Crawford v. M'Daniel

1 Rob. 448 | Va. | 1842

Lead Opinion

Allen, J.

There is no difficulty on the main point in controversy between these parties. The right of the vendees to compensation for the deficiency in the quantity of land sold is clear. The evidence of the contract is contained in the deed. The land is described as containing by survey 785 acres. Two adjoining tracts are conveyed. After describing the first tract by metes and bounds, the deed contains the following clause : “ this part containing 765 acres ; and another part attached to the same tract, containing 20 acres, and making up the full amount of 785 acresshewing very clearty that no hazard was contemplated. Each party laboured under a mistake; each supposed he was dealing for a specific quantity. The consideration to be paid shews that the price was 15 dollars per acre. This I do not consider as material, except as furnishing evidence of the character of the agreement, and that the parlies dealt for the land under the impression that it contained a certain quantity ; that it was this specific quantity the vendors contracted to sell, and the vendees to purchase. In the case of Blessing's adm'rs v. Beatty,^* all the decisions of this court were reviewed by judge Baldwin. The principle deduced from them was, that equity entertains jurisdiction and gives relief upon the ground of mistake : that the question is not affected, whether the sale was at so much per acre, or a sale of a tract supposed by both parties to contain a certain number of acres, for an aggregate sum or gross price : that in either case, if there was a mistake as to the quantity, equity will relieve, and give compensation for the excess or deficiency, though no fraud or misrepresentation appear. In the opinion then delivered I fully concurred.

Nor is there any thing in the conduct of the parties, or the time of filing the bill, which affects the claim to rejje£ ^ previous injunction had been obtained, because of some alleged defect of title. In this the purchasers failed. The mistake as to quantity was not discovered until afterwards; and thereupon this bill was filed. The cases of Nelson v. Carrington & others, 4 Munf. 332. and Carter v. Campbell, Gilmer 170. shew that where there is a sale by the acre, a right of surveying exists, whether expressly reserved or not, and that if no time is limited for making the election to survey, it may be done at any time before the whole business is closed between the parties.

The decree injoined not only the principal due, but the damages which accrued during the pendency of the previous injunction. As that injunction was dissolved and the bill dismissed, the defendants insist on their right to those damages, and that their claim to them rests on the same foundation with their claim to the costs incurred in that suit. The question seems not to have been expressly decided, though it was presented in the case of Carter v. Campbell, before cited. In that case there had been a previous injunction, which had been dissolved, and a suit and judgment on the injunction bond. A deficiency being made out in the second suit, both damages and principal were injoined. The decree as to this was affirmed, but the particular question now raised was.not discussed. It seems to me there is nothing in it. The interest accrued is always injoined. And damages are given in lieu of interest. They are entire. The court has no right to divide them, and say that 6 per cent, as interest shall follow the principal, and 4 per cent, be recovered as a penalty. Being allowed by way of interest, though denominated damages, they are an incident to the main subject. The last suit ascertains that the money was never due; and damages ought not to be allowed for withholding money to which the party was not entitled.

So far I think the decree right. But errors have been committed in the details, for which it must be reversed.

The vendees purchased from three individuals and their wives, the husbands holding in right of their wives. A bond executed by the purchasers to one of the vendors, was by him assigned to another of the vendors and a third person. A portion of this bond (600 dollars) being unpaid, the assignees recovered a judgment for the amount against the purchasers. This judgment was injoined. It is ascertained that on allowing for the deficiency, the bond is extinguished, and the purchasers have overpaid for the land actually conveyed. So far as the decree injoins the judgment, it was correct. In the actual condition of the cause, it wmuld have been improper to decree over in favour of the assignees, against the assignor or the vendors. One of the assignees occupied both relations, of vendor and assignee. There was nothing to shew'- the state of accounts between the vendors; and the purchasers had nothing to do with this matter. By taking the assignment, the assignees occupy the position of the assignor, so far as the purchasers are concerned. Whether the assignees will be entitled to recover from the assignor, will depend on the contract between them. No issue is made up in this case between them, nor any admissions made, which wmuld justify the court in decreeing over against the assignor for the amount of the bond.

But the decree not only injoins the judgment, but makes the assignees liable for the amount overpaid by the purchasers. It does not appear upon w'hat ground they wmre held responsible for this excess. The bond assigned to them had been partially paid, though to whom does not appear. The court, perhaps considering that they had received all but the balance, held ^etn liable for that reason. As assignees they had a right to receive all that was voluntarily paid to them. -ft was Pa'^ without any notice of the plaintiff’s equity, and they are entitled to hold what they legally received. J , _ , , . .„ f . J ° . Ihe remedy of the plaintirr tor the excess is against the vendors, and not the assignees, who have equal equity and the legal possession.

It seems to me that the court also erred in rendering any decree without having the representatives of Jones before it. M’Daniel and Jones were joint purchasers, received a joint conveyance, executed their joint notes for the purchase money, were jointly sued, and were joint plaintiffs in the first injunction. Jones afterwards died, and M’Daniel filed the present bill without joining the representatives of Jones as plaintiffs, or making them parties.

The general rule that all persons materially interested should be made parties, is too familiar to require authority to support it. And in regard to the nature of the interest, it is wholly unimportant whether it be a legal or an equitable interest of the absent parties in the subject matter of the suit. Story’s Eq. Pleading 137. This constitutes one of the leading distinctions between proceedings at law and in equity. A person with a mere equitable or remote interest cannot sue at law, and if he be improperly joined, the suit may fail. The analogies, therefore, derived from legal proceedings do not apply. Conceding that the right to recover here was a joint right which survived, and that M’Daniel might therefore have sued at law, it is equally clear that the representatives of Jones had an interest in the suit, so far as it went to establish a deficiency, and, for any thing appearing, a right to a moiety, possibly to the whole, of the money overpaid. Serious injustice might be sustained by them if the question of deficiency is to be determined in their absence; and a total loss inflicted on them, if the survivor be permitted to pocket the excess recovered. Whenever there is a community of interest between the parties, which may be affected by the decree, they should all be before the court. Thus in case of joint bonds or obligations, all the parties, obligors and obligees, are required to be made parties to the suit. 16 Yesey 326. Story’s Eq. Pleading 159. And the same rule is applied where one of the obligors is dead ; for in such case his personal representatives, as well as the survivors, must be made parties to a suit in equity brought for payment of the debt, whether it be for payment by the survivors alone, or out of the assets of the deceased. It seems to me that the correlative of the rule thus laid down is equally true, and that the representatives of the joint purchaser should be made parties here. In reality, this case is stronger than cases growing out of joint bonds, partnerships, and the like. These were joint purchasers of land. The right of survivorship as to the land is taken away; and though the breach here may have been incurred in the lifetime of both, yet it was an incident to a subject which did not survive, and in a suit to ascertain the extent of the breach, the amount of the deficiency, the representatives of the decedent were necessary parties. For this cause also, I think that the decree must be reversed, and the cause remanded in order that the representatives of Jones may be brought before the court.

Bkooke and Baldwin, J. concurred in the opinion of Allen, J.

* Reported ante, p. 287.

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Dissenting Opinion

Stanaed, J.

Notwithstanding I dissented from the majority of the court that decided the case of Blessing’s adm’rs v. Beatty, and still retain the opinion I formed of that case, I entirely concur in the opinion of my brother Allen on the main question in this case, respecting the right of the purchaser to an abatement from the purchase money for the deficiency of the land. In this case the proof is satisfactory that the sale was by the acre, and not in gross. I think it a sound general rule, that where the purchase money of a tract of land is a multiple of the number of acres specified as the contenls 0f tract, at a rate per acre in pounds, shillings and pence, or dollars and cents, corresponding with coins in use, or not being fractional, the just implication is, that the purchase money is ascertained by the multiplication of a rate per acre by the number of acres specified, and that the sale and purchase is by the acre; and in such a case the purchaser is entitled to an abatement for a deficiency, and is chargeable for the excess, unless such implication be controlled by express stipulation, or other satisfactory evidence ascertaining that such was not the real contract. This case furnishes this ground of implication, and much to strengthen, and nothing to impair or control it. On the contrary, where a tract of land by given metes and bounds, the contents or supposed contents of which are specified, is sold fora gross sum, not a multiple of the specified number of acres, but which would make a fractional rate per acre, not corresponding with any coins in use, or aggregations thereof, the just implication is, that the sale is by the tract in gross, and the specification of the number of acres but descriptive of the tract; and in such case the purchaser is entitled to the land comprehended within the designated metes and bounds, without right to abatement if the quantity be less than that specified, and without liability if it be greater. Such, I thought, was the nature of the sale in the case of Blessing's adm'rs v. Beatty, furnishing an ample foundation for the implication' that the sale was in gross, and consequently that the purchaser was only entitled to have the land within the specified metes and bounds, and getting that, was not entitled to recover for the deficiency of quantity, and would not have been responsible had there been an excess. I thought there was nothing in the case to control that implication, but much to reinforce it, and require the application of the general rule I have before indicated.

I do not concur in that part of the opinion which respects the necessity of making the representatives of Jones parties. The claim is for money jointly paid, or paid on joint account, upon a joint contract with M'Daniel and Jones, the consideration of which has failed. While Jones lived, it was a joint demand of himself and M'Daniel on the vendors, for money, and for money only. That demand, and the right at law to sue for it, survived to M’Daniel. It may be, that on adjusting the account of the joint purchase between the joint purchasers, they would be entitled to the amount of this demand in moieties, or in unequal shares, or one of them be entitled to the whole. But in this the vendors liable to the demand have no interest. They are discharged by accounting to the survivor, to whom the legal right to this joint pecuniary demand has survived. The only plausible reason for requiring that Jones's representatives should be parties would be, that the rights of the joint purchasers in the money that may be recovered should be adjusted, and their respective shares thereof decreed. Now this could not be done without involving in this case a settlement between the joint purchasers. In this settlement the vendors have no interest. On the one hand, this absence of interest precludes the parties liable to the demand from the right to require Jones's representatives to be made parties. On the other hand, I apprehend, those parties might justly object that the case should be incumbered with such an account, or that it and they should be retained in court until that account might be adjusted.

The decree of the court of appeals declared, that there was no error in the decree of the circuit court in allowing for the deficiency of quantity of the land, and in perpetuating' the injunction; but that the said decree was erroneous in proceeding to decree in the cause before the representatives of Richard Jones were made parties, and also in decreeing against the appellants for the sum of 292 dollars 50 cents, the amount overpaid by, the purchasers of the land for the quantity actually conveyed : therefore it was decreed and ordered, that the said decree, so far as the same is above declared to be erroneous, be reversed and annulled, and that the residue thereof be affirmed, with costs to the appellants. And the cause was remanded to the circuit court, with instructions to make the proper parties, and to be further proceeded in pursuant to the principles of the foregoing opinion and decree.