76 W. Va. 161 | W. Va. | 1915
On October 1, 1909, L. B. Cook, by written contract, sold to S. B. Thomas the mineral underlying two certain tracts of land in Wyoming county, described as containing 900, and 416 acres, respectively, and all the timber thereon, for mining purposes, except the poplar, ash, cucumber and walnut, at the price of $35 per acre, the quantity to be ascertained by survey, to be thereafter made. A survey was to be made by J. W. Heron of Huntington, and was to be begun within twenty-five days, and completed as soon as possible. Cook was then to execute to Thomas, or to anyone whom he might in writing designate, a deed with covenants of general warranty and against all encumbrances. One-third of the purchase money was to be paid in cash, on delivery of the deed, and the remaining two-thirds in one, and two years thereafter, with interest, and was to be secured by retention of a vendor’s lien. Cook was also required to give Thomas five days written notice of the time when he would be ready to deliver the deed. The contract was signed by L. B. Cook and his wife, and by Thomas and acknowledged by him only, and recorded in Wyoming county October 14, 1909. The paper is spoken of throughout the record, by witnesses and attorneys, sometimes as a contract, and sometimes as an option. But it is, in express terms, a contract of sale. It recites a cash considéra
For reasons hereinafter to be given, the sale was never completed, and, on the 16th of September, 1911, Cook sold the same, and other lands, to James D. Lowry, and, on the 21st of October, following, he and L. B. Cook made a joint deed therefor to the Big ITuff Coal Company, a corporation, the respective wives of the grantors uniting in the conveyance. The deed conveyed all the mineral in both tracts, and all the timber on the larger tract, under eighteen inches in diameter, except the poplar, ash, cucumber and walnut, and all the timber, without regard to size, except the poplar, ash, cucumber and walnut, on the smaller tract. The 900 acre tract was found to contain but 850 acres, and will be hereafter so designated in this opinion.
Lowry and the Big Huff' Coal Company purchased with knowledge of the Thomas contract. In his deed to the Big Huff Coal Company, Cook expressly assigned to it all the rights he had in his contract with Thomas, and authorized said company “to sue for its benefit to enforce said option or agreement, or tp cancel or set aside same.” But it was expressly stipulated that the acceptance thereof was not to be considered an acknowledgment of the validity of the Thomas contract, or of his right to enforce it.
Shortly after the recordation of its deed, the Big Huff Coal Company brought this suit to cancel the Thomas contract, as constituting a cloud upon its title, alleging that he had procured it through false and fraudulent representations made to Cook; that he had made material alterations in it, after he had procured Cook and his wife to sign it, without their knowledge or consent; and that he had failed and refused to comply with it, after he had received written notice from Cook, that he was ready to make him a deed, in compliance with its terms. The bill further alleges abandonment of the contract by
One is that the demurrer to the plaintiff’s bill was improperly overruled. The bill does not aver actual possession of the land by plaintiff, and it is insisted that this omission is fatal. This court has held, in numerous cases, that to entitle a plaintiff to maintain a bill to remove cloud from title, he must have the legal title and must also be in actual possession. Iguano Land &c. Co. v. Jones, 65 W. Va. 59; Whitehouse v. Jones, 60
But defendant Thomas, by his answer in the nature of a cross-bill, set up affirmative matter, not only as a defense to> the- original bill, but as cause for affirmative relief, and prayed for the enforcement of his contract. The bill and the cross-bill presented two suits, two issues’ relating to the same subject matter; and the cross-bill may stand independent of the original bill. The court could dismiss the original bill, and still retain the suit presented by the cross-bill. Being a cross-bill for affirmative relief, as well as an answer, it does not necessarily fall with the original bill. W. Va. &c. Land Co. v. Vinal, 14 W. Va. 637, (Syl. pt. 14); Pethtel v. McCullough, 49 W. Va. 520, and discussion by Judge BRANNON at page 524; 1 Hogg’s Eq. Proc., Sec. 205; Ragland v. Broadnax et al., 29 Grat. 401; Fishburne v. Ferguson, 85 Va. 326; and Griffin v. Griffin, 118 Mich. 446. Therefore, sustaining the demurrer to the original bill does not dispose of Thomas’ cross-bill. The special replies, or answers thereto, of Cook and the Big Huff Coal Company set up the same matters in defense that were made the basis of plaintiff’s prayer for relief in its original bill'; and the evidence in the ease is just as applicable to the one suit as to the other.
Was Thomas entitled to have the contract specifically enforced? That depends, primarily, on whether or not he was, at all times, ready, willing and eager to carry out the agreement on his part. Upon that issue he carries the burden, and we do not think he is sustained by the evidence. J. W. Heron, the surveyor at first mutually agreed on to make the survey, did not do it, and the parties thereafter agreed upon George Beddow, who did it. Thomas assumed to pay him, and Cook paid his helpers. After the survey was completed, Beddow furnished Thomas with his report and plat of the survey. Thomas then had an abstract made of Cook’s title, and it showed certain defects, and numerous judgment, and trust deed liens on the land, amounting to something like $20,000.
The other principal objection to Cook’s title was a recorded * option he had given the Standard Realty Company of Huntington in 1908. After these defects were called to L. B. Cook’s attention, early in 1910, he denied any right of C. F. and A. IT. Cook in the mineral and timber sold to Thomas, and sought to obtain from them a release, without suit. He finally compromised with C. F. Cook, by agreeing to pay him the sum of $4,000, and took from him a release of his claim upon the mineral and timber embraced in the sale to Thomas. That deed bears date November 22, 1910, was acknowledged December 2, 1910, and recorded March 25, 1911. A vendor’s lien was retained to secure the payment of the $4,000. And, on the 14th day of September, 1911, he obtained a release deed from A. IT. Cook and wife, and J. M. Cook, in which C. F. Cook and wife also joined. This deed was acknowledged on the day of its date, and recorded October 3, 1911. The release
This letter also tends very strongly to show that the real purpose was to procure delay in closing up the sale, that Thomas was playing for time, and trying to keep the land tied up with his contract, until he could make a profitable sale of it to someone else. It shows that he was expecting to be sued by Cook, and was trying to construct a defense to defeat him if possible. It indicates that he was not ready to comply, and still desired to make Cook believe he was ready. In his testimony, Thomas expressly admits that he was, at no time, personally able to buy the land, but claims he had other purchasers who were ready to take it off his hands, or to join with him in the purchase, whenever Cook was in a position to make a good title. He names certain persons who, he says, had agreed to purchase the land, and were able and ready to' comply with Cook’s terms of sale to him. But he produced no binding agreement with them to do so, and offered none of them as witnesses in his behalf. Pie exhibits an option to J. "W. Heron, trustee, signed only by himself, dated November 23, 1909, agreeing to sell him the land at $50 an acre, provided he elected to take it in forty days, and pay,
At the time Cook tendered Thomas the deed, to-wit, on the 13th of May, 1911, he was in a position to comply, substantially, with the contract on his part. True, there were then judgment and trust deed liens on his land, but it was understood between the parties that they were to be discharged with the purchase money. Cook was selling his land in order to get the money to pay off these liens; and Thomas knew he had a right to apply the purchase money to their payment. So likewise, with respect to the vendor’s lien retained by C. F. Cook in his deed of release, the right to pay off that lien, at any time, was expressly given by the terms of the deed.
Being plaintiff in the cross suit for specific performance, Thomas is required to show, before he can obtain that relief,
In vieAV of Thomas ’ failure to prove a case entitling him to relief, it is unnecessary to consider the evidence, taken on the question of fraud in the procurement of the contract, as a defense to his suit. He has failed to. prove a prima facie case.
The lower court decreed a cancellation of the contract, in compliance with the prayer of the original bill. This was error for which the decree must be reversed; the Big Huff Coal Company was not entitled to relief on its bill, and it can not obtain affirmative relief on its defense to the cross-bill. The court should have sustained the demurrer to the original bill, and have given plaintiff leave to amend, if it should so elect; and it should have dismissed Thomas’ cross-bill.' The decree appealed from will, therefore, be reversed and this court will enter a decree in accordance with this opinion, and will remand the cause. If the plaintiff, in the original bill is not in position to amend its bill, or should decline to do so, when the cause is remanded, its bill also should be dismissed. Thomas, having substantially prevailed, is entitled to his costs in this court.
Reversed and remanded.