Ray v. Hey

MILLER, Justice,

dissenting:

By casting the main issue in this case in a false light, i.e., that it involves an action to clear title to land, the majority arrives at the predictable conclusion that suit must be brought in the county where the land is located. The central issue is not a title dispute; rather, the controversy involves an alleged breach of contract, a breach of the duty of good faith and fair dealing, and fraudulent misrepresentation. Further factual development illustrates how the majority has misconstrued the facts to support the result it has reached.

I.

According to the pleadings, petitioners Everett W. Ray and Lennie C. Ray own real property in Nicholas County, West Virginia. Petitioner Kathryn H. Morris is the Rays’ daughter. Mrs. Morris and her husband, Ralph C. Morris, live in a house located on her parents’ property. The respondent, One Valley Bank of Summersville (the Bank), is located in Nicholas County. The Bank is one of several West Virginia banks owned by One Valley Bank Corporation, N.A., a holding company headquartered in Kanawha County.

On March 30, 1987, the Morrises borrowed $60,000 from the Bank. The loan was secured by a deed of trust which en*526cumbered the Rays’ property in Nicholas County. In April, 1989, an individual approached the Rays about purchasing a portion of the Nicholas County property. Because the real estate was encumbered, Ralph Morris spoke to the vice president of the Bank about the proposed sale. The vice president assured Mr. Morris that the sale was acceptable to the Bank and that the proceeds of the sale would be applied to extinguish a portion of the $60,000 loan. This information was given to the Rays who then sold the parcel and gave the $10,000 proceeds to the Bank.

Instead of applying the purchase money to the $60,000 loan, the Bank used it to extinguish two unsecured personal loans previously made to Mr. Morris. Although the petitioners protested the Bank’s action, the Bank refused to honor its original agreement. On December 18, 1989, the Bank notified the Rays that Mr. and Mrs. Morris had defaulted on the $60,000 note and that the Bank, therefore, planned to sell the remainder of the Rays’ Nicholas County property at a foreclosure sale on January 23, 1990. On appeal, the petitioners contend that the Morrises would not have defaulted on the $60,000 note had the Bank complied with the original agreement.

This action was filed to obtain a declaratory judgment as to whether the Bank was required to apply the proceeds from the sale of property to the note secured by the deed of trust. Suit was not instituted to clear title to the property. To preserve the status quo while the suit was pending, the petitioners requested a preliminary injunction prohibiting the Bank from selling the property under the deed of trust.

Because the parties do not dispute title to the property, the venue exception relied upon by the majority, W.Va. Code, 56-1-1(a)(1) (1986), is inapplicable. This provision applies to “an action of ejectment or unlawful detainer [which] must be brought in the county wherein the land sought to be recovered ... is [located.]”1 Ejectment and detainer are actions designed to resolve competing claims to possession or title of real property. Both of these actions are statutorily defined and carry specific venue provisions requiring that they be brought in the county where the disputed property is located. See W.Va. Code, 55-3-1 (1923) (unlawful entry and detain-er); W.Va. Code, 55-4-2 (1923) (ejectment).2

This action does not even arguably resemble ejectment, unlawful entry, or de-tainer. This case is precisely what we described in Syllabus Point 1 of McGraw v. Morgan, 85 W.Va. 257, 101 S.E. 463 (1919):

“Before a sale under a deed of trust to secure the payment of money may properly be had, the amount of the debt secured should be definitely ascertained, and if the trustee refuses or fails to discharge his duty in this respect, any party likely to suffer loss and injury by his default may apply to a court of equity for appropriate relief.”

Several of the cases cited by the majority recognize that where a suit does not directly involve title or possession to realty, it may be brought in the county where the defendants reside. Indirect effects on realty do not disturb this general rule. McConaughey v. Bennett’s Ex’rs, 50 W.Va. 172, 40 S.E. 540 (1901) (suit to recover damages for breach of covenant of general warranty); Life v. Rugged State Dev. Co., 107 W.Va. 33, 147 S.E. 31 (1929) (suit for an accounting of money due under an oil and gas lease).

*527Even more pertinent is Lawrence v. DuBois, 16 W.Va. 443 (1880), where we considered a suit to declare a deed which was absolute on its face to be a mortgage. Such a suit affects title because the grantee of the deed would not be the absolute owner if the deed were determined to be a mortgage. Nonetheless, we held in Syllabus Point 3 that the suit need not be brought in the county where the land was located:

“A suit by the grantor in a deed absolute on its face, to have it declared and held to be a mortgage, may be brought in the county where the grantee resides, though the land lies in another county.”

After citing several cases, we went on to amplify the reason for this holding:

“[W]hen the decree or judgment is to affect the lands directly, as in an action of ejectment or a suit in this State to divide a tract of land in another State, the court has no jurisdiction, except where the land lies. But if the decree is to affect the person of the defendant, the court where the defendant resides has jurisdiction, no matter where the land lies. For in one case the court could not enforce its judgment or decree, but in the other it could be completely enforced, even if the land lay in a foreign jurisdiction.” 16 W.Va. at 456.

This case similarly does not involve title or possession, but rather involves the proper application of a payment made to the Bank from a sale of part of the mortgaged property. The majority has simply failed to understand the teaching of our precedents.3

II.

Equally flawed is the majority’s conclusion as to the collateral request for injunc-tive relief. The majority cites W.Va. Code, 53-5-3 (1923), which provides that “a bill for an injunction to any judgment, act or proceeding shall, unless it be otherwise specifically provided, be in the circuit court of the county in which the judgment is rendered, or the act or proceeding is to be done, or is doing, or is apprehended....” Without any analysis or citation of authority and relying on this section, the majority states “the Circuit Court of Kanawha County lacks jurisdiction, because under W.Va. Code, 53-5-3 (1931), only the Circuit Court of Nicholas County has jurisdiction to consider this case_” 183 W.Va. at 525, 396 S.E.2d at 706.

The majority ignores our cases under this section that have held this jurisdictional requirement applies only to pure bills for injunction, that is, where the entire relief sought is injunctive. Where, as here, the injunctive relief is ancillary to the main cause of action for an accounting and proper credit of the monies paid to a bank, W.Va. Code, 53-5-3, is not controlling.

We addressed this point in Shobe v. Latimer, 162 W.Va. 779, 253 S.E.2d 54 (1979), where a class action was filed in the Circuit Court of Kanawha County for a declaratory judgment that a water diversion contract between governmental entities was illegal and void. The plaintiffs in their suit also requested a temporary injunction to stop the diversion during the pendency of the action. The circuit court concluded that because the spring was located in Grant County, it had no authority to grant injunctive relief. We reversed, stating in Syllabus Point 3:

“W.Va. Code, 53-5-3 has been held to be applicable only where an injunction is the exclusive relief sought, and not where injunctive relief is merely ancillary to the primary claim advanced in the case. Lewis, Hubbard & Co. v. Pugh, 115 W.Va. 232, 174 S.E. 880 (1934); State v. Fredlock, 52 W.Va. 232, 43 S.E. 153 (1902).”

Lewis, Hubbard & Co. v. Pugh, 115 W.Va. 232, 174 S.E. 880 (1934), which is *528also on point, was an equity suit in Fayette County to collect a decretal judgment against a coal company arising from certain promissory notes. In the interim, the company issued two notes, payable to two of its officers, both of which were eventually endorsed to Mr. Pugh, the company’s treasurer. Mr. Pugh brought suit on the notes in Kanawha County. Thereafter, Lewis, Hubbard & Company filed another suit in Fayette County to have the notes declared void and to enjoin Mr. Pugh from proceeding in the Kanawha County court action. The Circuit Court of Fayette County granted all of the requested relief. On appeal, Mr. Pugh contended that the Fay-ette County Circuit Court had no jurisdiction under W.Va. Code, 53-5-3 (1923), to enter the injunction. In rejecting this claim, we stated:

“The point is not well taken, because the said statute has been construed to apply only to bills of injunction and not to proceedings wherein an injunction is merely ancillary or incidental to the primary purposes of the bill. State v. Fredlock, 52 W.Va. 232, 43 S.E. 153. That case also lays emphasis on the fact, proper to be noted here, that an injunction, issuing from one court, to stay proceedings in another, operates upon the parties only, and does not encroach on the jurisdiction of such other court.” 115 W.Va. at 234-235, 174 S.E. at 881-882.

See also Lockard v. Wiseman, 139 W.Va. 306, 80 S.E.2d 427 (1954).

The majority has wandered far afield from these accepted legal principles. Its erroneous and cramped view of our venue statute serves no useful public purpose.

For these reasons, I dissent.

I am authorized to state that Justice McHUGH joins me in this dissent.

. The complete text of W.Va. Code, 56 — 1—1(a)(1), is:

"(a) Any civil action or other proceeding, except where it is otherwise specifically provided, may hereafter be brought in the circuit of any county:
“(1) Wherein any of the defendants may reside or the cause of action tiróse, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof, is[J”

. In an action for unlawful entry and detainer, the right to possession is at issue. On the other hand, in ejectment, title or ownership is the chief issue. See Feder v. Hager, 64 W.Va. 452, 63 S.E. 285 (1908); Witten v. St. Clair, 27 W.Va. 762 (1886). See generally B. Perrone, West Virginia’s New Summary Eviction Proceedings: New Ouestions for An Old Answer, 87 W.Va.L. Rev. 359 (1985) (discussing historical development of proceedings for possession of real property and analyzing new summary eviction statutes, W.Va. Code, 55-3A-1, et seq.).

. Our law in this area is not unique. Other courts have also recognized that where the action only indirectly affects real property, the suit may be brought in the county where the defendant resides. See Ponderosa Sky Ranch v. Okay Improvement Corp., 22 Cal.Rptr. 90, 204 Cal.App.2d 227 (1962); Hawkins v. Pierotti, 232 Ga. 631, 208 S.E.2d 452 (1974); Oestreich v. Ocean Shores Estates, Inc., 83 Wash.2d 143, 516 P.2d 507 (1973). See generally, 77 Am.Jur.2d Venue § 11 (1975 and Supp. 1990).