15 W. Va. 554 | W. Va. | 1879
delivered the opinion of the Court:
' The appellant, Core, in his fourth assignment of error, held that the court had no jurisdiction of this cause in chancery. A court of equity has jurisdiction to enforce the specific execution of a contract. The object of this bill was for that purpose; to compel Harris to comply with his contract with the plaintiffs, who had performed their part as agreed, and to obtain a proper conveyance to them of the land they had contracted for. Equity therefore had jurisdiction of the subject-matter. The circuit court of Gilmer county had jurisdiction, because the defendant, Harris, resided in said county, and also because part of the land lay in that county.
It is claimed that the court erred in its decree of November 22, 1870, by enforcing, in favor of the plaintiffs, specific execution of the written contract made between Harris and plaintiffs, dated June 21, 1849, and also in setting aside and annulling the deed of April 22, 1850, made by said Harris to defendant, Core, pursuant to the written agreement between said Harris and Core, dated November 15, 1849.
From the view I take of this cause as presented by the record before us, the question now to be considered is to be solved by a comparison of equities. It appears that Hiram Riddle, the former owner of the land in controversy, conyeyed it by deed to Patrick Raferty ; Raferty in his answer admits that by an agreement with George W. Hardman he was to convey said land to said Hard-man in consideration of three hundred and thirty-four acres of land conveyed to him by Hardman by deed,
Core by leave of court filed his answer to said bill, April 12, 1851, to which complainants replied generally. The answer states substantially that Core purchased the land from Harris, November 15, 1849, and paid him for it, $155.00 in hand, as appears by an article of agreement entered into between respondent and Harris, dated November 15, 1849, and exhibited with the answer, on the back of which said Harris acknowledged the receipt of the purchase-money aforesaid, and is'also prayed tobe taken as a part of the answer; that almost the entire tract of said land is lying in the county of Ritchie ; that at the time he purchased said land he had no notice or knowl
At the circuit court held for the said county of Gil-mer on the said 13th day of September, 1851, the following entry was made in this case: “The defendant, by counsel, files á copy of a deed from George W. Hardman to William Harris as an exhibit in this cause.” The deed beai’s date October 20, 1849, and purports to convey the land in the bill mentioned to William Harris with
On the 17th day of September, 1851, Raferty by leave of the court filed his answer to said bill, by which he admits that he purchased said land from Riddle who made him a deed for it; that, the larger portion of said land is in Ritchie county, but that his deed is recorded in Gilmer county; that in the year 1846, Hardman executed a title-bond to respondent conditioned to convey to him a tract of land of three hundred and thirty-four acres out of a fourteen hundred acre survey, which he alleged he purchased from H. O. Middleton. In consideration of said land and $50.00, respondent was to convey to Hardman the tract of land first above mentioned ; that Hardman has exeeuted a deed to respondent for the Middleton land ; but respondent is informed that a suit has been instituted against said Hardman and others, and against the whole fourteen hundred acre tract, to subject to sale for the purchase-money to him/ said Middleton, from said Hardman, and there is some defect in said Middleton’s title; that in either of which cases, the consideration for the land in complainants’ bill mentioned from Hardman to respondent would fail, as Hardman was to make a clear title to respondent. Respondent avers that he is willing and ready to make a title to said land, with warranty — the same as warranted to him from Hiram Riddle — whenever the cloud is cleared from the Middleton and Hardman title.
On the 13th day of May, 1853, it appearing to the court that Weden Hoffman had departed life in testate, leaving Sarah E. Hoffman, Thomas W. Hoffman, Mary O.Hoffman and Emma M. Hoffman, his children and heirs at law, of which the last three are infants, it was ordered that the cause be and stand revived in their name, and the suit as to the infants be prosecuted in the name of their next friend Richard P. Camden; and on motion of the defendant
The bill avers that Hardman after his purchase from Raferty “sold and agreed to convey said land, by covenants of general warranty,” to Harris, “and gave him a title-bond binding himself to convey when the purchase-money should be paid, and all the purchase-money being now paid, the said Harris is now entitled to a conveyance ;” that the actual date was not known to plaintiffs, but avers substantially that it was prior to the contract between them and Harris. Hardman, Harris and Core
In the present case, as neither party has the legal title, the oldest equity must prevail, unless Core has established that he has a greater equity than Camden and Hoffman, the first purchasers. It would seem that he had not, because Camden and Hoffman had not only
Again, Core admits, by his answer, that he had notice of the prior purchase before he obtained his deed from Harris. Even had that deed conveyed the legal title, it could not have improved his condition, if the doctrine laid down in Beverley v. Brooks et al., 2 Leigh 446, be true, that a subsequent purchaser must be a. complete purchaser, having both paid the purchase-money, and taken a conveyance before notice.
Under these circumstances, the equity of the first purchasers, Hoffman and Camden, being fully equal to that of the second purchaser, Core, it must prevail.
It is assigned that it was error “ in the court to decree a writ of habere facias possessionem to the complainants, the land being in the county of Eitchie, and not in the county of Gilmer, where the decree was rendered.” ■ It appears from Eaferty’s answer that the land lies in both Eitchie and Gilmer counties. Butthe statute authorizes process, from any court, whether original, mesne or final to be directed to the sheriff of any county. Code p 595, ch. 124, §2. The exceptions made by -the statute do not embrace the writ of possession. Therefore I think it is clear that the court did not err in directing the writ ot possession to Eitchie county, especially as most of the land lay in that county.
Decree Affirmed,