Black v. Daughtry

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The grounds of demurrer to the evidence stated in writing in the trial court are as follows:

“1. That said plaintiff has never been in a position to give such title to the said property unto the said defendant as he obligated himself to give.

“2. That the title to the said property has never been in said plaintiff, and he has never offered to defendant any deed from the true owner thereof.”

The assignments of error before this court are as follows:

“First — The evidence shows that the plaintiff was never in a position to fulfill his contractual obligations, and was never able to give such, title as he contracted to give.

“Second — No conveyance by any one other than the vendor could serve as a compliance with the vendor’s contract.

“Third — The deed from Dusch and wife was a nullity and neither Daughtry nor Nicholas acquired any title to the property thereunder.

“Fourth — Even if Nicholas had acquired good title by said deed, any conveyance by him would be subject to the right of dower of Daughtry’s wife.”

[1] The question which is urged before us in the brief and in oral argument for the plaintiff in the court below, and which we consider decisive of the case, is this:

1. Were the grounds of demurrer to the evidence stated in writing in the court below sufficiently specific to comply with the statute (section 6117 of the Code), so as to permit us to consider the assignments of error before us?

This question must be answered in the negative.

*30 The first assignment of error before us is the same in substance, and practically the same in form, as the first of the two grounds of demurrer stated in the trial court. They are both, however, broad enough to embrace and comprehend any one of the first, second, third or fourth assignments of error. The second ground of demurrer stated in the trial court is very different from the second, third, and fourth assignments of error before us. The latter are specific ; the former is not. The second ground of demurrer is, indeed, broad enough to embrace and comprehend any one of the first, second, third or fourth assignments of error.

Therefore, both of the grounds of demurrer stated in the court below fail to specify with reasonable certainty the particular grounds of demurrer relied on, when the facts and circumstances of the case are considered.

To be more specific:

The first ground of demurrer is doubly equivocal, in that it is not explicit as to what title it is claimed the plaintiff obligated himself to give to the defendant, or as to what position it is claimed the plaintiff should have been in, in order to give such title. It may mean at least any one of three things, namely:

(1) . That plaintiff contracted to give good title by a deed from himself and wife, and was never in a position to give such title by such conveyance, because he never himself acquired the legal title; or

(2) . That plaintiff contracted to* give good title by a deed from Nicholas but was never in a position to give such title by such a conveyance, because the deed from Dusch and wife conveyed no title to Nicholas; or

(3) . That plaintiff contracted to give good title by a deed from Nicholas, but was never in a position to give such title by such a conveyance, because such a conveyance would not have conveyed and would have left outstanding the contingent dower right of plaintiff’s wife, even if the deed from Dusch and wife passed the legal title to Nicholas.

*31 As to the second ground of demurrer: It contains two statements, viz: (a), “That the title to the said property has never been in the said plaintiff” (manifestly referring to the legal title), and that (b) “he has never offered to defendant any deed from the true owner thereof.”

The statement (a) may be disregarded or considered as surplusage, as it presents no issue involved in the case. The plaintiff has at no Time contended that the legal title to the property was ever in him.

The statement (b) is equivocal in this: Its meaning may be at least any one of the three following, namely: That the plaintiff has never offered the defendant any deed,

(1) From himself, the true equitable owner; or

(2) From Dusch and wife, the true legal owners, because their deed being blank as to the grantee, conveyed no title to Nicholas or to any one; or

(3) From Nicholas which would have conveyed a, good title, even if the Dusch and wife deed passed the legal title to him, since the plaintiff’s wife would have dower right in the property notwithstanding, and a conveyance from Nicholas alone would leave that contingent dower right outstanding.

The following is held in McMenamin v. Southern Ry. Co. 115 Va., 822 , 80 S. E. 596 , concerning the statute, now section 6117 of the Code, per the syllabus, which is fully sustained by the opinion of the court delivered by Judge Buchanan: “The object of the statute * * * in requiring the grounds of a demurrer to the evidence to be stated in writing was at least two-fold: First, to require the-demurrant to give notice in writing of the grounds or causes of demurrer which he intended to rely on, and, second, to prevent him from assigning grounds of demurrer in the appellate court wholly different from those relied on in the trial court. The degree of particularity required must depend to some extent upon the character of the case. Where the language *32 used is broad enough to embrace and comprehend any one of several causes of demurrer, but fails to specify any one of those as the particular ground or cause relied on, with reasonable certainty, considering the facts and circump stances of the case, it is not a sufficient compliance with the statute.”

As said in the opinion of the court in the case just cited, concerning the grounds of demurrer stated in the trial court: “Neither of them gave much, if any, more information to the demurree as to the real ground intended to be relied on than the general demurrer under the old practice would have done. They no more specify the cause of demurrer afterwards actually relied on than they do any other of the several causes embraced within them.” This language is extremely pertinent and is equally applicable to the case before us.

As said in Saunders v. Southern Ry. Co., 117 Va. 396 , 84 S. E. 650 , per the syllabus, 'which is fully sustained by the opinion of the court delivered by Judge Harrison: “The provisions of the statute requiring the grounds of a demurrer to the evidence to be stated in writing are mandatory and the court is without jurisdiction to consider such demurrer unless the grounds are so stated, whether there be one or more grounds of demurrer, and although the grounds of demurrer be known to and understood by the demurree. The statute is a wise one ond should be upheld and enforced as it is written, and it is not permissible to modify it by engrafting exceptions upon it.” In the opinion of the court this is added : “* * it is wholly immaterial * * * whether the plaintiff has been prejudiced by the failure of the defendant to state the grounds of demurrer in writing. The language of the statute is too plain to admit of doubt, or to call for interpretation.”

[2] The holding of the cases mentioned may be summarized as follows: Where the ground or grounds of de *33 murrer to evidence stated in the trial court are broad enough, when considered in the light of the facts, and circumstances of the case, to embrace more than one ground, and no particular ground, or grounds, is or are specifically stated as relied on, the statute on the subject is not complied with; and, whether any of the grounds so embraced in such statement in the trial court be good or bad, and regardless also of whether the demurree has been prejudiced by the default of the demurrant in the premises, no assignments of error based upon such ground or grounds of demúrrer can be considered by the appellate court.

Such being the settled doctrine on the subject, which we unqualifiedly approve, we are without jurisdiction to pass upon the questions sought to be presented by the assignments of error, and the case will be affirmed.

Affirmed,