73 W. Va. 624 | W. Va. | 1914
On a bill for compensation for excess of land in a sale and conveyance thereof by the acre, filed by J. S. Craig and the executor of the will of W. M. Tyree against the Gauley Coal Land Company, the trial court found the land conveyed had over run the estimated quantity by 159-67/100 acres and entered a decree for the purchase money thereof at the rate of $5.00 per acre with interest thereon from March 18th 1891, the date of the deed which amounted at the date of the decree to the sum of $1758.35. It further declared said sum to be a lien upon the land1 by virtue of a reservation in the deed, and ordered a sale of the land, in case of default in the payment of the sum so ascertained and decreed.
The- several defenses set up to the bill were: (1) that the
The land was conveyed by metes and bounds as a tract containing by survey 900 acres, and the purchase money computed and agreed upon as $4500.00, of which $1500.00 was paid in cash and the balance left as a lien upon the land, payable in two installments, due respectively in six months and one year from the date ‘of the deed. Reciting these two notes, representing the deferred payments of the purchase money, the deed reserved the vendors lien in the following terms: “to secure the payment of which a lien is expressly reserved on the land hereby conveyed. ’ ’
Reciting a consideration of “five dollars per acre,” the deed virtually says the contract of sale was by the acre and not of a tract of land in gross. If the specification of nine hundred1 acres as the quantity of the land and the recital of forty five hundred dollars' as the purchase money, the latter being an exact multiple of the former, renders the deed ambiguous on its face as to whether or not the sale was by the acre, the recital of five dollars per acre as the consideration of the grant resolves such ambiguity in favor of the grantors, for presumptively it is a recital pro tanto of the contract pursuant to which the conveyance was made, whether that contract was verbal or written. When considered as raising an ambiguity as to the character of the contract, the recitals of quantity and total . amount of purchase money are treated as mere circumstances, not as terms of the contract, importing agreement. As circumstances, they raise a doubt as to the character of the contract, removable by resort to extraneous' evidence. In the recital as to the consideration
If the vendor’s lien reserved secures the payment of the excess of purchase money, justly due under the terms of the contract, in excess of the estimated amount, forty five hundred dollars all of which has been paid, the third and fourth grounds of defense may be ignored as being immaterial. The lien as reserved does not in terms cover such excess, unless the word's in which it is reserved can be supplemented by the recital as to the terms of the contract. After having set forth a description of the land by metes and bounds, the deed proceeds as follows, “ containing by survey nine hundred acres; the purchase money for same aggregating four thousand five hundred ($4500.00) Dollars one third— fifteen hundred ($1500.00) dollars of which is to be paid in hand on the delivery of this deed fifteen hundred ($1500.00) dollars six months from the date hereof and fifteen hundred ($1500.00) dollars the residue thereof in one year from said date for which last two payments notes have been executed to the parties of the first part, bearing even date herewith and legal interest from date and to secure the payment of which a lien is expressly reserved on the land as hereby conveyed.” As has been shown, the contract really calls for more than forty five hundred dollars, in the event oof an excess of land, for it requires the grantees to pay five dollars for each, and every acre. The terms in which the lien is reserved however, literally cover only the estimated amount of purchase money, less the cash payment of fifteen hundred dollars. Important inquiries therefore, are whether the entire deed may be considered for the purpose of determining the extent of the lien, and, if so, whether, all of its provisions considered, the lien reserved extends beyong the unpaid three thousand dollars of estimated purchase money. Another paper of subsequent date has been put into the record under the supposition of its relevancy and materiality upon these
The contract for purchase money and the reservation of the lien are separate and distinct things, independent contracts; for, in the absence of a special agreement for it, made in a prescribed manner, there is no lien for purchase money, however evidenced as a debt and however clear the right to it. In the absence .of an express reservation of a lien in the deed, the obligation for the purchase money does not adhere to the land as an incumbrance t-hereon. The lien is governed altogether by .the terms in.which it is reserved, and sustains no peculiar relation to the contract of purchase. It. may include more or less land or a greater or less interest than was conveyed. Patterson v. Grottoes Company, 93 Va. 578; Patton v. Hoge, 22 Gratt. 443; Jones on Liens, sec. 1114.
The-saving clause in the release, read with the reservation, does not enlarge it. On the- contrary, the release discloses satisfaction of the lien whatever its extent may have been. The first part of- that instrument unconditionally and unqual-ifiedly releases “the right reserved” in the deed, and so clearly extinguishes the lien. The saving clause was a mere precaution against estoppel by the release from collection for any additional acreage that might be later discovered. It contains not a word expressive of intent to continue the lien for any purpose. Hence it does not limit or qualify the antecedent full and complete release. To apply this paper otherwise would do violence to settled rules of interpretation. All of the words must be allowed effect according to their usual and ordinary meaning, if possible, and, to permit them so to operate, it is necessary to treat-the first clause as a complete- release of the lien and the- other as a mere saving against an apprehended estoppel by implication from collection of compensation for a possible excess by the ordinary remedy,'a suit at law or in equity.
When the statute of limitations, the protection of which is invoked by the demurrer to the bill, begins to run against causes of action arising out of mistake depends upon the circumstances of the case and the nature of the subject matter. The broad proposition asserted in Craufurd v. Smith, 93 Va. 623, 631, that no lapse of time or delay in bringing the suit, however long, will defeat the remedy in eases of fraud or mutual mistake, is not to be taken without its qualification, that the party must be without fault, negligence or lack of
The bill in this cause carries on its face an admission of knowledge sufficient to put the plaintiffs upon inquiry as to the quantity of land. In the deed exhibited therewith, they stipulated for. compensation for any land there might be in the tract beyond the supposed, reputed or estimated area, and the release executed by them in 1893, fifteen years before the institution of this suit, discloses anticipation on their part of an excess, in the provision against estoppel therein made. Under the authorities already cited, this was sufficient to put the statute in operation against them, unless they were influenced to forego investigation by fraudulent conduct on the part of the defendants, amounting to concealment of the cause of action. It imposed duty upon them to ascertain for themselves and at their own expense whether there was an excess, for there was no undertaking on the part of the grantees to make the investigation for them. They were dealing at arms length. There was no confidential relation between them. The grantees were under no duty to disclose to the grantors subsequently acquired information as to the quantity of the land. That they afterward surveyed the land, finding an excess; of 174 acres, and sold-the timber on it as a tract containing 1074 acres, and nevertheless permitted it to remain on the land books for taxation, or kept it there, as a tract of 900 acres, facts alleged as matter of concealment or fraud, are clearly insufficient to take the casé out of the statute. They were all res inter alios acta. When such acts are admissible in evidence at all, they are merely corroborative of similar acts or transactions directly between the parties themselves. 20 Cye. 118, 119. The bill alleges no representation of any kind or character as to the quantity of the land from the grantees to the grantors, nor any other act done to them, having a tendency to mislead.
Upon these principles and' conclusions, the decree will be reversed, the demurrer sustained and the cause remanded with leave to amend the bill.
Reversed and Remanded.