50 W. Va. 249 | W. Va. | 1901
This is a chancery suit in the circuit court of Tucker County by John J. Adams against Levina Baker to sell a tract of land sold by Adams to Baker to satisfy a balance of purchase money in favor of Adams, resulting in a decree dismissing the bill, from which decree Adams appeals.
Baker filed an answer setting up that Adams sold her the tract of land as containing one hundred acres, and that the sale was by the acre at three dollars an acre, and that there was in fact only the quantity of fifty-four acres, and that payments which she had made had fully paid for all that the tract contained. Adams claims that he did not sell the land by the
These deeds, though signed by the parties, were, perhaps, not actually delivered. Adams’ deed had been signed and acknowledged. It was perfect. He still retained it until Leviiia Baker and her husband should acknowledge the deed of trust, which they retained. It may be said with much force that whatever the contract may have been in the negotiations preliminary to the deed, that the deed speaks the final contract and speaks a sale by the boundary, and that that deed was in law delivered, though it retiiained in the possession of Adams to await the acknowledgment of the deed of trust, since it was a perfect deed, assented to by the grantee, as is shown by the evidence of Adams not only, but cpnclusively by the fact that Baker and wife signed the deed of trust recognizing that deed as acceptable and accepted. Manual delivery of that deed is not shown perhaps; but manual delivery is not always necessary to effectuate a deed. “Delivery of a deed depends on the intent of the parties, and, though not in formal words,
In fact, it is clear that the only, objection to that deed by Levina Baker and her husband, taking their own testimony, was its provision for a special warranty. They seemed to think that a general warranty warrants the quantity specified in a deed, whereas it relates only to title, and does not assure the quantity mentioned in the deed. Burbridge v. Sadler, 46 W. Va. 39. So that warranty can afford no ground for abatement of purchase money. It is clear from the evidence that Adams intended to sell the tract in gross as a tract, not by the acre, for a fixed lump sum, and would not have taken less than three hundred dollars, whatever the quantity, and that Levina Baker and her husband knowing the tract and its boundary well intended to buy it as a tract for the lump sum, and not by the acre. . .
As the sale was in gross, that ends the case; but I will add that the evidence is inadequate to establish the deficiency in quantity claimed. There was never any order of survey, as usual in such cases. Baker and his wife say that they heard their neighbors say that the tract did not contain one hundred acres, and one witness, Dumire, says that he had Wil
Reversed.