217 F. 875 | 4th Cir. | 1914
The plaintiff in its bill claims an equitable title to a tract of land containing 54 acres derived through successive conveyances from John W. Fleming, holding under an alleged parol gift from his father, Philip Fleming, made in 1870. Under the allegation that the equitable title set up is prior in date to the defendant’s legal title from Philip Fleming, dated December 18, 1874, conveying all the coal, iron ore, and other minerals and fire clay in and under a tract of land containing about 1,000 acres, including the land in dispute, the plaintiff asks that the defendant be enjoined from prosecuting his pending action of ejectment brought under the deed of Philip Fleming to him, and that he be required to specifically perform the agreement to convey attributed to his grantor Philip Fleming. The District Judge sustained a demurrer to the original bill, and after-wards under the new equity rules granted a motion to strike from the files the amended bill.
“First, ‘that the agreement relied on is certain and definite in its terms; second, that the acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved; and, third, that the agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party and place him in a situation which does not lie in compensation. Wright v. Pucket, 22 Grat. (63 Va.) 370; Plunkett v. Bryant, 101 Va. 818, 45 S. E. 742; Reed v. Reed, 108 Va. 790, 62 S. E. 792.”
In Wright v. Pucket, 22 Grat. (Va.) 374, and Crane’s Nest C. & C. Co. v. Virginia, etc., Co., 108 Va. 862, 62 S. E. 954, it is said:
“The tendency of all the modern eases, both in England and in this coun•try, is to prefer giving the party compensation in damages, instead of a spe*877 ■cific performance. Wherever damages will answer the purpose of indemnity, this alternative will be preferred, as it will equally satisfy justice, and will be coincident with the provisions and in support of the authority of the statute.”
“A demurrer will lie wherever it Is clear that, taking the charges in the bill to be true, the bill would be dismissed at the hearing, but it must be founded on this, that it is an absolute, certain, and clear proposition that it would be so; for if it is a case of circumstances, in which a minute variation between them as stated by the bill, and those established by the evidence, may either incline the court to modify the relief or to grant no relief at a.ll, the court, although it sees that the granting the modified relief, at the hearing will be attended with considerable difficulty, will not support a demurrer. Therefore, where a bill was filed for the specific performance of an agreement entered into by a bankrupt, by the intervention of an agent, and previous to the bankruptcy, a correspondence took place, through the agent, as to granting a lease, and the case turned upon the point whether the facts stated amounted to a perfect agreement, Lord Loughborough thought that, although the circumstances, as stated In the bill, amounted more to a treaty than a complete agreement, the question whether it was an agreement or not must depend very much upon the effect of the evidence, and therefore oveiTuled the demurrer.”
This rule was approved in Kansas v. Colorado, 185 U. S. 125, 22 Sup. Ct. 552, 46 L. Ed. 838, and Van Dyke v. Norfolk, etc., R. Co., 112 Va. 835, 72 S. E. 659, though in the latter case it was held to be limited by the consideration in actions for specific performance that the court “must be enabled to say from the facts and circumstances alleged in the bill whether the minds of the parties met upon all the essential particulars of the contract, and, if they did, then can say exactly upon what substantial terms they agreed and trace out the particular line where their minds met.”
“That the .said deed from Philip Fleming to John W. Fleming, dated February 23, 1878, hereinbefore filed as Complainant’s Exhibit No. 19, on its face indicates that the title of John W. Fleming, your orator’s predecessor in title, originated of that date. As a matter of fact, your orator charges that long prior to the said date, to wit, some time in the fall of 1870, the sain John W. Fleming became vested with a complete equitable title to the said boundary of land under and by virtue of a parol gift in the nature of an*878 advancement made to Mm by Ms- father, Philip Fleming, under the following circumstances: The said Philip Fleming had expressed his intention to divide his estate among his children during his lifetime. The said John W. Fleming,, who was at this time living with his father, became engaged to marry, and the said Philip Fleming, knowing this fact, and desirous to provide his said son with a home; offered to give to the said John W. Fleming, in the nature of an advancement, the choice of two parcels of land, both of which were portions of a tract containing about 1,000 acres conveyed to him by Warders. The said John W. Fleming selected the tract of land, which was then and there pointed out, indicated and described to him, as follows: All the land bounded by the Elias J. Eose tract, James A. Collier tract, and a line commencing at a beech on Big branch, the beginning corner of the said Eosetract, and running thence in a westwardly direction, and so as to take in the heads of the hollows to a sugar tree in the forks of the Sawpit hollow, then designated and agreed upon; thence a straight line to a large chestnut on Big branch, then designated and agreed upon; thence a straight line to the top of the ridge to a large chestnut, then designated and agreed upon; thence south up to the top of the ridge to a walnut on Short branch, then designated and agreed upon, on the Collier line; thence with the Collier and Eose lines to the beginning. The said John W. Fleming then and there accepted the-said parol gift as an advancement and in full of Ms portion of his father’s-estate and has never received any other property from the estate of his said father, Philip Fleming, who died intestate about 20 years ago.
“Immediately thereafter the said John W. Fleming entered into possession of the said land, made large expenditures thereon, and began to clear, fence, and cultivate the same, and in December, 1870, he erected a substantial log house thereon. On October 6, 1870, the said John W. Fleming married and' immediately moved upon said land and into the said house, and was living in the said house, cultivating and improving the said land, and in the open, notorious, and exclusive possession of every part thereof on December 18, 1874, the date upon which the said Philip Fleming executed an attempted deed, hereinafter filed as an exhibit, to J. D. Price and A. J. Steinman, and has lived upon and cultivated the said land up until the present time. Your orator would here state that the said land so indicated, pointed out, and given to the said John W. Fleming by his father, the said Philip Fleming, was and is the same tract of land which was afterwards conveyed to the said John-W. Fleming by deed dated February 23, 1878, hereinbefore filed as Complainant’s Exhibit No. 10.”
Thus the bill distinctly alleges (1) a contract by parol that John W. Fleming should have the land, supported by the consideration of love- and affection, and in pursuance of the intention of Philip Fleming to divide his property among his children, and of the agreement between father and son that this land should be all that the son should receive from his father; (2) the taking and holding exclusive and adverse and notorious possession of the entire land by the son; (3.) making large-expenditures thereon by the son, building a house, clearing and fencing,, and making it his family home in reliance on the contract.
This seems to be sufficient to bring the case within the rule stated in McLin v. Richmond, supra. It is true that the improvements made-by the son might represent little value in later conditions or in a developed or progressive community, but under such primitive conditions as-the bill implies it may be reasonably inferred that they were'the result of arduous and continuous labor bestowed in reliance on the contract that the title to the land should pass, and were such improvements of his-home as to make the loss of it irremediable. Whether this is so or not will be determined by the evidence. To say the least, it seems to us that
“The open and peaceable possession of land under a claim of right is notice to all the world of the right or claim of the person in possession; and where one buys land in the possession of another than his vendor or grantor, he is bound to take notice of such possession and of all that it imports.”
Possession of the surface was possession of all the untouched minerals under the surface. Steinman v. Vicars, 99 Va. 597, 39 S. E. 227. And there is nothing in the position that the notice given by possession did not extend to notice of claim to the minerals.
The decree of the District Court must be reversed.
Reversed.