36 W. Va. 350 | W. Va. | 1892
On the 5th day of February, 1886, Patton Bros, instituted a suit in chancery in the Circuit Court of Logan county to enforce a judgment against L. S. Deskins, who with others
In pursuance of the decree of sale rendered in the cause of Patton Bros. v. L. S. Deskins, et al, Shumate, as special commissioner, advertised a tract of five thousand one hundred acres belonging to L. S. Desldns to be sold at public outcry on the 1st day of April, 1889. The land was accordingly sold to one W. H. Desldns, son of L. S. Desldns, at the price of ten thousand dollars; but the commissioner, upon being advised that an upset bid would be filed, advised the purchaser that he could not recommend a confirmation unless said purchaser would authorize him to raise «the bid to fifteen thousand dollars, which was done accordingly, and the sale was confirmed to W. II. Desldns at that price. The purchaser complied with all the terms of the sale by paying enough in hand on the day of sale to satisfy all costs of suit, and executing two bonds with approved security bearing interest from the day of sale for the deferred instalments of purchase-money.
Some thirteen days afterwards, on the 15th day of April,
At the july term following, 1889, of said Circuit Court, Olay & Ileadley filed their bill in chancery against W. II. Deskins, L. S. Deskins, Shumate and Sheppard, commissioners, William Blackham, and Stuart Wood, in which the plaintiffs charge a conspiracy on the part of the defendants to defraud the plaintiffs of the purchase-money, two hundred and thirty dollars, which they had paid on said lands ; and they prayed that the sale made by the special commissioner Shumate to W. H. Deskins be annulled and set aside; and that the defendants L. S. Deskins and William Blackham, upon the payment of the balance due them upon the contract of May 25, 1888, be compelled to make conveyance of said lands.to the plaintiffs, according to the terms of said contract; that the commissioner Shumate be enjoined and prohibited from making a deed of conveyance of said lands to W. II. Deskins or to Stuart Wood, or to any other person, until the termination of this suit; .and that W. II. Deskins be restrained and inhibited from paying the commissioner any further purchase-money; and that Stuart Wood be enjoined from paying to W. II. Des-kins any of the purchase-money for said lands, until the further order of the court.
The several defendants filed demurrers to the plaintiffs’ bill, and the plaintiffs joined, but there is no formal entry of any action of the court upon these demurrers, nor are they mentioned in the final decree. Answers were then filed, with general replications thereto, and numerous depositions were taken by the respective parties.
From this decree the defendants below have appealed to this Court.
As the court below seems not to have acted upon the demurrers formally, and as we shall place our decision upon the broad merits of the case and the equities between the parties, I shall omit to discuss further the points raised by counsel on the demurrers to the bill.
This is a bill for specific performance, and, it will be un-necssary to discuss the regularity of the sale by the special commissioner, Shumate, to W. II. Deslcins, since that question and all incidental questions connected therewith are matters in which the plaintiffs can have no interest, unless they are themselves entitled to specific performance of their contract. Are they so entitled?
In order to answer this question, the court will consider all the facts and circumstances as disclosed by the record and evidence. These plaintiffs were pendente lite purchasers and are presumed to have had knowledge of the pen-dency of the suit, and that the very lands they were then contracting for, the court had ordered to be sold. If ever there were a case where time was of the essence of the contract, such, surely, was the character of this sale by a debtor whose lands were then resting under a decree of court to be sold at public outcry for whatever they might bring, to satisfy the liens existing again.-t them. The stipulation of the contract was that the purchasers should have the land surveyed at once, and should pay the full purchase-money within ten months from the date of
Now, if these complainants were acting with that diligence and good faith which should characterize those who seek specific performance from a court of equity, why did they permit this land to he set up at auction, when by compliance with the terms of their own contract and by the payment of the money then overdue they could have lifted all liens, and relieved the land and prevented the danger of a sacrifice?
Instead of acting thus, with diligence and good faith, they not only permit this land to be set up at public auction, but boldly avow their intention to bid upon the land themselves, and are here now complaining that their purpose in that respect was frustrated, blow, the avowal and entertainment of such an intention on their part are of themselves badges of fraud, for why should they' desire to bid on these lands which they had already purchased at a price beyond fifteen thousand dollars, if it were not that they proposed to got them, if possible, at a less price at public outcry ?
Moreover, as if to close against themselves every avenue of escape from the charge of bad faith, they avow in their bill that they had engaged C. W. Brockunier, a capitalist from Wheeling, to come to Logan court-house to bid upon these lands in their interest, and that said Brockunier actually7 informed the special commissioner, after the lands were knocked oft' at ten thousand dollars to W. Ii. Beskins, that he, Brockunier, acting on behalf of plaintiffs, was going to put in an upset hid ,at fifteen thousand dollars. ITow, why7 should these parties desire to make a bid of fifteen thous- and dollars on lands for which they had already bound themselves to pay fifteen thousand five hundred and fifty five dollars, which sum was then already7 overdue, and which, if they7 were acting with good faith and diligence,
The principles which govern courts of equity in grauting specific performance have been frequently defined by this Court, and the courts of appeals of Virginia. Richardson v. Baker, 5 Call 514; Bowles v. Woodson, 6 Gratt. 78; Hale v. Wilkinson, 21 Gratt. 90.
The general principle which we find pariiculavly applicable to this ease is laid down by Mr. Waterman, as follows : “Laches of the vendee, depriving him of the right to insist upon the contract of sale, may consist simply in neglecting to make his payments, or to fulfill some other essential condition, or in not only failing fur a long period to fulfill on his part, but by lying by and seeing the property sold to a third person, or in neglecting to file a bill to enforce the contract against the vendor. The usual maxim is that a party seeking specific performance must show himself ready, desirous, prompt, and eager to perform the contract. Where, in a contract for the conveyance of land, no time is fixed for the payment and delivery of the deed, payment must be made in a reasonable time or on request. The delay of the purchaser without excuse, which will preclude a decree for specific performance in his behalf, may, as we have seen, be measured by years or months, according to the circumstances of the particular case. But be the time long or short, when it indicates a virtual abandonment of the contract on liis part, it will deprive him of all just claim to equitable interposition.” / Wat. Spec. Perf. § 475 ; Ives v. Armstrong, 5 R. I. 567; Shortall v. Mitchell, 57 Ill. 161.
The plaintiffs in this case do not seem to have shown either good faith or diligence, and they were not entitled to specific performance. So far as they were concerned, therefore, it makes not the slightest difference whether the sale to W. H. Deskins was regular or otherwise.
The bill, however, charges a deliberate conspiracy on the part of Commissioner Shumate and L. S. Deskins, W. H. Deskins, and Stuart Wood to defraud the plaintiffs out of the purchase-money (two hundred and thirty dollars) which they had paid on the land; With reference to this charge
The decree below must be reversed, and the bill of complaint dismissed.
Reversed-. Bill Dismissed.