67 W. Va. 407 | W. Va. | 1910
This is an appeal from a decree of the circuit court, pronounced February 18, 1908, denying to a purchaser abatement of purchase money on account of alleged deficiency of acres sold and purchased.
By decree of August 8, 1887, and another supplementing it of October 14, 1892, special commissioners appointed were authorized to make sale, upon the terms prescribed, of “396
The report of the commissioners to whom the cause was referred, on August 3, 1887, reported the Home Farm as “containing 396 acres, 1 rood and ,26 perches, value $55.00 per acre;” but the report of the commissioner appointed to assign dower to the widow, returned June 7, 1892, with accompanying plat and survey made by T. G-. Baylor, surveyor, shows the Home Tract by metes and bounds to contain 409.65 acres.
The commissioners in their published notice of sale, set for November 15, 1892, describe the Home Tract as composed of three several tracts as follows: ■ (1) 250 2-10 acres of fine farming land, with some woodland, but no improvements, lying south of the river road; (2) 152 5-10 acres of No. 1 land, 'with the improvements lying north of the river road; (3) 6 acres of land with grist and saw mill and dwelling lying on both sides of turnpike, aggregating 408 7-10 acres. They also gave notice that in making sale the first two tracts would be offered together, then all three tracts together, the choice of bids to be accepted, and referred prospective purchasers to plats of the land in their possession at Charles Town.
Parthenia Singleton became the purchaser, and the commissioners on the day of sale entered into a contract in writing with her, made a part of and returned along with their report to the court of said sale.
' The decree confirming said sale, December 2, 1892, recites the sale and purchase by said purchaser “of the land in the proceedings mentioned, to-wit: a tract of four hundred and nine acres and eighty five hundredths, at the price of forty dollars and twenty five cents per acre, and the Mountain tract of four hundred and nineteen acres at four dollars per acre.” This decree also directs the Qpmmissioner to “at once proceed to complete said sale by making and delivering to the purchaser a deed for said lands, and taking from her her bonds for the deferred payments secured by a deed of trust upon said lands.”
A subsequent decree of December 14, 1892, overruling exceptions to a Master Commissioner’s report, adjudged that Barton and Boyd should be paid $1000 with interest thereon, and Marshall McCormick be paid the like sum of $1000, with interest thereon, being in addition to sums previously decreed to be paid them, and then provides how the residue of the purchase money, including the last payment to be made on the death of the widow, should be distributed, first to creditors, and then to the heirs and distributees of the decedent.
The deed made, executed and delivered by said special commissioners to Mrs. Singleton, the purchaser, December 23, 1892, recorded in Jefferson county; April 29, 1893, recites the sale of said lands “according to the terms and conditions required by said decrees, at which sale the said Singleton became the pur-' chaser for the sum of eighteen thousand one hundred and seventy two 66-100 dollars;” the confirmation thereof by the subsequent decrees of December 2 and 14, 1892, and describes said
The first order relating to the original petition of Mrs. Singleton praying for an abatement of purchase money entered in the cause March 2, 1894, is as follows: “This the 2nd day of March, 1894, came Parthenia Singleton and asked leave which was granted to file her a petition in the above entitled cause.” No order is found in the record formally filing said petition, but it is copied into the record by the clerk, following this order; on November 26, 1901, the following order was entered: “This cause coming on to be heard this 26th day of November 1901 upon papers formerly read and the petition of Parthenia Singleton filed at a former term, it is ordered that the clerk of this court issue process to all parties interestéd in said petition returnable to next term of court, and an order of publication may issue against non-residtent parties.” So far as the record shows process never issued on this petition. Parthenia Singleton died March 25, 1902, a little less than three months after the entry of the last order. No further proceedings appear to have been taken upon said petition until October 19, 1906, ■when James J. Singleton, administrator, intervened by filing his petition, in which he refers to the former petition of his decedent, makes the same part of his petition, reaffirms each and every allegation of her petition as if in his petition again set out in full, prays that said proceedings be revived in his name, and makes parties thereto those appearing from said proceedings to be creditors, administrators and heirs at law of H. W. Castleman, deceased, and the personal representatives of those who had died pending said proceedings. He also makes the prayer of her petition the prayer of his petition and prays for process and general relief. On the day he presented this petition an order was entered filing the same, and reviving the cause in his name as administrator, and remanding the same to rules for process. Process was sued out thereon November 12, returnable to December Rules, 1906, was duly accepted or served upon all resident defendants, and there was order of publica
After setting forth the interests of the defendants as disclosed by the record, and the several orders, decrees and proceedings aforesaid, the petition specifically charged that about January 1, 1893, information was first brought to her attention, which led the purchaser to believe that an error had been made in the acreage of the home farm as sold to her; that she employed S. Iiowell Brown, county surveyor, to make a survey thereof, who ascertained and reported to her that the same contained only 398^ acres, and which she alleged' was. a true and accurate survey, showing a shortage or deficiency of 11.60 acres in the number of acres sold to and purchased by her. Petitioner filed with her petition as a part thereof the surv.ey and plat of said land, so made by the county surveyor, with his affidavit thereto, that he believed his survey to be correct. Defendants did not plead to or answer the petition.
Thus is presented the question whether the purchaser upon the petitions filed is entitled as prayed for to credit upon the last purchase money bond of $6057.55, with the sum of $466.90, the price of 11.60 acres at the rate of $40.25 per acre with interest.
Clearly the sale was a sale by the acre, not in gross. True as argued the original decrees of sale did not specifically authorize a sale by the acre, but the special commissioners assumed to make a sale of the land in that way. They so reported the •sale to the court, and it was so confirmed as sale by the acre. This would entitle the purchaser to an abatement of purchase money if there is a deficiency. 24 Cyc. 54, E note 7. This authority, supported by court decisions cited in the note, says: “When by mistake resulting from the actions of the court or the misrepresentations of its agents less land is sold than was bid for and supposed to have been sold, the purchaser will be allowed a proportionate abatement of the purchase price when the property was sold by the quantity, but not when sold in gross as a specific tract.” When, the court confirmed the action of its commissioners in making sale by the acre it thereby adopted and approved their act. In all judicial sales the court is the vendor-and contracting party on the one hand, and the purchaser on the other. The commissioners are merely the
It is the universal rule, and many cases in this state and in Virginia so decide, that if a deficiency in quantity-is found, ■where the sale has been by the acre the purchaser will be entitled to an abatement, and that a court of equity will, even after deed made, abate the deficiency from the unpaid purchase money. See eases collated in 13 Cyclopedic Dig. 595, 9 a. And this rule is applicable alike to sales by the court and under court decrees, as to sales by individuals. Watson v. Hoy, 28 Grat. 698, Va. Rep. Anno. 220, and note; Crislip v. Cain, 19 W. Va. 438; Cooper v. Hargis, (Ky.) 45 S. W. Rep. 112; Carmody v. Brooks, 40 Md. 240; Brown v. Wallace, 4 Gill. & J. (Md.) 479, 508; Marbury v. Stonestreet, 1 Md. 147; Strodes v. Patton, 23 Fed. Cases 237, No. 13, 538; Myers v. Lindsay, 73 Tenn. 331; Trigg v. Jones’ Adm’r, (Ky.) 42 S. W. Rep. 848.
But it is said that- although the purchaser, in 1894, obtained leave to do so she never in fact filed her petition; that the order of November 26, 1901, treating it as having been filed at a former term, and directing process thereon, was a misreeital, and that no process having been in fact issued thereon, defendants were not bound thereby, and that not only these proceedings, but the proceedings upon the amended petition filed by the administrator in 1906, the purchaser in her petition admitting knowledge of the alleged deficiency as early as January, 1893, came too late, and that relief was rightfully denied under the rule caveat emptor, and because of laches, and because the decrees confirming the sale and distributing the proceeds thereof to creditors and distributees being final were not reviewable, except upon bill of review filed in time and with proper aver-ments.
The authorities do not support the position of counsel. A purchaser at a judicial sale is not precluded by such decree
Nor do we think the rule respecting laches applicable. No one can be injuriously affected by- the abatement. At least no equities appear, and none are alleged by way of defense. The last payment of purchase money is still in the hands of the purchaser, or her representative. She is not suing to recover back money paid. .Within a yeár after sale and confirmation thereof, and after discovering the mistake, she presented and obtained leave to file her petition setting up the mistake and praying for an abatement, thus making a record in the cause of her claim;
It is further contended, in support of the decree below, that petitioner did not make out a case for relief, that the petition was not sworn to as it is claimed a bill of review or petition to rehear, based on after discovered evidence, is required to be. The petition is not a bill of review, nor a petition to rehear the decrees, and the rules applicable thereto are inapplicable. The petition charged a mistake, a shortage in the land sold.
Another question presented by the record, but not by counsel, has given us some trouble. The shortage of 11.60 acres is less than .three per cent, of the total acreage sold. Should the arbitrary rule of five per cent, first announced by this Court in W. M. & M. Co. v. Peytona C. C. Co., 8 W. Va. 406, 437, and recognized in Pratt v. Bowman, 37 W. Va. 715, 721, be applied here? If it should, the shortage being less than five per cent., petitioner did not make out a case for relief. One answer to this question, suggested in council, was that the rule was inapplicable to cases of sales by the acre, but only where land is sold as containing a definite number of acres “more or less,” or “estimated to contain” a certain number of acres, or with like descriptive 'words. B-ut as this allowance of five per cent, is intended to cover inaccuracies reasonably imputable to variation of instruments and small errors in surveys, Pratt v. Bowman, supra, p. 721, we do not see why upon principle, it should not be applied in cases of sales by the acre, for in either case parties must necessarily be deemed to contract with reference to all inaccuracies. Hilliard on Vendors, (2nd Ed.) 329.’ This writer says: “But, in general, on a sale of land by the acre, relief is to be granted for all deficiencies, not reasonably inrputable to the variation of instruments and small errors in surveys, whether the purchaser has expressly retained an election to have the tract surveyed, or not.” Citing therefor Nelson v. Carrington, 4 Munf. 332. But where and how did this arbitrary rule of five per cent, originate? Judge IIoeeMAN in W. M. & M. Co. v. Peytona C. C. Co., supra, at page 437, says: “It is settled, in Virginia and West Virginia, that when a person has sold and conveyed a tract of land, described as containing a definite quantity, at a specified price, it is presumed that the estimated quantity was believed to be substantially correct — within five per cent, of exact accuracy; that it constituted a material element in the determination of’ the price; and that, unless it 'appear that considerable uncertainty or actual risk as to the quantity was contemplated or intended; if in fact the quantity is afterwards ascertained to be materially less, and the purchaser properly asserts his right in a reasonable time and under reasonable circumstances, a court of equity
In the absence of any showing to the contrary we think the petitioner was entitled to the relief prayed for. The decree below will therefore be reversed, and such decree as the circuit court should have entered will be entered here.
Reversed and Rendered.