21 W. Va. 632 | W. Va. | 1883
announced the opinion of the Court:
The first reflection that occurs in the consideration of the questions arising out of this case is, that the circuit court committed no error to the prejudice of the appellant by its decree founded upon his consent to the cancellation of said deed from plaintiff and her husband to the defendant, Snyder, for the said Greenbrier lands, and of said agreement to convey to said plaintiff said Roanoke lands; the second reflection-is, that such a cancellation by consent of said Snyder and the plaintiff, and without any proofs to authorize the same, might, and for aught that appears, probably would do irreparable injury to the defendants, Rebecca A. and Fanny
From an examination of the plaintiff’s bill itself, it will be manifest that she places but little reliance on the grounds alleged for a rescission and cancellation of her said deed and contract, to, and with the defendant Snyder. It is not pretended in the bill that there was any mistake in reducing said contract to writing, whereby the real intention of the parties was defeated, nor that the whole, or a material part of the consideration thereof had failed, or that the contract was procured to bo executed by the fraud of the defendant Snyder, or that any specific wrongful act was done by him to induce her to enter into said agreement, except that the parcels were sold by the acre, and that the “Johnson tract” was represented to contain ninety acres, and the “woodland” six
The testimony taken in this case which was before tire court when it rendered the decree on the 12th of June, 1880, canceling said agreement and deed dated the 29th of June, 1875, between-the plaintiff and the said Snyder was wholly insufficient to warrant or sustain such a decree, and we are satisfied, that but for said written consent of the said Snyder, and the apparent indifference of the other defendants, no such decree would have been rendered. While the said decree of the 12th of June, 1880, contains no error of which the appellant lias a right to complain, and if he alone was interested therein, it would not be reversed, yet because the same is erroneous, as to the said Rebecca A. Hunter and Eanny Hunter, and is, or may be, greatly to their prejudice, we are of opinion that- the same must bo wholly reversed, which leaves the case before us, precisely in the same condition in which it stood on the 12th of June, 1880, when the cause came ou to he heard by the said circuit court.
The plaintiff in support of her pretensions, examined as a
The general rule of the common law is, that a party to the record cannot be a witness either for himself, or for a co-suitor in the cause. This rule is founded not solely in the consideration of interest, but. also in the expediency of avoiding temptations to commit perjury. 1 Greenl. Ev. § 329. This rule applies to husband and wife, neither of them being admissible as a witness in a cause civil, or criminal, in which the other is a party, nor in any cause in which the interest of the other is involved. But this exclusion is founded partly on the identity of their legal rights and interests at common law, and partly on principles of public policy, which lie at the basis of civil society; and this principle of public policy continues the exclusion of their testimony for or against each other, even after all identity of their legal rights and interests have ceased to exist, Ib. §§ 334, 335, 337.
By section 22 of chapter 130 of the Code no witness in any civil action, suit or proceeding can be excluded by reason of his interest in the event, thereof.
If the testimony of a husband or wife, who was not a party-to a suit, offered in behalf of the other, who was such party, had been excluded only because of the interest of such witness in the event of the suit, this section would have rendered such husband or wife a competent witness for or against each other; hut as they were also excluded on principles of public policy, and as such exclusion remained unaffected by said section they continue to be incompetent as witnesses for or against each other, excepting only in the case provided for in the fifth exception to the twenty-third section of said chapter. By the said twenty-third section the common law rule which excluded all parties to the record as witnesses for or against each other, was so modified as to render all parties to any civil action, suit or proceedings competent witnesses for or against each other in the same manner and subject to the same rules of examination as other witnesses, with certain specified exceptions, the only one of which necessary to be considered here, is the fifth, which is in these words: “A hus
The construction of said sections 22 and 23 of chapter 130 of the Code of West Virginia was considered by this Court in the the cases of Hill et ux. v. Proctor and of Proctor v. Hill et ux., reported in 10 W. Va. 59. It will be observed that Hill and wife, in both cases were parties on the same side, and that the suits were in fact, in relation to a controversy between Proctor and them, and was not in any sense a controversy between said Hill and his wife. The deposition of Hill was taken in the progress of the cause in regard to the boundary of a tract of land in which ho and his wife were equally interested; this deposition was excepted to, on the grounds that he was incompetent to testify to any matter affecting his wife’s interest in the subject-matter of said suit. Hpon an appeal to this Court he was held to be an incompetent witness, and this Court held that said sections 22 and 23 of chapter 130 “ made 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 cm action or suit between husband and wife. In such case the fifth exception to section 28, so modifies the common law as to allow husband and wife to be witnesses for and against eacli other in suits between themselves.”
This question was again before this Court in the case of Rose & Co. v. Brown et ux. reported in 11 W. Va. 122. In this case Brown and wife, were both parties defendant; the controversy was not between said Brown and his wife, but between them and the plaintiffs, who were seeking to set aside a deed made to the said wife. Brown’s deposition having been taken on behalf of his wife, and not excepted to, was read on the final hearing of the cause in the court below. But this Court upon an appeal held, that said Brown was incompetent to testify on behalf of his wife, and permitted the objection to be made for the first time to the reading thereof in this Court, and re-affirmed the doctrine laid down, upon that subject, in Proctor v. Hill et ux., supra.
In the case at bar, the wife is plaintiff, and her husband, C. S. Anderson, Wm. B. Snyder and others are defendants.
It remains to consider whether the said agreement dated the 29th of June, 1875, made between the said Wm. R. Snyder, and the plaintiff, was a sale of said Roanoke lands to her in gross, or a sale by the acre, and whether she is entitled to compensation for any deficiency in the number of acres, alleged to be contained therein, and if so what is the amount of compensation to which she is entitled for such deficiency.
By the terms of said agreement dated the 29th of June, 1875, between said ¥m, R. Snyder of the first part and said plaintiff of the second part, in consideration! of the conveyance to him of said lands in Greenbrier county, the said Snyder sold, and bound himself to convey by deed of general warranty free from encumbrance to the said plaintiff “all that portion of the home place of Mrs. Margaret Johnson purchased by said William R. Snyder in March, 1875, lying adjoining the town of Salem on the west side, the lands of F. J. Chapman and Hr. Thos. Hillard, excepting thirty acres of said home place, on which the residence and buildings of said Mrs. Margaret Johnson are situated — the said thirty acres lie fronting on the MeAdamizod road ninety-six poles, running north fifty poles, east ninety-six poles and south fifty poles — leaving a balance of ninety acres of said homo place, more or loss, which is to be conveyed by said William R. Snyder to said Jennie Anderson; also six hundred acres, more or less, of woodland lying about two miles north of the town of Salem, consisting of that portion of the home place of O. L. Snyder, deceased, conveyed to said William R. Snyder by F. Johnson, administrator cle bonis non of said C. L. Snyder, deceased, five hundred and thirty-six acres purchased by said William R. Snyder of C. W. Burwell, administrator of Nathaniel Burwell, deceased, at a'sale of said lands of said Nathaniel Burwell adjoining the lands of George Stevens, F. J. Chapman and others; the said two parcels
In the case of Crislip, Guardian, &c., v. Cain, reported in 19 W. Va. 438, this Court decided, that “if a vendor by his written contract agrees to convey for a specified price, a tract of land described by metes and bounds or otherwise, with the words added, containing a specified number of acres, this, on the face of such contract is a contract not by the acre, but in gross, and without any implied warranty of the quantity; and that the law as above stated would not.be varied by the, statement of the vendor in said contract that the land contained a specified number of acres “more or less,” as this statement would be no less positive than the other; for the words more or less are not construed to mean, ‘as estimated,’ ‘as supposed,’ but are construed to mean about the specified number of acres, and are designed to cover only such small errors as usually occur in surveys.” In the same case it is further held, that such a contract not being ambiguous on the face of it no parol evidence is admissible to explain, alter or modify it, by showing it was a sale by the acre and not a sale in gross — and that in such a case, in the absence of any fraud on the part of the vendor, no abatement on account of a deficiency in the number of acres is allowed as it was the result of a mutual innocent mistake of the parties. Ib. syllabus 14 p. 441.
Applying these principles to the said contract of the 29th of June, 1875, we find that the terms thereof bring it precisely within the rule laid down in Crislip, Guardian, &c. v. Cain; that it is a sale in gross, and not a sale by the acre, that no warranty of the number of acres are thereby implied; that no ambiguity exists upon the face thereof, and therefore none of the parol testimony taken in the case can be used to explain, alter or modify the same, and that the said plaintiff is not entitled to any compensation for that cause on account of any deficiency in the quantity of said lands.
But although the sale be in gross and not by the acre, yet if the vendor induce the vendee to purchase, falsely represents to him that the land contains a specified number of acres, or that number, “more or less,” and the vendee relics
The plaintiff in the case at bar, by the allegations of her bill brings herself within the rule laid down in the last two propositions. The testimony'- fully establishes the fact that in the “Johnson tract” there is a deficiency of eight and one half acres, and in the “woodland” tract of tweidy-five and one half acres. There is some conflict between the testimony given by the plaintiff, and that given by the defendant ’Wni. Tt. Snyder. She testifies that the one hundred and sixty' acres of land in Greenbrier county was her separate property (and this is not denied) that her husband was never authorized to sell, or contact to sell her said land to said
The defendant Snyder was the only witness examined in his behalf upon these same questions. The defendant Snyder in his answer to the plaintiff’s bill and in his deposition states that all of the negotiations about the exchange of said lands were made by him with said Charles S. Anderson, the husband of said plaintiff; that he and said husband agreed upon the terms of the exchange of said lands, and that she only ratified them. In his said answer to said bill he admits that he told the plaintiff’s husband during their negotiations that his title papers called for but eighty acres in the “Johnson land,” though he believed it would run out eighty-five or ninety acres, and that at the request of her said husband it was put in the written contract at “ninety acres more or less,” that the words “more or less” were put in the contract for the express purpose of excluding any warranty of the quantity of land, and this was fully unde.rst.ood and agreed to by her said husband, and that the same was true also in regard to the “woodland” tract; he denies in his deposition that these terms were discussed in the hearing ot the plaintiff, further than to announce to her the conclusions, which she agreed to upon condition-that witness would make her a present of said horse.
The testimony of the said husband being out of the case, there is no evidence to sustain the allegation of the answer that the negotiations were made with the said hunband, and not with the plaintiff herself, except the deposition of the defendant Snyder himself, Avho further testified that in May, 1875, the plaintiff and her said husband visited Noanolce county, and on their return they came to his house and urged and requested him to trade them eighty acres of his “ Johnson land” for their home farm and mountain land in Green-brier county, all of which statements are emphatically denied by the plaintiff'in her deposition; he further testifies that, on the 29th of June, 1875, he went to the plaintiff’s
The defendant Snyder further testified that said Anderson
The measure of compensation is the contract price of the land by the acre if the same can be ascertained; but if the same be unascertainable, then the average value by the acre of the tract, of land in which the deficiency exists must furnish such measure of compensation. The testimony in this cause does not disclose the contract price of either of said parcels of land, but it fully warrants the report of Commissioner Preston, that on the 29th June, 1875 — the said “Johnson land” was worth forty dollars — and said “woodland” fifty cents per acre, and that the value of said deficiencies on that day was three hundred and fifty-two dollars and seventy-five cents. T>y the said first report of Commissioner Preston it appears to the satisfaction of this Court by sub-statement No. 2, that there remains due from said Snyder to the plaintiff upon said eight hundred dollars of purchase-money, agreed to be paid for the difference in the value of said lands, the sum of four hundred and twenty-three dollars and eighty-one cents with interest thereon from the 25th day of May, 1878. We are therefore of opinion that the plaintiff’s exceptions thereto, and to the first general. state
Upon consideration of the pleadings and proofs in this cause we are of opinion that the plaintiff is not entitled to have the said deed and contract of the 29th June, 1875, canceled and annulled; nor is she entitled to claim from the defendant Snyder any other or greater sum as the difference in the value of said lands than the said sum of eight hundred dollars with interest tliereonfrom the 1st day of October, 1875, after deducting therefrom such credits as he was entitled to ; but she is entitled to a conveyance by deed with covenants of general warranty free from encumbrances, of the said lands in Iloanoke county, Virginia, and also -to the said sum of three hundred and fifty-two dollars and seventy-five cents as of the date of the 29th of June, 1875, being the amount of compensation ascertained to be due to her from said Snyder as of that date which ought to have been applied to extinguish that much of the credits allowed by Commissioner Preston in sub-statement No. 2 of his report, as credits upon said sum of eight hundred dollars thereby reducing the balance due thereon to the sum of four hundred and twenty-three dollars and eighty-one cents, with interest from the 25th of May, 1878, still due to herfrom Snyder; and not having been so applied this Court will treat the same as if it had been so done, and as both of said sums three hundred and fifty-two dollars and seventy-five cents and four hundred and twenty-three dollars and eighty-one cents, do not exceed the said sum of eight hundred dollars to secure the payment of which a vendor’s lien was retained upon said lands in Greenbrier county, this Court holds the said vendor’s lien as still existing not only to secure to the said plaintiff the payment of said sum of four hundred and twenty-three dollars and eiglity-oue cents with interest from the 25th of May, 1878, but also of the said sum of three hundred and fifty-two dollars and seventy-five cents with interest from the 29th of June, 1875.
Decree Reversed. Cause Remanded.