46 W. Va. 39 | W. Va. | 1899
In 1869, Gore conveyed to Melissa Burbridge a tract of two hundred and sixty-nine acres of land in Doddridge County, and for deferred purchase money she and her husband, J. P. Burbridge, executed notes, which were assigned to Lee. Of this tract a parcel of thirty-seven and one-fourth acres was conveyed by the Burbridges to Roush, and later another parcel of fifty-one acres was conveyed by the Burbridges to Bonnell, and later the residue (one hundred and eighty and three-fourths acres) was conveyed by the Burbridges to Rudolph Sadler. In the deed from Gore to Melissa Burbridge for the two hundred and sixty-nine acres, a lien was retained for the notes which came by assignment to Lee. Roush paid cash for the parcel conveyed to him. Bonnell executed four notes for unpaid purchase money on the fifty-one acres so conveyed by the Burbridges to him. Sadler executed to Melissa Burbridge two notes for unpaid purchase money on the tract conveyed by the Burbridges to him, for which a lien was retained on the land; and, as further payment for the land conveyed by the Burbridges to Sadler, Sadler conveyed to Melissa Burbridge three contiguous tracts of land aggregating a tract of one hundred and seventy-five acres, and in the deed Sadler reserved a lien on the one hundred and seventy-five acres to indemnify him against any liens resting on the tract of one hundred and eighty and three-fourths acres conveyed by the Burbridges to Sadler. In 1873, Lee brought a chancery suit to sell under his said lien the two hundred and sixty-nine acres con-yeyed by Gore to Melissa Burbridge, and made said sev
These cases present considerable complication, growing
The Sadlers also complain of the charge against them in favor of Melissa Burbridge of two one hundred dollars items, — one of cash, in 1873; the other of cattle, in 1875. They say these items are barred by the statute of limitations, as they were never claimed till 1894. Now, as to the item for one hundred dollars in cattle. Viewing it as an offset in favor of J. P. Burbridge, as it is set up in the Burbridge bill, it would be not allowable, because not in favor of Melissa Burbridge, but in favor of her husband, and it is blank in amount in that bill, and it is not there charged that these cattle were furnished to Sadler, to be paid by him on the Lee debt, and therefore it would be barred. But answers of Burbridge and wife in the suits of Lee and Sadler do set up that cattle item as one hundred dollars, and allege that the cattle were furnished by Bur-bridge and wife to Sadler with the understanding that he was to pay their proceeds on the Lee debt, and, this being so, I do not think the statute of limitations applies. The commissioner thought that the statute did not apply, because this item had been involved in the long-sleeping suits; 'but it was not involved, because never set up until in 1894. And j ust here I remark that the reference in the lifetime of Sadler, in the Hutson suit, to convene lienors, could not keep alive a mere open account. But, going back to the fact that the cattle were furnished to Sadler to be applied by him on the Lee debt, I do not regard the demand barred. Under this head, the question is, which land shall
The Sadlers complain that the decree charges against them the four Bonnell notes. For reasons stated above as to the cattle, I think they were properly charged to the credit of Melissa Burbridge and not barred. Nobody questions that said notes were assigned by Melissa Bur-bridge to Rudolph Sadler, and the only question is as to the purpose for which they were assigned. Were they assigned to be paid on the Lee debt? Burbridge and Le-fever say so, but, parties to the suit, they cannot speak of this personal transaction with Sadler, since dead. But Roush clearly proves that they were assigned to Sadler to pay on the Lee debt. Certainly they were paid to Sadler. They are chargeable to his estate. However, Bonnell says the first of these notes was at least half paid before they were assigned to Sadler. The commissioner charges their full amount, — in fact more, as I see it. Only that first note after the deduction of the credits on it should be charged. Bonnell says it was half paid, but he merely approximates, and I think that the proper course is to apply the credits appearing on it as more certain.
Susan Sadler complains that her lien was not made a second lien on her husband’s land instead of being made subordinate to the amount decreed Melissa Burbridge. Of course, that is error as to any surplus given Melissa Bur-bridge over the amount of the Lee debt; for such surplus was no lien, as Melissa Burbridge’s demand beyond the Lee debt would only make her a general creditor, even if she was not barred, and Susan Sadler’s debt was a fixed lien by subrogation to the Hutson lien. Susan Sadler also complains that her debt as allowed is too small. The date from which interest was computed on this debt and the amount on which interest was computed by the commissioner do not appear. The amount is clearly too small. I find a decree in the Hutson Case, made after the decision of this Court, which finds the debt of Susan Sadler to be one thousand one hundred and seventy-eight dollars and sixty-six cents, with interest from the date of that decree, and so adjudicates it against Sadler’s estate. The date of
This appeal does not involve the question of the allowance to Melissa Burbridge of any sum for deficiency in quantity of the one hundred and seventy-five acre tract, unless we interpret the brief of the counsel for appellees as a cross-assignment of error, as I do interpret it. Therefore, I pass on it. That demand is barred by limitation. It was cause of action at once on the execution of the deed from Sadler to Melissa Burbridge. Five years would bar it. It is not like the case of a demand for compensation for excess in quantity where lien for purchase money exists. There. I think, the lien extends to the amount due for surplus land; but, if there is no lien in the deed of conveyance, compensation for the surplus must be recovered in an action at law. So, where there is a deficiency. In either case, like the sale of other property. In case of deficiency, compensation would, be by action of trespass on the case, or, waiving the tort, in assumpsit, the liability being based on the theory of fraud and deceit in misrepresenting quantity. 8 Enc. Pl. & Prac. 887; Kreiter v. Bomberger, 22 Am. Rep. 750; Hoyt v. City of Saginaw, 2 Am. Rep. 80. Crislip v. Cain, 19 W. Va. 438, bases the liability on fraud and deceit; therefore it is subject to limitation. Clearly, recovery or liability is not based on breach of the covenant of general warranty, as it only guarantees title, not quantity; quantity merely pertaining to'description of the land.. Rawle, Cov. §§ 289, 297; 2 Devl. Deeds, § 1044; Roat v. Puff, 3 Barb. 353; Rickets v. Cickens, 4 Am. Dec. 555. For such amount as the Dee debt may exceed the amount to be credited to Melissa Burbridge, the one hundred and seventy-five acres conveyed to her by Sadler must be sold to indemnify Sadler’s estate. The proposition of counsel that, as she is a married woman, her land can only be rented, cannot be sustained. The very deed vesting estate in her created a fixed lien on the land, and it binds the fee just as a vendor’s lien binds the fee, retained in a deed creating separate estate. See Manu
These principles reverse the decree, and remand the cause for further decree in accordance therewith. Melissa Burbridge should be given leave, if she asks it, to amend her bill as to said one hundred dollar cash item, and retake her proof touching it.
Reversed.