Equity, pages 287 to 301 inclusive, and especially 297, 298, 299. At page 299 Mr. Beame says:

“But it any doubt could be entertained as to the opinion of Lord Redesdale upon this point, the passages added by his Lordship to the last edition of his work seem to prove, that his Lordship considers bankruptcy as not constituting aground of abatement. From the recent cases however the court of. chancery, without expressing any opinion on the question, whether bankruptcy is an abatement or not, seems to have adopted the rule of considering the suit to be as defective, as if it were abated, and the bankrupt, when clothed with the character of plaintiff, is required, but by what kind of bill is not quite clear, .to bring his assignees before the court in a reasonable time, or to submit to have the bill dismissed, though generally without costs,” &e.

In the case of Williams v. Kinder, 4 Ves. (by Sumner) 387, it was held by the Chancellor in 1798-9 : “By the insolvency of the plaintiff pending the account the suit abated.” But in a note to that case at. page 688 it is said: “Whether bankruptcy is strictly to be termed an abatement, or not, still when a plaintiff becomes bankrupt, the suit becomes defective, and he must either procure his assignees to be made parties within a limited time, or his bill will be dismissed.” See Wheeler v. Malins, 4 Mad. 171; Randall v. Mumford, 18 Ves. 427; Porter v. Cox, 5 Mad. 80.

In the case of The Bishop of Winchester v. Paine, 11 Ves. (by Sumner) 194, it was held, that subsequent mortgagees of an equity of redemption arc bound by a decree of foreclosure though not made parties. An exception by a purchaser on that ground was disallowed; and a specific performance decreed with costs. See aslo Murray v. Ballou, 1 Johns. Chv. 576.

In the case of Randall v. Mumford, 18 Ves. (by Sumner) 424, it was held according to the syllabus: “By the bankruptcy of the plaintiff the suit becomes defective; if not abated by analogy to law. The assignees were ordered to be made parties in a limited time or the bill to be dismissed; whether with costs, Quare. Practice of the Court of Exchequer, holding the bankruptcy of the plaintiff no abatement and therefore dismissing the bill with costs for want of prosecution. Upon the bankruptcy of the plaintiff in an injunction bill the assignees to be made parties, or the injunction dissolved,” &c. In this case according to the report the usual motion was made to dismiss the bill, which was for an account, for want of prosecution. The plaintiff had become a bankrupt. Lord Eldon in his opinion in the case at page 425 says: “It is clear, that bankruptcy is no abatement at law, butcourts of law have modes of so regulating the matter, that finally no great injustice, is felt.” And at page 427 he says: “In this Court there are several decisions not very easily to be reconciled. * * * This Court however without saying, whether bankruptcy is or is not strictly an abatement-, has said, that according to the course of the court the suit has become as defective, as if it was abated ; and as the assignees will have the benefit of the suit, and assuming in practice, that he, who is a bankrupt, will continue so, the course, which the court has taken, is to require him to bring his assignees before it by-bill of revivor or by supplemental bill in the nature of a bill of revivor, or by whatever name it is called; and the court supposing, that the bankrupt will find the means of giving the assignees notice, and not trouble itself with that difficulty, dissolves the injunction frequently with great injustice, if they do not come here. The proper order in this case therefore is, that the assignees shall be brought before the court within a reasonable time, viz: the 1st of February ; otherwise the bill to be dismissed,” &c. Note 1 to this case at page 427 is as follows: “In Wheeler .v. Halim, 4 Mad. 171, and Porter v. Cox, 5 Mad. 80, the bill was ordered to be dismissed,if the assignees would not file a supplemental bill within a fortnight. In the case of Eades v. Harris, 20 Eng. Chy. and 1 Young & Collyer 230, the syllabus is as follows : ‘'One of several ccstuis que trust having taken the benefit of the insolvent act, joins as a co-plaintiff with two others of the cesluis que trust in a bill to carry the trust-deed into execution ; the assignee of the insolvent being a defendant and the bill, alleging, that there is a surplus coming to the insolvent after payment of all the debts. This is not a misjoinder, of which advantage can be taken at the hearing; and semble that it is no good ground of demurrer. With respect to the effect, which such assignments have upon the suit, there is no distinction between assignments 'pendente Ute of equitable interests by plaintiffs and similar assignments by defendants.”

The Vice Chancellor in delivering his opinion in this case at page 234 says: “As to John Eades,” who was one of the plaintiffs, “ he appears not to have taken the benefit of the-insolvent act, and not to have become a bankrupt; but it seems, that after the suit had been commenced, he executed a private deed of assignment for the benefit of his creditors. I have looked at the will and the deed; it does not appear to me, that he had any legal interest; and I apprehend, that the circumstance of one of several plaintiffs executing after the institution of the suit an instrument, which merely affects that plaintiff’s equitable interest, docs not prevent the suit being heard, but that it may be heard, as if there had been no such assignment; and that those, who claim under it, must take such Course to enforce their rights as they may be advised.” In note 2 to this case the case of Solomon v. Solomon, 13 Sim. 516, is referred to.

In the last named case the syllabus is: “ Some of the plaintiffs, who had an equitable interest only in the property in question, mortgaged their interests-pending the suit: Held at the hearing, that the mortgagee was a necessary party.” The Vice Chancellor in his opinion in this case at page 517 says: “I do not mean to pronounce any opinion upon the decision in Hades v. Harris, the circumstances of which are different from the circumstances of the case now before me. Suppose that a mortgage is made tq A. in fee; and then a second mortgage, which is merely equitable, is made to B. and he files a bill to redeem, and afterwards assigns his interest to I).; can any person, who has the slightest experience in this Court, say that the suit to redeem can be maintained? Here I find the fact, that all the adult plaintiffs have parted pro tanto with the whole of their interest to a mortgagee; and my opinion is, that unless their mortgagee is made a party, the suit cannot proceed.” This case was decided in 1843, and the case of Eades v. Harris was decided in 1842.

In 2d Daniel’s Chancery Practice, 1st American edition, by Perkins, at page 957 the author says : “ AVe have next to consider the case of the plaintiff becoming bankrupt, and thereby rendering the suit defective ; and the means by which in such a case the defendant may either get the bill dismissed or compel it to be prosecuted to a hearing. It has before been stated, that the bankruptcy of a sole plaintiff does not strictly cause an abatement, although it renders the suit defective. The bankrupt plaintiff, however, is placed under an incapacity to prosecute the suit, and by the non-prosecution of the suit for a certain time the defendant acquires the right to dismiss the bill. The ordinary order, which is made upon the bankruptcy of the plaintiff before decree, is, that the bill be dismissed without costs, unless the assignees file a supplemental bill within three weeks. It does not seem clear at what period after the bankruptcy the defendant is entitled to move for an order of this nature. According to Sir John Leach, V. C., ‘ it is hardly reasonable, that a bill should be dismissed for want of prosecution as against assignees at an earlier period, than it could according to the practice of the court have been dismissed for want of prosecution, if the plaintiff had not become bankrupt; for that would be to deny to the assignees, who stand in the place of the bankrupt the same time for being advised as to the propriety of continuing the suit, which is afforded to the bankrupt, although - the assignees cannot equally be informed as to the subject of the suit.5 ” And at page 958 of same book it is said : “ The order to dismiss on occasions of abatement, or of the suit becoming defective, must not be confounded with an ordinary order to dismiss for want of prosecution ; the two orders differ from one another so materially, both in the circumstances in which they may be obtained and the form of the order when it is made.’5 See Sharp v. Hullet, 2 S. & S. 496. Also at page 958 Mr. Daniel says substantially, that where the suit becomes defective by reason of the plaintiff becoming bankrupt after suit brought, an order, that the bill should be dismissed without costs within a limited time, if the assignees do not think fit to file a supplemental bill, would be proper, provided the notice of this motion is served on the assignees. Where the defendant after suit brought becomes bankrupt, Mr. Daniel at page 959 of same volume speaks of-what may be done on motion of the bankrupt defendant.

In the case of Deas v. Thorne et als., 3 Johns. 543, the syllabus is as follows: “ On an appeal from an order of the court of chancery postponing the hearing of the cause until the assignees of two of the parties,who had become insolvent pending the suit, should be made parties, this court will not hear or decide the merits of the cause. On an appeal from an interlocutoi’y order of the court of chancery this court will not permit evidence to be read, which was not read in the court below, nor will they hear and decide on the merits, unless the merits have also been heard in the court below. When a party in a cause in chancery becomes insolvent pending the suit, his assignees must be made parties before the cause can be heard.” In this case there were several defendants other than the two, who had become insolvent, and the two insolvents had obtained their discharges, and the chancellor in the court below in 1807 decreed, that the assignees of said two insolvents were necessary parties, and ordered, that the hearing of the cause should be further postponed, until they were brought before the court as parties, and from this order an appeal was taken.

In this case Judge Van Ness, who delivered the opinion of the court, at page 550 says: “ It appears to me, that everything, which has been said to show, that the insolvents were necessary and proper parties to the suit before their discharge, applies with equal force, to prove that the assignees after that event were equally so. They stand in relation to this transaction precisely in the place of the insolvents.”

In the case of Sedgwick v. Cleveland et al., 7 Paige 287, it wras held according to the syllabus : “ As a general rule, the real persons in interest must be parties (o a suit; and where the complainant after the commencement of a suit makes an assignment of his interest under the insolvent laws or otherwise, the assignee must be made a party, before the suit can be further proceeded in. When the complainant assigns his interest in the suit pendente lile, if the defendant wishes to have the suit brought to a termination, his proper course is to apply to the court for an order, that the assignee proceed and file a supplemental hill in the nature of a bill of revivor within such time, as shall be prescribed by the court, or that the bill in the original suit be dismissed. And due notice of the application should be given to the assignee as well as to the solicitor of the complainant. If a defendant voluntarily assigns his interest in the subject of the suit pen-dente lite, the complainant is not bound to make the assignee a party, unless he thinks proper to do so. Aliter where the assignment is by operation of law; as in cases of bankruptcy or assignments under the insolvent acts.”

In this case Chancellor Walworth in delivering the opinion of the court at pages 289 to 292 inclusive says: “If this had been the case of an assignee by the complainant under the insolvent acts, there could have been no possible doubt, that the suit had abated, or rather that it had become so defective, that the complainant could not proceed any further in his own name against the defendant, if the latter had thought proper to raise the objection. This Court requires the real parties in interest to bring the suit, except in certain cases where the complainant represents the rights of those for whom the suit is brought both legally and equitably, as in the case ot executors, or of trustees, or assignees under the insolvent act. And where the sole complainant, who originally brought the suit iu his own name and not in autre droit, is discharged under the insolvent act and makes an assignment of his property for the benefit of his creditors, the assignee must be made a party before the suit can be further proceeded in. Williams v. Kinder, 4 Ves. 387. The proper course for the defendant in such a case, if he wishes to have the suit proceeded in or put an end to, is to apply to the court for an order that the assignee file a supplemental bill, in the nature of a bill of re-vivor, within such time as shall be prescribed by the court for that purpose, or that the complainant’s bill be dismissed. And notice of such application should be served upon the as-signee as well as the complainant in the original suit., (Porter v. Cox, 5 Mad. 80). This proceeding is in analogy also to the statutory direction in case of the abatement of a suit by the death of the sole complainant, where his representatives neglect to revive the suit. (2B. S. 185, §§ 118, 124). From the report of the case of Massey v. Gillelan, 1 Paige 644, it would seem to have been decided, that the suit might be continued, as at law, in the name of the original complainant, upon his giving security for costs. The question however, as to the right of the complainant to proceed without bringing the assignees before the court by a supplemental bill, was neither raised nor considered in that case, as the defendant merely asked, that the suit should not be permitted to proceed in the name of the insolvent debtor, unless security for costs was filed. But in the subsequent case of Garr v. Gomez, in the court for the correction of errors, (9 Wend. 649) the principle, that the suit becomes defective in such a case and cannot be proceed in, if objected to by the defendant, until the assignees are brought before the court, is distinctly recognized. It is proper also to remark, that in the case of an assignment under the bankrupt or insolvent acts the suit is not strictly abated even as to the complainant, but is merely become so defective that he cannot proceed therein, until the assignee is brought before the court. And the assignee becomes so far the legal and equitable representative of the rights of the complainant, that upon a new and supplemental bill in the nature of a bill of revivor and supplement being filed by the assignee,- to continue the proceedings in his own name, it is not necessary to make the former complainant a party thereto which would be necessary in the case of an assignment of only a part of "the interest of the complainant in the subject matter of the suit. The complainant, however, who has still an interest in having his debts paid out of the assigned property, or at least has an interest in the surplus, if there should be any, is not obliged to abandon the suit absolutely, if the suit is necessary for his protection, although the assignee refuses to proceed therein, without making any compromise of the suit with the defendant. In that case the complainant may proceed in his own name; but as the assignee has become a necessary party to all subsequent proceedings in the suit, the complainant must bring him before the court by supplemental bill. (Mitf. PI. (4 Lon. ed.) 66; Story Eq. PI. 282, n.; 2 Johns. Chy.- 18). In such a case, however, the complainant might be required to file security for costs, as directed by the third subdivision of the 1st section of the title of the Revised Statutes relative to the security for the payment of costs. (2 R. S. 620).

“ In the case of defendants where interest in the subject-matter of the litigation becomes vested in others, 'pendente lite, without an actual abatement of the suit, a distinction is very properly made between the transfer of that interest by the mere voluntary act of the defendant, as in the case of a sale or assignment in the ordinary course of business, and a transfer of that interest by operation of law, as upon an assignment in bankruptcy or under our insolvent acts. In the first case the complainant is not bound to make the assignee a party, although he may do so, if he deems it essential to the relief, to which he may be entitled against such assignee. But in the last case the assignee, who has become such by operation of law, has a right to be heard, and must be made a party before the suit can be further proceeded in. The reason of the distinction is obvious. In the first place the assignee, who is a mere volunteer-purchaser pendente lite, cannot defeat the complainant’s rights or delay his proceedings by such purchase; for, if he could do so, the litigation by successive assignments might be rendered interminable. He therefore has no right to be heard, unless he brings himself before the court by a supplemental bill in the nature of a cross-bill, which he may sometimes do to protect his rights as such as-signee; and the decree in the original suit to which such-assignee was not a party will bind the property in his hands. Neither can the defendant, who has made, such voluntary assignment subsequent to the commencement of the suit, urge that as a reason, why the suit should not proceed against him in the same manner, as if no such transfer had been made. In the other case the assignee, upon whom the interest of the defendant has been cast by operation of law for the benefit of others, has a right to be heard for the protection of that interest. And the whole legal and equitable interest therein, which formerly belonged to the defendant, being vested in such assignee by the mere operation of the law itself, he will not be legally or equitably bound by a decree to which he is no party. (Deas v. Thorne, 3 Johns. 544.) The reasons for the difference between the two cases do not exist in relation to the transfer of the interest of the complainant; and where the adverse party makes the objection to his proceeding in his own name without bringing the assignee before the court. The party whose interest in the subject-matter of the suit has become divested pendente lite can only object to the proceedings of his adversary in the suit, where such interest has become vestéd in another by operation of law and not by his own voluntary act. But where the party who has assigned the whole or a part of his interest in the subject-matter of the suit attempts to take any active proceeding therein, the adverse party may object to such proceeding on the ground, that the suit has become abated or defective as to such assignee, so that the «ame cannot be proceeded in until the assignee is made a party. Perhaps there may be some exceptions to this rule, particularly when the adverse party, after he becomes acquainted with the fact of such assignment, does some act or takes some proceeding in the cause, on his part, which amounts to a legal waiver of his right to urge the objection that the suit had abated or become defective by reason of the transfer of the interest.” (This case was decided in 1838.)

I have quoted thus extensively from the opinion of Chancellor IValworth', because in his opinion he enters more extensively and minutely into the questions now being considered by me than any one text-book or authority I have seen bearing upon the subject.

The case of Harmon v. Byram’s adm’r et al., 11 W. Va. 511, was brought to enforce satisfaction of a docketed judgment-lien against the realty of said Byram, who died after the commencement of the suit, and Patton, who presented his petition to the court, was a pendente Ute purchaser of land of Byram, upon which the judgment was a lien. Patton the pendente Ute purchaser prayed the court in his petition to be made a party defendant in the cause, and the plaintiff objected to the filing of the said petition, and the court sustained the objections. The general rule announced in the third and fourth sections of the syllabus of this case is based upon section 15(3 of Story’s Equity Pleading, which I have already cited, and is correct as applied to the case. In that case it is clear, that the plaintiff was not bound to make the pendente Ute purchaser a party thereto. See opinion of Judge Johnson, 11 W. Va. 521, 522, and the authorities I have before cited. But to the said general rule I apprehend there are exceptions, and I think the authorities I have cited clearly show such to be the case. It is apparent from the language of the syllabus to which I have referred, that by the general rule there announced it was not intended to assert, that there were not or should not be exceptions thereto.

In the case of Gillespie et ux. v. Bailey et al., 12 W. Va. 70, the 5th section of the syllabus is : “If the plaintiff, after the institution of a suit to partition land, sells the land, the case properly proceeds in his name, as though no such sale had taken place.” In this ease Bailey, one of the defendants, in his answer alleges, that he is informed and believes, that the complainants a few days before the commencement of the suit, by a deed, while he was in the adversary possession of the land, conveyed it to John J. Jackson, their attorney, for |300.00, of which $200.00 was to be paid on a contingency; and that John J. Jackson was prosecuting the suit at his own costs and for his own benefit in the name of the complainants ; and the complainants having no interest in the land when the suit was brought and said Jackson being guilty of maintenance and champerty the suit ought to be dismissed. See page 88. At page 87 Judge Green, who delivered the opinion of the Court, says upon this subject: “The burden of proof being on the defendant, Bailey, to show that the deed was made before the service of the summons in this action, he has failed to meet this burden ; for his evidence fails to prove, that this deed was made before the institution of this suit. The date given by one of the magistrates would be before, but that given by the other would be since. If the deed was executed since the institution of the suit, it would have no effect upon it as Jackson would then be a ¿is pendens purchaser; and the suit ought to be prosecuted precisely as if he had not purchased. There is no evidence to show by whom the costs of this suit were borne. We need not therefore enquire into the correctness of the legal positions taken on this point in Bailey’s answer, as they do not arise, the facts necessary to raise such a question not being proven.” This is substantially all the judge said upon the subject and is all that is material appearing in the case, so far as I have been able to ascertain. It does not appear, that the defendants or any of them had ever made any suggestion in the court below, that the suit had become defective after its commencement by reason of the defendant having subsequent to its commencement conveyed his interest in the subject of the suit to Jackson, and objected in any way to the suit proceeding further before the court without Jackson becoming a party thereto by proper bill or otherwise, because of his having conveyed his interest in the subject of the suit to Jackson, after the suit was commenced, notwithstanding the suit had been pending in the circuit court for a great many years prior to its decision.

Under this State of the case Judge Green in his opinion simply announced according to my understanding the general rule as to Us pendens purchasers, and that it was proper under the circumstances in that case appearing before the Appellate Court, that the cause should have proceeded, as it did, before the court below in the name of the complainants. I do not understand the syllabus I have quoted or the opinion of Judge Green on that subject to have declared or to have intended to declare a universal rule or principle, to which there were no exceptions; or that in that particular case the ruling should or would not have been different according to the principles and rules of courts of equity under a different state of facts and cii'cu instances.

After considering the authorities, to which I have referred, I have arrived at the following conclusions, viz : A court of equity requires tbe real parties in interest to bring the suit, .except in certain cases where the complainant represents the rights of those for whom the suit is brought, both legal and equitable, as in the case of trustees or assignees under insolvent acts, or assignees in bankruptcy. And where the sole plaintiff, who originally brought the suit in his own name and not in autre droit, is discharged under insolvent acts and makes an assignment of his property for the benefit of his creditors, or where such plaintiff has been declared a bankrupt, the assignees must be made parties before the suit can be further proceeded in. In such case or cases the suit does not abate in the strict meaning of that word, but becomes so defective, that it cannot be further proceeded with in their absence. And in some other cases, where the transfer pendente lite is considered as a transfer by operation of law and not voluntary, perhaps the same rule should be applied. Where the sole plaintiff voluntarily transfers or assigns his interest in the estate or property, which is in controversy in the suit, • after the suit is brought, the suit does not thereby abate, and in many cases it does not thereby become so defective, that it cannot be further proceeded with, unless such transferee or assignee is made a party thereto, for the reason that in such case such transferee or assignee is a lis pendens purchaser from the plaintiff and as a general rule in such case is bound by the decision of the suit, in which the estate or property transferred or assigned is in controversy. But perhaps there may be cases, where, if the sole plaintiff transfers or assigns his interest in the estate or property, after the suit is brought, the suit thereby becomes so defective, that it cannot be proceeded in to final adjudication, until the transferee or assignee is made a party. It is unnecessary for me to undertake to specify such cases at this point. But where the sole plaintiff voluntarily transfers or assigns his interest in the estate or property in controversy in the suit, after the suit is brought, although the suit does not thereby abate, still it may be considered as having thereby become more or less defective according to the circumstances of the case under the rules and principles governing courts of equity; and in such case the defendant may object to the cause further proceeding without such transferee or assignee being made a party plaintiff and may apply to the court for an order, that such transferee or assignee proceed and file a supplemental bill in the nature of a bill of revivor within such reasonable time, as shall be prescribed by the court, or that the suit be dismissed. And due notice of the application should be given to the transferee or assignee, as well as to the plaintiff or to his counsel in the cause.

It seetns to me however, that the fact of such transfer or assignment may also be brought into the cause by answer properly supported, not. as matter in bar to the suit or in abatement thereof, and the defendant may procceed by rule served upon the transferee or assignee and upon the plaintiff or his counsel in the cause, as was done in the case at bar. Upon such proceedings being had, if it appear to the court, that the plaintiff has transferred or assigned his interest in the subject of the suit, the court may order, that unless the transferee or assignee do file such supplemental bill within a reasonable time thereafter, the original bill shall be dismissed, &c. And the court in such case should dismiss the suit, unless its order be complied with, except in a case where the cause does not appear to have beconjfc so defective by reason of the transfer or' assignment that it cannot be proceeded with, and the defendant has been in default for an unreasonable time after knowledge of such transfer or assignment in taking action for the requirement of the supplemental bill in the nature of a bill of revivor to be filed or the dismissal of the bill.

I apprehend, Lhat where a sole plaintiff after suit brought in equity in his own name voluntarily transfers or alienes his entire interest in and to the subject in controversy in the suit, even when such transfer does not render the suit so defective, that it cannot be further proceeded with without such transferee or alienee becoming party to the suit, it is competent and in some cases eminently just for the defendant to be entitled to insist, that such transferee or alienee shall become a party to the suit, or that the same shall be dismissed, and this especially so with reference to his costs of suit. There is an obvivous difference between necessary parties to a suit and proper parties thereto, as we have already seen. We have already seen, that if the party aliening .be the plaintiff to the suit, and the alienation does not extend to his whole interest, he may also bring the alienee before the court by a supplemental bill. And I apprehend the defendant may require it to be done, if he acts in proper time.

The deed from the plaintiff to Gilbert G. Sawtell, dated the 23d day of April, 1874, in the supplemental answer mentioned is valid to convey to said Sawtell the plaintiff’s right to the purchase-money of that part of the land in controversy conveyed by the plaintiff and his wife by deed dated the 14th day of April, 1874, to Theodore Fink in trust, &c., in said supplemental answer mentioned'. Zane v. Sawtell et al., 11 W. Va. 43. I presume however, that the lots in said deed-of-trust are a part of the eight acres conveyed by John Fink to the defendant, Caroline ~V-. Zane, by the deed in the bill mentioned, though this does not distinctly appear. The said deed from the plaintiff to said Sawtell upon its face in effect not only conveyed and passed to Sawtell all of plaintiff’s right, title and interest in the purchase-money of that part of the land in controversy in this suit conveyed by the plaintiff and his wife by deed dated the 14th day of April, 1874, to Theodore Fink in trust, &c., but the plaintiff’s entire interest in -the residue of the land in controversy atifche date of the said deed from the plaintiff to said Sawtell. According to the theory of the plaintiff’s bill, admitting its allegations to be true, he had at the commencement of this suit at most, if anything, only an equitable interest in the land, or perhaps I should more properly say, the equity of redemption thereof. He had previously passed from himself the legal title thereto by deed. The plaintiff after the date of the deed to Sawtell, according to the face of the deed, ceased to have any interest in the subject in controversy in this suit, and it seems to me, that under such circumstances, if the fact were true, according to sound equitable rules the defendants, if they did not delay action too long or otherwise waive their privilege, might have been entitled to require Sawtell to become a plaiutiff to the suit by proper bill, or to have the suit dismissed, unless something else appeared as to the interest of the plaintiff in the subject of the suit. But it seems to me, that the question, whether the plaintiff had in fact parted with his entire interest in the subject in controversy, was not put in issue or passed upon by tbe court below; and that it in fact was not necessary for the court to pass upon that question under the answers to the rule. Upon sound principles defendants by laches and unreasonable delay and other acts, such as are mentioned in the answers to the rules in this case, may and should be considered to have waived their privilege in this respect, if such right in fact did exist under the facts of the case, especially where no sufficient excuse is shown for such laches and delay and action, if the transferee or assignee are not necessary parties to the suit.

In this case it appears, that the defendants made no objection whatever to the case proceeding in the name of the plaintiff for nearly two years from the date and recordation of the said deed to Sawtell; and they do not attempt to give any excuse whatever for such delay; and in connection therewith they otherwise did and acted in the cause after the recordation of said deed to Sawtell, as in the said answers to said rule is stated and set forth. And taking all these matters together I think it should be taken and considered, that the defendants waived whatever right or privilege they may in fact have had to object to the cause being further proceeded with in the name of the plaintiff without Sawtell becoming a party plaintiff, because if Sawtell is in fact the owner of plaintiff’s entire interest, he is a Us pendens purchaser from the plaintiff, and in that case he will be bound by the decision of this suit, so far as the defendants are concerned, as much as though he was an actual party thereto. Our statute touching the recording of notice of Us pendens does not apply to such a ease; and I do not consider Sawtell as being a necessary party to the suit, if he is in fact the owner of plaintiff’s entire interest in the subject in controversy or a part thereof. The plaintiff must be considered as prosecuting this suit for his own benefit or for the benefit in whole or in part of said Sawtell as a Us pendens purchaser; and it is immaterial and unnecessary for this court to ascertain and determine under the circumstances, for the benefit of which of the two the suit was prosecuted in whole or in part in the court below; for whether the suit wras in fact prosecuted for one or the other in whole or in part, the plaintiff, James W. Zane, had the right to apply for and prosecute this appeal. The order of the court discharging the said rule was not appealed from ; and I doubt if it could be under our law, even if erroneous; but I do not now decide that question, as it is immaterial in this case.

Entertaining these views I do not think the court erred in discharging the said rule. The defendants in their supplemental answer seem to have supposed, that the matters therein set up were matters in bar or abatement of the suit, which is a mistake under the authorities upon the subject.

I will now proceed to consider this cause upon the appellant’s assignment of errors contained in' his petition for an appeal and supersedeas. The errors assigned and relied upon are as follows:

“1. The court erred in suppressing the deposition of your petitioner, so far as it affected Caroline V. Zane.

“2. The court erred in suppressing the said deposition, so far as it related to personal transactions or communications with said Theodore Fink.

“3. The court erred in dismissing the bill of complaint.

“4. The said decree is in other respects uncertain, informal and erroneous.”

The first assignment of error considered. — The 22d and 23d sections of chapter 130 of the Code of this State of 1868 are as follows: “22. No person offered asa witness in any civil action, suit or proceeding, shall be excluded by reason of his interest in the event thereof. 23. A party to a civil action, suit or proceeding may be examined as a witness in his own behalf, or in behalf of any other party in the same manner and subject to the same rules of examination as any other witness, except as follows :

“I. An assignor of a chose in action shall not be examined in favor of his assignee, unless the opposite party be living.

“II. A party shall not be examined in his own behalf in respect to any transaction or communication had personally with a deceased person, against parties who are the executors, administrators, heirs-at-law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action from or through such deceased person, or have been sued as such executors, administrators, heirs-at-law, next of kin, or assignees but where such executors, administrators, heirs-a*-law, next of kin or assignees shall be examined on their own behalf in regard to any conversation or transaction with such deceased person,’then the said " assignor or party may be examined in regard to the same conversation or transaction.

“III. If a deposition of a party to the action, suit or proceeding has been taken, and he shall afterwards die, and after his death such deposition be used upon any trial or hearing: in behalf of his executors, administrators, heirs-at-law, next of kin, or assignees, the other party or assignor, shall be a competent wilness as to any and all matters to which such deposition relates.

“IV. This and the preceding section shall not apply to any action, suit or proceeding prior to the 7th day of February, 1868, in which a judgment or final decree has been obtained, and a new trial or re-hearing has been or shall be awarded therein ; but in all such actions, suits or proceedings, the rules of evidence shall be the same as if this and the preceding section had not been enacted.

“V. A husband shall not be examined for or against his wife, nor a wife for or against her husband, except in an action or suit between husband and wife.

“VI. A guardian, committee, or other fiduciary shall not be examined as a witness against his ward, or the person he represents as to any transaction in his fiduciary capacity, unless the ward or person affected thereby is in a condition to testify as to the same transaction.

“ VII. A party to an action, or person interested in the event thereof, shall not testify in his own behalf against a deaf or dumb person, unless the evidence of such deaf or dumb person has been taken in the case.”

It has been held by this Court, that these sections of chapter 130 of the Code of 1868 make no material change in the common law as to husband and wife giving evidence for or against each other in a cause, in which they are parties, except in an action or suit between husband and wife; that in such case the 23d section, and especially the fifth exception thereof, so modifies the common law as to allow husband and wife to be witnesses for and against each other in suits between themselves; that it may be that in some cases brought by husband and wife, for certain causes of action, the toife, where she is the meritorious cause of action, may be admitted to give evidence, but this question did not arise in the case, to which I refer, and was not therein decided. Hill et ux. v. Proctor; Proctor v. Hill, ux. et al., 10 W. Va. 59, 82 and 83. By the common law it seems, that neither the husband nor wife is admissible as a witness in a cause civil or criminal, in which the other is a party. This rule is founded partly on the identity of their legal rights and interests, and partly on principles of public policy. The principle of this rule requires its application to all cases, in which the interests of the other party are involved. Nor is there any difference in principle between the admissibility of the husband and that of the wife, where the other is a party. And when the husband or wife is not a party to the record, but yet has an interest direetly involved in the suit, and is therefore incompetent to testify, the other also is incompetent. 1 Greenl. on Ev. §§ 334 to 341 inclusive, and cases there cited in notes. See also Hill et ux. v. Proctor, 10 W. Va. 82.

In the case of Lawrence et al. v. DuBois et al., 15 W. Va. 443, it was held, that “in a suit, where a husband and wife are defendants, the evidence of the husband cannot be received for the wife.” In this case at page 458 Judge Green in delivering the opinion of the Court says: “The New York authorities, referred to by the appellee’s counsel to show, that a husband may be a witness on behalf of his wife, are entirely inapplicable, as they hold this is so only by virtue of their statute-law, which is mafceriallydifferent from our statute-law. The 5th section,” meaning the fifth exception, “above quoted is not, and never has been a part of the New York statutes; and it was inserted expressly to prevent the interpretation being put on our laws, which by these New York decisions had been put upon their statute-law.”

The said sections 22 and 23 of the 130th chapter of the Code of 1868, with a part of said exceptions contained in said section 23 were first enacted by the Legislature of this State on the 7th day of February, 1868, before the passage of the Code of 1868. See Acts of 1868, pages 10 and 11. The 1st section of the act of 1868, is the same as the 22d section of chapter 130 of the Code; and the 2d section of said act is the same as said 23d section of said chapter down to the first exception therein. The first exception contained in said 23d section is the same as the first exception contained in the 2d section of said act, with the exception that the words “and in reach of the process of the court,” contained in the exception in the act and at the end thereof, are omitted in the said 23d section. The 2d, 3d and 4th exceptions contained in the said 23d section are the same, as the 2d, 3d and 4th exceptions contained in the said 2d section of said act. Butthe 5th, 6th and 7th exceptions contained in the said 23d section are not contained in the 2d section of said act or any other part thereof; they are additions to the exceptions contained in the said 2d section of said act enacted by the Legislature for the first time in the Code of 1868. After the passage of said act of 1868, it was supposed by some of the legal profession, that one effect of section 2 thereof was the repeal of the common law rule as to the incompetency of a husband and wife to testify for or against each other, at least where they were parties to the record ; and others claimed, that such was not the effect or purpose of the Legislature, that the only purpose of the Legislature in the passage of said act was by the 1st section thereof to render competent as witnesses all persons, who were excluded by the common law simply because of their interest in the event of the suit, and by the 2d section thereof to repeal or modify the common law rule, “that a party to the record in a civil suit cannot be a witness either for himself, or for a a co-suitor in the cause” (1st Greenl. on Ev. §§ 329, 330), and that it was not the purpose or intent of the Legislature in enacting either or both of said sections of the act to repeal the common law rule as to the incornpetency of a husband and wife to testify for or against each other.

Under this condition of things the Legislature in framing the Code of 1868 in effect amended and re-enacted the said act of February, 1868, as it now appears in the 22d and 23d sections of chapter 130 of the Code. Divesting said 23d section of all exceptions therein contained except the 5th, it reads as follows: “A party to a civil action, suit or proceeding may be examined as a witness in his own behalf, or in behalf of any other party in the same manner and subject to the same rules of examination, except as follows: * * * A husband shall not be examined for or against his wife, nor a wife for or against her husband, except in an action or suit between husband and wife.” This section thus rendered certainly may be construed as enacting a general rule but with an exception thereto. The general rule is the common law rule, and the exception is an innovation upon that rule and makes the husband and wife respectively competent to testify for or against each other, where the action or suit is between husband and wife. Now the question is, what does the Legislature mean, when it says in said 5th exception, “except in an action or suit between husband and wife.” The literal construction of these words, when read in connection with what has preceded, it seems to me, is this: except in an action or suit between husband and wife alone; that is to say, in an action or suit in which the husband and wife alone are parties to the record. But in my judgment the literal meaning of these words is not the meaning intended by the Legislature. For if this be so, then in an action or suit, in which the husband was a plaintiff and the wife a defendant, to which there were other parties merely formal, without any material interest in the controversy involved in the suit, the husband and wife would each be incompetent to testify in the case for or against the other. This surely could not have been the intent or purpose of the Legislature by the use of these words in the connection in which they are employed — it falls short of what, it seems to me, was the manifest purpose of the Legislature from reading the said exception contained in said exception five with what precedes and follows it.

It must be admitted, that the said fifth exception is so written, that it is complex, and its meaning not plain when literally construed. But reading the whole of said exception together and with what precedes and follows, it seems to me, that the spirit, purpose and intent of the Legislature by the use of the said words “except in an action or suit between husband and wife” was, that a husband and wife should be competent to testify for or against each other in a suit touching any matter in controversy involved therein between themselves alone, whether they are the only parties to the suit or not. In my judgment it must be held in construing •the said fifth exception, to carry out .the purpose and intent of the Legislature thereby, that where a husband and his wife and another or others are parties to a suit, the husband and wife are incompetent to testify as witnesses for or against each other, except as to a controversy or controversies between the husband and wife alone, in which the husband and wife are alone materially interested, involved in such suit; or in other words, where a husband and his wile and another or others are parties to a suit, the husband and wife are incompetent to testily for or against each other as to any controversy, to which such other or others are parties having a material interest involved in the suit; but in any controversy or controversies between husband and wife alone, in which they alone are materially interested, involved in such suit the husband and wife are competent to testify for or against each other.

To this construction there may be some exceptions not now occurring to me or arising in the case at bar, which must be passed upon, as they shall hereafter be presented. I do not venture now to give a fall» and complete construction of said exception five as to all questions, which may arise or be presented under it; but only to ■ construe its meaning, in so far as it is material or necessary to determine correctly the questions presented thereunder in this case.

The object and purpose of taking the deposition of the plaintiff (James W. Zane) filed in this cause was to prove the material allegations of the bill, to prove that in fact the deed from the plaintiff and his wife to Theodore Fink for the land therein conveyed in the bill mentioned was but a mortgage in equity, or facts from which a court of equity under the principles and rules, which govern it in such case, is authorized to declare said deed a mortgage to secure said Theodore Fink for debts of the plaintiff, which he might pay, and which he agreed to pay and did pay, and to prove that the defendant, John Fink, at the time he received the deed from Theodore Fink and his wife for the same land in the bill mentioned, had notice, that said deed t© said Theodore Fink was in fact only a mortgage for the purpose aforesaid, and that he took the deed from said Theodore Fink and wife subject to such mortgage and to secure the said John Fink in any of said debts he might pay, &c.

It is alleged in the bill, that after the date of said deed from Theodore Fink and wife to John Fink for said land the said John Fink and his wife executed to his daughter, Caroline V. Zane, the wife of the plaintiff, a deed conveying to her in consideration of “ natural love and affection and five dollars,” about eight acres of said land so conveyed to him by said Theodore ; and the bill charges, that said deed to said Caroline V. Zane was without any reasonable consideration in fact (which is not denied in the answer) and that it is void as to him. Now it is plain, that under the allegations and prayer of said bill and the other pleadings in the case the deposition of the plaintiff tending to prove, that the deed from-him and wife to said Theodore Fink and wife, and the deed from said Theodore Fink and wife to said John Fink were of the character above alleged, is against his wife as to a controversy or controversies between the plaintiff and his wife involved in this suit, to which the plaintiff and his wife are not the only parties thereto materially interested. Said Theodore Fink and John Fink are made defendants to the bill and they are also parties to said controversy and materially interested therein. It is true, that said Theodore Fink died after the plaintiff’s said deposition was taken in the cause, but after his death Angeline P. Fink, the wife of said Theodore Fink, was appointed administratrix of her husband’s estate ; and this suit was revived against her as such administratrix as a defendant, and she upon the revival of the suit against her as such administratrix became a party to said controversy or controversies in place of her husband. It has been suggested, that after the plaintiff conveyed the land in controversy to Sawtell he ceased to be more than a formal party, except as the representative of Sawtell, and that he therefore is competent to testify for or against his wife in the cause. It seems to me, that the spirit of said fifth exception is against this position as well as the common law unrepealed by said 22d and 23d sections, and that the case of Hill v. Proctor, ubi supra, in effect settles that question. The rule, which restricted husband and wife from testifying for or against each other, was no^t based upon a supposed interest in the suit but upon grounds of public policy. Burrell v. Bull, 3 Sandf. Chy. 15; Erwin v. Smaller, 2 Sandf. 340; see 6 Abbott’s N. Y. Dig, R. and Stat. pp. 195, 196, §§150 and 153 and the cases there cited. Under the views I have expressed as to the law in this case and the tacts, appearing it seems to me that the circuit court did not err in suppressing the deposition of the plaintiff as against the said Caroline V. Zane.

The second assignment of error considered. As we have seen, the second exception contained in the said 23d section of chapter 130 of the Code provides, that “A party shall not be examined in his own behalf in respect to any transaction or communication had personally with a deceased person, against parties who are the executors, administrators, heirs at law, next of kin, or assignees of such deceased person, where they have acquired title to the cause of action from or through such deceased person, or have been sued as such executors, administrators, heirs at law, next of kin, or assignees. But where such executors, administrators, heirs at law, next of kin, or assignees shall be examined on their own behalf in regard to any conversation or transaction with such deceased person, then the said assignee or party may be examined in regard to the same conversation or transaction and the third exception contained in the same section provides, that “ if the deposition of a party to the action, suit or proceeding has been taken, and he shall afterwards die, and after his death such deposition be used upon any trial or hearing in behalt of his executors, administrators, heirs at law, next of bin, or assignees, the other party, or assignor, shall be a competent witness as to any and all matters, to which such deposition relates.-”

In the case of Owens v. Owens’s adm’r, 14 W. Va. 88, an action of assumpsit brought by the plaintiff against the defendant as administrator of his decedent, to recover chiefly for work and labor done by the plaintiff : for the defendant’s decedent during his life, under said second exception it was held: “ 1. That the circuit court erred in permitting the plaintiff to testify as a witness in her own behalf as to her work and labor and services rendered for the deceased and what things she did in and about the labor, she claimed to have performed for the deceased in his lifetime, whilst she lived with him and had taken charge of the house-bold affairs of the deceased and had sold produce and bought provisions for the house with such produce and nursed deceased in his sickness. 2. That the plaintiff was incompetent to testify as a witness in her own behalf to said matters under the provisions of paragraph II of the 23d section of chapter 130 of the Code of 1868 of this State.”

The deposition of the plaintiff in question appears to have been taken on the 21st day of December’, 1874. It does not appear, when the said Theodore Fink died ; but it does appear, that on the 19th day of April, 1875, the death of said Theodore Fink was suggested in court, and that his widow, Angeline P. Fink, had been appointed his administratrix; and the cause was revived against her as such adminis-tratrix in place of her husband. It must, be taken, that said Theodore Fink died between the date of the taking of plaintiff’s said deposition and the revival of the cause against his administratrix on the 19th day of April, 1875. It seems, that both plaintiff and defendants took depositions in the cause after the death of said Theodore Finlc. The deposition of said Theodore Fink does not appear to have been taken after the deposition of the plaintiff was taken, nor was it taken before, so far as appears by the record. The cause first came on to be heard on the 5th day of May, 1877, when the court directed an issue to be tried by jury. Afterwards, on the 23d day of March, 1878, the court set aside the order directing an issue to be tried by a jury and suppressed the plaintiff’s said deposition as to his wife, Caroline V. Zane, and also suppressed the plaintiff’s said deposition, so far as it relates to personal transactions or communications with the said Theodore Fink, deceased, as against the said Angeline P. Fink, administratrix, &e., as set forth in the decree of that date. The court at the date last aforesaid finally heard the cause and dismissed the plaintiff’s bill.

It does not appear, that the deposition of the said Angeline P. Fink administratrix as aforesaid was ever taken in the cause. It does not appear, that the depositions of any of the heirs or next of kin of said Theodore Fink were taken in the cause. It does appear, that the deposition of the defendant, John Fink, his father, was taken in the cause and I infer was read as evidence at the hearing ; but John Fink states in his deposition, that he was not present at the time the deed was made, and does not testify as to tbe communications and transaction, which the plaintiff testifies in his deposition was had by and between him, plaintiff, and said Theodore Fink at the time the deed was made, or as to any communication or transaction, as to which plaintiff testifies in his own behalf, which was suppressed by the court as against said Theodore’s administratrix; and these last named communications and transactions, as to which the plaintiff testifies, are the material parts of plaintiff’s deposition as to communications between plaintiff' and said Theodore, deceased, and the transaction of making said deed of conveyance by him, plaintiff, to said Theodore Fink, deceased. It is not pretended, that if the plaintiff’s deposition as to said communications or transactions had been taken in his own behalf after the death of said Theodore Fink, it was competent under the circumstances to read it in his own behalf as evidence against the administratrix of said Theodore. And it seems to me, that if it were claimed, that it would be competent to read the plaintiff’s deposition under such circumstances in his behalf as to said communications or said transactions as against the administratrix of said Theodore, such claim is not sustained or authorized by the said second or third exceptions contained in said section 23. Does the fact, that the said deposition of the plaintiff was taken before the death of said Theodore Fink, and that said Theodore was present by his counsel and cross-examined the said plaintiff, make any difference in fact as to the competency or authority to read the said deposition after the death of said Theodore against his administratrix ? Suppose it appeared in the case, that said Theodore was taken suddenly ill and died within an hour after the deposition of plaintiff was taken ; or suppose he had been taken sick in a day or a week after plaintiff’s deposition was taken, and his condition from that time to his death, whether for weeks or months, was such that he was unable to give his deposition from any cause, is it contemplated by the said second exception, that in such cases it is competent to read the deposition of the plaintiff against the administratrix of said Theodore Fink, deceased, except in the cases provided for in the last clause of said exception? I answer emphatically in the negative.

When is the court called upon to determine the question, whether a party shall be examined in his own behalf as to communications or a transaction had personally with a deceased person, &c., and what is the meaning of the words “ shall not be examined ” in their connection in said exception two ? It is manifest to me that the words “ shall not be examined” mean the same as, shall not testify, &c., or shall not give evidence, &c., or his evidence as a witness shall not be heard, received or read in his own behalf against the administrator, &c. The first clause of said exception two establishes a rule as to the subject of the said exception to the first clause of said 23d section ; and the last clause of said second exception establishes an exception to that rule. And the said third exception also establishes another exception to the same rule. The deposition of parties or other witnesses as a general rule are not taken before the court in suits in chancery. They are taken out of court; and generally the court cannot determine the right of a party to testify as to any matter, as to which he is examined, when he gives his deposition.

In the case of Quick v. Brooks, adm’r., 29 Ia. 484, it was held according to the syllabus, that “where pending an action the defendant died, and his administrator was substituted, the deposition of plaintiff taken in the action before the death of the decedent was not admissible in behalf of the plaintiff in view of section 3982 of the Revision, which prohibits a party from testifying, when the adverse party is the executor or administrator of a deceased person.” Judge Wright in delivering the unanimous opinion of the Court at pages 485 and 486 says: “The single question then is, can this deposition, taken in the life-time of the intestate, in reference to matters transpiring before that time, when he was present and had full opportunity to cross-examine, be used as evidence after his death, against the objection of the administrator. It seems to us, that the spirit and meaning of the law, forbid the admission of the testimony, and that the ruling below was no error.

“We quote the language of the statute (Rev. § 3982) as we have in many prior cases, that no person shall be allowed to testify under the provisions of section 3980 (which makes parties competent to testify), where the adverse party is the executor of a deceased person, when the facts to be proved transpired before the death of such deceased person etc. Within the meaning of this statute when did plaintiff testify? At the time his deposition was taken, or at the time of its use at the trial? We clearly think the latter. * * When is the court called upon to determine the question as to the right of the party to testify ? When he gives his deposition or when it is offered in evidence ? Clearly the latter, for it is not until then that a question can be made ; it is not until then, that in any judicial sense the fact, that one or the other of the parties is dead or in life, can be at all known. Then too, we must not forget, that while the statute in its prior sections declares all persons competent to testify, it in the section under consideration, introduces the exceptions in question, to the effect, that one party shall not testify after the death of the other, of facts transpiring before such death. The theory of the general statute, innovating as it did so thoroughly upon the rule of the common law, was, that light should not be excluded because it might come from a possibly interested source, and hence, that these persons, the parties who were presumed to know more about a transaction in dispute than all others, should each be allowed to give their own version of the transaction, leaving the jury to judge of their credibility. But in perfect harmony with this general theory, and in the utmost accord with the reason of the law, it was deemed wise to provide, that if one could not by reason of death, give his version, neither shall the other. The want of opportunity to assist in the preparation of the cause by the decedent is not the sole ground for excluding the testimony of the survivor, nor by any means the principal ground. The prime reason is found in the inability of the party to oppose his statements, his testimony, to that of the surviving adversary. And this has been more than once announced as the reason of the law. Watson v. Russell, 18 Ia. 80; Bradley v. Kavanagh, 12 Ia. 273; Roman v. Hay’s adm’r, Id. 270; Shaffer v. Dean, ante 144.” This case was decided in 1870.

In the case of St. Clair v. Orr, 16 Ohio St. 220, it was held by the Supreme Court of the State of Ohio, that “ where a party to an action, being a non-resident of the county wherein the action is pending, causes his deposition in the case to be taken and filed, and afterwards, and before trial, the opposite party dies, and his personal representative is substituted in his place, such deposition is inadmissible in evidence on the trial, to the same extent as the oral testimony of the surviving party would be, if offered on the-trial.” This case was decided in 1865.

Within the meaning of the said second exception contained in said section 23 it seems to me, that a party testifies in his own behalf at the time his deposition taken in his own behalf, is used on the trial in a case at law or in a- case in chancery, is read at the hearing of the cause and not at the time, when the deposition was written down; and that if the deposition of a party is so taken and filed, whether taken and filed in the lifetime of the testator or not, as to any communication or transaction had by him personally with a decedent, such testimony is not competent to be used or to be read against a defendant, who is administrator of such decedent in a case at law or in chancery, except in a case provided for by the last clause of said second exception or the third exception contained in the said 23d section. I think, that the want of opportunity to assist in the preparation of the cause by the decedent is not the sole ground for excluding the testimony of a party in his own behalf as to any communications or transactions had personally by such party with a decedent as against a defendant, who is administrator of such decedent, with'the exceptions aforesaid. The principal reason is found in the inability of the decedent by reason of death to oppose his statements, his testimony, to the adversary whose deposition has been taken in his own behalf, or whose testimony is so offered in relation to such personal communications or transactions. I see no reason why the same rule does not or should not apply substantially in suits in chancery and actions at law, as to the deposition of a party under the said second and third exceptions contained in said 23d section.

But the deed from the plaintiff to said Sawtell conveying to Sawtell “all the right, title and interest” of the plaintiff in and to the real property, which is the subject' of this suit, was made on the 23d of April, 1874, and admitted to record on the same day. And it is insisted, that the plaintiff at the time he gave his deposition, which was several months subsequent to the date of said deed, was not testifying in his own behalf, but in behalf of said Sawtell, and so at the time parts of the deposition were suppressed as to the administratrix of Theodore Fink, deceased, which in fact was at the hearing of the cause. This suit was brought by plaintiff in his own name and for his sole use on the 4th day of April, 1873, more than one year prior to the said deed to said Sawtell; and, as we have seen, the plaintiff’s bill was filed in the cause in August, 1873, nearly a year prior to the date of said deed. Sawtell is not a party to the record. The plaintiff and Saw-tell for some reason or reasons best known to themselves, as we have seen, objected to said Sawtell being made a party plaintiff to this suit, and succeeded in their said objections in the court below. The only party plaintiff to the record in the court below was the plaintiff James W. Zane; and the cause having been decided against him by the dismissal of his bill, he appealed to this Court. This suit was prosecuted in the court below by the plaintiff throughout, as though it was his suit and for his benefit; and there is nothing in his said deposition to indicate otherwise, or from which the contrary may or can be inferred ,• and so as to all the other depositions of witnesses.

The question, whether the plaintiff had passed his entire interest in said property to said Sawtell, was in fact not put in issue in the cause in the court below.' The effect of the decision of the court below was, that under the circumstances stated in the answers to the rule the rule should be and was discharged. Neither Sawtell nor the plaintiff in his answer to the rule admits, that the plaintiff had in fact parted with his interest in said property, nor is it stated or claimed in either of said answers, that Sawtell claimed or was entitled to said property in whole or in part by virtue of said deed. If Sawtell had been made a party plaintiff to the suit by proper bill, it is to be presumed, that such bill would have stated his interest in the subject of the suit, and then the whole matter of interest of Sawtell as well as of the plaintiff could have been put in issue, seen and passed upon by the court intelligently and satisfactorily. But, as we have already seen, both plaintiff and said Sawtell successfully refused this course, and chose and preferred, that the suit should proceed in the name of the plaintiff as his suit to final determination. I do not mean to indicate, that if said Sawtell had made himself a party plaintiff in the cause, it would then have been competent to read the supposed parts of said deposition against the personal representative of the said Theodore Fink, deceased.. I express no opinion on that subject, because not neccessary in this case.

Under the circumstances and the fact, that said James W. Zane was and continued to be the only plaintiff to the record in the cause and of course the only person as such liable to the costs, it seems tome, that the court below could regard him only as the plaintiff in the cause before it up to the time of the decision of the cause without regard to the relations, which may in fact have existed between him and said Sawtell, either at the time plaintiff’s deposition was taken, or when the said deposition was suppressed by the court. And under all the circumstances the court below on the motion to. suppress the deposition of the plaintiff ought not to have overruled the same, upon the ground that the plaintiff after the commencement of the suit had become only a formal party to the suit. To have done so under the circumstances would have been to allow an unauthorized evasion of the statute in such a case. But again it seems to me, if there were no other objection to said deposition, that John Fink being the grantee of said Theodore Fink must be considered as embraced and included in the word “assignees” contained in the statute. It is true, the grantees are not named in the said second exception, but still they are within the reason thereof. (Mattoon v. Young, 45 N. Y. 696). The deposition of said John Fink the grantee of Theodore Fink, deceased, was taken and read in the cause as evidence, and in so far as the deposition of said John Fink speaks in regard to a conversation or transaction between the .plaintiff and said Theodore Fink, deceased, the deposition of the plaintiff might perhaps be read, if there was nothing else in the way, in so far as it relates to the same conversation or transaction, but not as to any other conversations or transactions between the plaintiff and said Theodore, deceased, under the last clause of said exception two. So much of the said deposition of the plaintiff, as was suppressed as to the defendant, Angeline P. Fink, as administratrix of said Theodore, deceased, as. relates to communications and transactions be- • tween plaintiff and said Theodore Fink, deceased, to which said John Fink, as befo.re stated, does not testily in his deposition, cannot therefore be read in. this Court under the circumstances against said John Fink, though the court below did not suppress any part of said deposition of plaintiff as to said John Fink. (French v. French, 14 W. Va. 505.)

The said third assignment of error considered. Parol evidence can not be admitted to vary or add to a deed as a general rule; but if a grantee in a deed has procured it by fraud, he will be held by a court of equity to be a trustee of the real owner; or if land purchased with the funds of one party is conveyed to another, the grantee will be held a trustee for the real purchaser ; or if the scrivener of a deed has made a mistake in drafting it, a court of equity will correct such mistake; or a deed absolute on its face may be shown by parol evidence to be a mortgage to secure a loan or a precedent debt. These however ought to be regarded not properly as exceptions to the general rule but as cases, to which this rule has no proper application. If a party obtains a deed without any consideration upon a parol agreement, that he will hold the land in trust for the grantor, such trust will not be enforced, as it would violate the statute of frauds, and the general rule, to permit parol evidence to establish such a trust. But if a party obtains a deed without any consideration upon a parol agreement, that he will hold the land in trust for a third party, such a trust so proven will be enforced in a court of equity; as to permit a party to hold the land so obtained for his own use would be to permit the grantee to commit a fraud. (Troll et al. v. Carter et al., 15 W. Va. 567.) Though a deed be absolute on its face, the real nature of the transaction can be proven by parol evidence or surrounding circumstances and the deed will be held to be a • mortgage. The following circumstances have great weight in determining, that a deed absolute on its face is a mortgage: First, Where the parties admit, that the grantor owes after the execution of the deed the consideration of the land to the grantee as a debt. Second, If this alleged consideration is grossly inadequate. Third, If the vendor remains in possession of the land for many years without the payment of any rent. A deed absolute on its face, if shown to have been originally a mortgage by parol proof and the surrounding circumstances, may be declared a mortgage, though the land has passed into the hands of a grantee who paid no consideration for the land, or into the hands of a purchaser for valuable consideration, who had notice of the character of the original transaction. Lawrence et al. v. DuBois et al., 16 W. Va. 443.

In the case of Hardman v. Orr et ux., 5 W. Va. 71, it is stated in the syllabus:" “1. H, desirous of providing for the comfort of a natural daughter, procured H. H. to purchase land in his own name and have it conveyed to him, to be held by him a reasonable time, and then to be conveyed directly to the natural daughter. H. furnished the money to pay for the land, and the daughter entered into possession of the same. H. deceased shortly thereafter, and H. H. sometime thereafter without having made the deed. Bill brought against widow and infant heirs of H. H. to compel conveyance to the natural daughter. Held: I. Where the land was paid for with the money of H. and the legal title vested in H. H., the trustee for the benefit of the natural daughter, a perfected and complete gift was made to her, which may be enforced against the trustee and his heirs. II. It is competent to prove the object of the trust by parol evidence.”

In the case of Nease v. Capehart, ex'r, 8 W. Va. 95, it was held, that “when a debtor has conveyed land to a trustee to secure a debt, and afterwards another person and the debtor agree, that the former shall purchase the land and hold it as a security for the purchase-money he pays, and accordingly the debtor acquiesces and the other purchases the land, the transaction constitutes a trust, which a court of equity will enforce.” See also Fluharty v. Beatty, 4 W. Va. 514.

In Houston v. McCluney, 8 W. Va. 135, it was held, “when two joint tenants of real estate agree with each other, that one shall with his own money erect improvements on the real estate jointly held, and have a lien on the interest of the other for the money so expended, the agreement with the actual erection of the improvements by the one and the acquiescence of the other constitutes such a lien as will be recognized and enforced in a court of equity.”

I have cited the above named cases decided by this Court, because some of them bear directly upon the plaintiff’s case made by his bill, and others of them bear thereon more remotely. In fact some of the eases cited above in the opinions of the Court bear strongly upon every phase of this case, whether upon the allegations of the bill or the pleadings and evidence. Under the principles decided in said cases, if the proofs sustained the allegations of the bill, the plaintiff would be entitled to relief.

After having patiently examined and considered the authorities above cited and all others cited by counsel on either side, and after a- most patient and thorough examination of all the pleadings and evidence in this cause my conclusion is, that under the pleadings and evidence in the cause and the laws, principles and rules governing courts of equity the plaintiff is not entitled to the relief prayed in his bill in whole or part— that in fact the material allegations of the bill are not supported by the proofs. The evidence, I think, proves, that the consideration of $4,000.00 mentioned in the said deed from plaintiff and his wife to Theodore Fink for the land involved in this suit was greatly less than the value of the land at the date of the deed. The evidence also proves, that the family of the plaintiff have remained upon the property conveyed ever since the date of said deed and have received and enjoyed the rents and profits of the property, except that for a part of the time between the date of said deed and that of said Theodore Fink, deceased, he occupied a part of the dwelling-house and made some addition to the part he occupied at some expense to himself. But said Theodore does not appear to have enjoyed or received any benefit from any other part of the property, the whole benefit of all the residue of the property having been used and enjoyed by the plaintiff’s family composed of his wife and children during that time; and from the time Theodore left, the plaintiff’s said family occupied the property. It is true, that the plaintiff resided with his family, when at home, and in that way of course received some benefit from the property; but he does not seem to have taken control of the property, but the same seems to have been controlled and used by the plaintiff’s wife and children.

While these facts are true, so far as they are evidence in the causes till it seems to me, that, when taken in connection with all the other evidence in the cause and facts proven, the said deed from the plaintiff to said Theodore was not intended to operate as a mortgage in the sense or character charged in the bill, or that the plaintiff should have or retain any interest in the property after the date of the said deed to said Theodore. I think from the evidence and facts, that the true purpose of said deed as understood by all the parties to it at the time of its execution was three fold : 1st, To divest the plaintiff of all right or interest in the property; 2d, To secure the said Theodore as to the debts of plaintiff in the said deed mentioned and perhaps any other debts of plaintiff, which he might pay; and 3d, That the balance of the property, after the last named purpose should be accomplished, should be held in trust by the said Theodore for the use and benefit of the plaintiff’s wife and children, that they might have a home and some means oí support.

It appears, that the plaintiff had derived the tract of land of twenty-two acres from his father; that he had become excessively intemperate, wasteful and reckless of his property; that prior to the said deed to Theodore he had sold and conveyed away some eight or nine acres of valuable land of the said twenty-two acres and had squandered the proceeds of the sale thereof; and had besides become largely indebted and had encumbered the unsold part of the land by deeds of trust for debts of considerable amounts; and had become otherwise indebted. It further appears, that at the date of the said deed to Theodore Fink the property conveyed to him was about to be sold under a deed-of-trust, and in all probability would have been sold at a sacrifice thereunder,but for the said conveyance to said Theodore, and the arrangement in that deed specified as to said lien-debts. In a word it seems to me, that the transaction and deed to said Theodore was a family arrangement made with the view of putting it out of the power of the plaintiff to further squander and waste the residue of his property, and to save the same for the use and benefit of his wife and children, so far as it might remain after the indemnification of said Theodore as aforesaid. This family arrangement with the reasons for it in some aspects is not unlike that in the case of Johnston v. Zane’s trustees etals., 11 Gratt. 552. It further seems to me, that the said John Fink in receiving the conveyance from the said Theodore took the same for the same purpose and with the same trust, that said Theodore held it. The purposes and objects of Theodore, the brother, and the said John Fink, the father of the plaintiff’s wife, in this matter were laudable and praiseworthy, as it seems to me.

The conclusions to which I have arrived as to the object and purposes of said deed as above announced have been reached after the devotion of much time to the examination of all the pleadings and evidence in the cause. I have carefully examined the deposition of the plaintiff; and I am free to say, that said conclusions so arrived at could not be different, even though the whole of said deposition of the plaintiff were read and given only such weight and force, as it should have, when read, considered and weighed in connection with all the facts and evidence in the cause.

For the foregoing reasons it seems to me, there is no error in the decree of the circuit court of the county of Ohio rendered in this cause on the 7th day of December, 1878, and the same must therefore be affirmed with costs and $30.00 damages.

Judges Johnson and Green Concurred.

Decree Ab firmed.