42 W. Va. 223 | W. Va. | 1896
Benson filed a .bill in the Circuit Court of Jackson county against Snyder and Casto to enforce a lien for purchase money of land which Benson alleged he had sold Snyder by executory contract providing for conveyance of the legal title on payment of purchase money. Casto answered that he had purchased the land at a sale under a decree in another case brought to enforce judgment liens against Snyder’s land, in which there had been a convention of lienholders against Snyder’s land, upon notice to them as provided by section 7, chapter 139, Code 1891, and contended that, as Benson had not presented his demand before the commissioner, he was barred from claiming it by another suit, by force of that section. The answer also alleged that Benson had no debt against the land for its purchase money, as Snyder had purchased the land from Benson, and fully paid him for it, in money, stock, and an interest in other lauds owned by Snyder. The answer further alleged that Snyder had frequently declared that he was the full owner of the land, with knowledge on Benson’s part of such declarations, and without denial by him, whereby Casto had been induced to believe that Snyder was such owner, and to purchase at the judicial sale in confidence that Snyder was such owner, and also that Benson was present at the sale, and made no objection to it, kept silent, and permitted Casto to buy in ignorance of any claim by Benson upon the land, and that by reason of these facts Benson was estopped from asserting his demand against the land. The decree subjected the land to Benson’s demand, and Casto appeals.
It is true that if an ordinary lienholder fails to present his lien in obedience to the notice to lienholders under section 7, chapter 139, Code, he is barred of his lien; but we do ■ not think that principle bars a vendor of land, yet holding the legal title, who is not an actual party to the suit. He holds the title, and to affect him he must be a party. He has the legal title, and without him that title
It is not necessary for the decision of this case to express an opinion as to whether a lieu reserved in a deed passing title would be barred by failure of its owner to present his lien before the commissioner, he not being a formal party; but the matter is germane to the case. Though the question is somewhat nice, I think that*" such a lienor must be made a formal party in order to affect him. It is true that the language, “by judgment or otherwise,” is broad, and that the purpose of section 7, chapter 139, Code, is to convene liens, give all lienors their rights, and sell to the purchaser a clear title, and protect
As to the estoppel by conduct of Benson: It is alleged by Casto, and must be proven by' him. Counsel for Casto says that as it is alleged in the answer, and is not denied in the special reply, it is taken for true. This is new matter,
Lastly, has Benson a lien? The evidence is satisfactory and clear that he has not. He exhibits a contract between Snyder and himself, and Snyder’s notes, dated March 1,1886, to show the sale; but they are proven, I may say, by only Snyder, Benson, and Benson’s wife. Snyder is Benson’s nephew. The clear, disinterested testimony shows that Snyder purchased and paid for a tract of forty-eight acres, and exchanged it with Benson for this fifty-six and one-half acres, in full payment for it. Sypher who, as agent for Hoyt, sold the forty-eight acres to Snyder, is direct and emphatic that Snyder himself bought and paid for it, saying at the time he intended to trade it to Benson for another tract. Sypher’s wife heard the conversation, and corroborates Sy-pher. Numerous witnesses say that both Benson and Snyder so declared. A witness swears that he had an interest in asking Benson why he did not convey the fifty-six - and one-half acres to Snyder, and he answered he was waiting to see how the Dyer suit would come out. That was the suit of Dyer against Snyder to subject the fifty-six and one-half acres to Snyder’s debts, under which it was sold, purchased by Dyer, and the sale turned over and reported to Casto. Who wrote the pretended contract of its sale by Benson to Snyder? Snyder did. Who ever heard of it till it was soldfrom Snyder, and Benson brought suit to enforce it in October, 1891? No one. It seems then to have sprung into life. How comes it that Benson, a poor man, let two one hundred dollarnotes for purchase money, payable March 1, 1887 and 1888, lie so long, without a cent paid on the land after March 1, 1886? How comes it that he did not list the notes.for taxation, as he admits? And then there
We reverse the decree, and adjudge that Benson is not entitled to subject the sixty-five and one-half acres to the demand set up in his bill, and deny him the relief he asks; and we remand the ease to the circuit court with directions to enter a decree to that effect, and requiring Benson to convey said sixty-five and one-half acres, with general warranty, to Casto, and appoint a special commissioner to do so, by proper deed, in case Benson shall fail, by a time to be fixed, to do so.