77 Va. 827 | Va. | 1883
delivered the opinion of the court.
On the 18th day of January, 1866, Abram Click and Jonathan S. Speck, of the county of Rockingham, sold and conveyed a tract of land lying and being in the county of Augusta, described by metes and hounds, and containing four thousand acres, to John T. Green and W. F. Sadler, of Cumberland county, in the state of Pennsylvania, for the consideration of $3,120, mentioned in the deed. The four thousand acres thus conveyed was part of a fifty-two thousand acre survey, situated partly in each of the counties of Augusta, Pendleton and Rockingham, the fee simple of which was in one Emily Hollingsworth, of the city of Philadelphia, in the state of Pennsylvania. This fifty-two thousand acre tract was kept regularly upon the land hooks of Augusta county in the name of said Emily Hollingsworth, and those under and through whom she derived title, and the taxes regularly paid, hut by some oversight, not explained, the same got on the land hooks of said county of Rockingham, and for non-payment of taxes there, was, in 1860, sold as delinquent land for taxes supposed to he due, and was
Subsequently, to-wit, in the year 1880, said Emily Hollingsworth brought her action of ejectment in the circuit court of the United States for the western district of Virginia at Harrison-burg, Virginia, against said appellees, Green and Sadler, and others, to recover the said Hollingsworth survey of fifty-two thousand acres as aforesaid, which embraced as part thereof said four thousand acres, sold as aforesaid by Click and Speck to said Green and Sadler. To this action of ejectment the said Click and his and the said Speck’s vendors and others were also made parties defendant, but said Speck having died' insolvent, some years previous, was not made a party. At the May term, 1881, of said circuit court of the United States, the said ejectment suit was tried, and the said Emily Hollingsworth recovered said land, as also the balance of said survey of fifty-two thousand acres, by title paramount, excepting certain parcels previously sold and conveyed by her.
Pending this action of ejectment, and within two months prior to the survey, therein, said Abram Click, the surviving alienor of said Green and Sadler, by deed dated the 1st day of March, 1881, conveyed to his son, David G. Click, who lived with his father, his tract of land of one hundred and eighty acres, situated in said county of Rockingham, on which said Abram Click lived and continued to live, for the consideration
After being thus evicted, the appellees here, said Green and Sadler, instituted their action at law to recover upon the covenants contained in the deed of conveyance to them from said Click and Speck; and, pending said action at law, filed their bill setting forth their said purchase, the conveyance by Click and' Speck to them, the eviction aforesaid, the conveyance aforesaid from Click to his son; and charging that said conveyance was made to hinder, delay and defraud the creditors of said Click, and especially the complainants, prayed that the same be set aside and annulled as fradulent and void; and that said Abram Click, David G. Click, and H. P. Click be made parties defendant to said bill, required to answer the same on oath, and that they be enjoined from disposing of said lands or the proceeds thereof, and for general relief. Being required to make election which suit they would proceed with, the appellees dismissed their said suit at law, and proceeded in their said suit in equity.
Abram Click, the father, and his said two sons, his alleged alienees for value, each severally answered said bill and denied that said deeds were made to hinder, delay and defraud either
The complainants, in their bill, among other things, charged that said Abram Click was making away with the bonds taken from his sons, as if for the land conveyed to them, and that said sons were aiding him in doing so.
In his answer Abram Click denies that he has assigned any of the bonds taken for said land, except some to bona fide creditors of his; but fails to disclose how many, the amount, or who said creditors and assignees are. And proceeding in his answer to give an account of, and to show good faith in, his dealings with his said two sons, he says: “Respondent had made it a rule to agree to pay his sons $100 a year for their services so long as they remained with him and worked upon the farm, after they were respectively -twenty-one years of age.” That “prior to the 29th day of March, 1819, your respondent made an arrangement with his two sons, John F. Click and and David Gr. Click, by which he sold them his home farm and certain personal property, for the sum of $9,000, in long payments, and the support of himself and wife for their several lives, as evidenced by the deed of respondent and wife, of the date aforesaid, then duly authenticated, filed and prayed to he taken as part thereof; that David Gr. and John F. Click used and enjoyed the farm and personal property, so conveyed to them, for two years, when, upon considerations and terms agreed upon between them, they returned to your respondent said deed, which had been delivered to them, but by negligence not recorded, and requested respondent to convey the land aforesaid, by another deed, to said David Gr. Click alone; which respondent did. The deed then made by respondent and wife is the de.ed, a copy of which is filed by the complainants with their bill.” That “respondent had made it a rule to agree to pay his sons $100 a year for their services as long as they remained with .him and worked on the farm, after they came respectively twenty-one
Said Abram Click, further on in his answer says: There were no liens on said lands conveyed by him, when either said first or second deeds were made and delivered, and that complainants have none now. But, he says, he did owe some debts, (to whom or to what amount he does not disclose) and so far from making this arrangement with his sons for the purpose of hindering, delaying or defrauding his then existing or future creditors, one strong inducement was to pay his debts; that another great reason was to get rid of the care of the farm (he then being as stated in his answer only a little over sixty years of age) and to provide a fund for the payment of his debts, and a support for himself and wife for the remainder of their old age. And further answering he holds up the fact of the extraordinary-length of time through which the payments from his son, David G., to him are made to run, as conclusive evidence of fair dealing. The answers of David G. and H. F. Click are, respectively, to the same effect.
At the May term, 1882, of the circuit court of Rockingham, the cause came on to be heard, when a decree was rendered in favor of the complainants in said chancery suit against said Abram Click for $3,120, the purchase price mentioned in the said deed from Click and Speck to Green and Sadler, with interest from the first day of May, 1881, the date of the eviction aforesaid, and costs; and declaring said deeds, to-wit, the deed from Ahram Click to John F. Click and David G. Click of date March 29, 1819 ; and the deed from said Abram Click and wife to David G. Click of the first day of March, 1881, to have
From that decree this appeal was taken.
The several questions which arise will now be considered in the order in which they occur.
The first question which presents itself is, what is the rule as to the measure of damages which a warrantee of land is entitled to recover upon eviction ? Upon this point the appellants concede that the rule was correctly laid down by the circuit court, but they insist that the said court erred in the application of the rule to the facts of the case; for, they say, the covenant in the deed from Olick and Speck to Green and Sadler is not, in terms, either joint and several, or joint or several, and that the grantors or covenantors were thereby only bound each for a moiety of said purchase money. On the other hand, the appellees claim that the covenant is joint; that Click, the surviving covenantor, is bound for the whole purchase money with interest from the date of sale, instead of from the time of eviction, as decreed by the court below; and to maintain this proposition, it is strenuously insisted by counsel for the appellee that their clients purchased this land in a wild unimproved state, that its chief value was in its timber and minerals, such as coal, iron ore, &c., which were supposed to exist in and upon said land, which could only be utilized and made valuable after said purchase by the construction of railroads near said land, and that by reason of a projected railroad in that locality, said land had, at the time of said eviction and loss of the land to the purchasers, become greatly enhanced in value, and being wholly unimproved either before or since said purchase, the purchasers, the appellees, have not only lost the land, from which they have derived no benefit, but have lost the benefit of the greatly increased value of same. However plausible the argument in a case like this, or with whatever force it has been or may be presented, it cannot be entertained as a rule of decision by this court, for the
On this subject, in Eawle on Covenants for Title, 537, it is said: “Whether the liability created by covenants for title he joint or several, or joint and several, obviously depends upon the terms in which they are expressed. When an obligation is created by two or more, the general presumption is that it is joint, and words of severance are required in order to confirm the liability of the covenantor to his own acts.” So, Platt •on Covenants, page 117, says: “Very few questions have been ■agitated, whether covenants on the part of covenantors have ¡been joint, several, or joint and several; the language has generally been sufficient to indicate the intention of the parties, ¡and the nature of the covenant in this respect.” In the case ■under consideration, there are no words indicating severance; ■on the contrary, the terms employed necessarily import a joint ■obligation; and in this respect the decree of the court below is without error.
The next question necessary to he noticed is, whether the conveyances aforesaid, from Abram Click to his said sons, were fraudulent and void. This is, in this respect, a very unusual case. It may justly he characterized, in general terms, as bristling all over with ill-concealed intent to hinder, delay, and defraud creditors. Only a few months prior to the institution of the action of ejectment by Emily Hollingsworth, which resulted in the eviction of the appellees, Green and Sadler, the appellant, Abram Click, the surviving and solvent alienor to said Green and Sadler, conveyed almost his entire estate, real and personal, to two of his sons, John E. and David G. Click, for the pretended consideration of $1,250 cash, and fifteen annual payments of $500 each, and one, the last, of $250, making said snm of $9,000; thus making the deferred payments run through
Another question for determination is, is the consideration mentioned in the deed from Olick and Speck to Green and Sadler the true consideration? The appellants say it is not, and much is said in evidence pro and con. That the consideration named in a deed may be enquired into is well settled. Summers v. Darne, 31 Gratt. 804. But the covenator takes upon himselfj when he undertakes to show a different consideration from that named, the burden of establishing it by satisfactory proof. Nothing of the kind is proved in this case, therefore the court below was right in adhering to the consideration named in the deed. For these reasons we are all of opinion that there is no error in the decree complained of, and that the same must be affirmed with costs to the appellees. Which is ordered to be certified to the said circuit court of Bockingham.
Decree aeeirmed.