80 W. Va. 21 | W. Va. | 1917
The general issue raised by the pleadings in this cause is whether or not a certain contract for the sale of real estate is valid. The original and amended and supplemental bills attacked it upon two grounds, fraud in the procurement thereof and fatal uncertainty in the description of the subject matter. In response to these attacks and the prayer for cancellation, the defendants filed their answer and cross-bill praying specific performance. The decree appealed from granted, the relief prayed for in the bill, upon the theory of fraud in the procurement of the contract, and dismissed the cross-bill.
If unaided by anything else in the paper, the descriptive clause might be so indefinite as to render the contract void for
The application of this rule does not, however, completely solve the problem presented. The land claimed under the contract was not all in one boundary. The portion described as being “All of the land lying East and West of Meadow River, at Rader’s Ford” was the tract on which the vendors resided. “That portion lying on Laurel Creek near With-row’s Mill” is separated from the tract on which they resided, by another tract of 150 acres, which they seem to have sold out of their farm. It is composed of two tracts, one derived from Ashley, containing 16.7 acres and the other from McClung and containing 26.3 acres, a remnant of a 400 acre tract out of which the 150 acre tract was sold, leaving a large remnant at one end and a small one at the other. On the large one, they resided, wherefore the contract covers it; but it is not broad enough in its terms to reach the non-contiguous tract of 43 acres, composed of these two small tracts. It does not purport to sell all of the lands of the
A letter signed by A. F. Crookshanks and dated September 6, 1905, less than one month after the date of the contract, describes these two small tracts as being land covered by, and
Pending the suit brought by the husband and wife, the former died and it was revived in the names of his administrator and heirs. For the most part, the testimony relied upon .to sustain the allegations of the bill and amended and supplemental bill, was that of the. widow and the children. This was objected to on the ground of ineompetency on their part, because of their interest in the result of the suit. It is unnecessary to enter upon any inquiry as to their competency, for their testimony, if admitted, would be insufficient to make out a case of fraudulent procurement. They may be competent witnesses as to some of the matters to which they testified but not as to others. Some of the transactions referred to by them may have been personal communications and others not. On the other hand, they may be fully competent. In view of the insufficiency of all of their testimony, if admitted, it would be a waste of time and labor to apply the test of competency to all of the various matters referred to by them. Telluric Co. v. Bramer, 76 W. Va. 185.
The representations relied upon to establish fraud did not pertain to the value or character of the land. Their tendency was to prove intimidation or coercion, something in the nature of duress, a special form of fraud, rather than 'deceit or ordinary fraud. About four years prior to the date of the contract, the plaintiffs had executed to D. C.„T. Davis a contract of sale of the same land or an option to purchase it, at the price of $11.00 an acre. Just what it was, the record fails to show, but its existence and the price named are admitted. Homer Eansbarger procured the second contract at $15.00 per acre in his own name, but for Davis, and the latter was
Although there was some contradicted and rather unsatisfactory evidence of mental weakness on the part of the husband, but not on the part of the wife, the acts complained of are not of the character of those recognized in law as being sufficient to establish duress per minas. There was no threat of a criminal prosecution, personal injury, imprisonment, seizure or detention of goods or injury or destruction of property. The common law rule respecting the nature of the acts capable of producing such fear as will avoid a contract and the standard of resistance, dependent upon the character of the person wrought upon, has undergone a very considerable change, but no authority asserts the sufficiency of a mere threat to bring a civil action to enforce an alleged liability on a contract. On the contrary, the courts almost uniformly say such a threat is not sufficient. Cooley on Torts, p. 968; 9 R. C. L., p. 722, title Duress, sec. 11; Geler v. Wohletz, 79 Kan. 716; McClair v. Wilson, 18 Colo. 82; Hilborn v. Buckman, 78 Me. 482; Parker v. Lancaster, 84 Me. 512; Krider v. Fanning, 74 Ill. App. 230; Dunham v. Griswold, 100 N. Y. 224; Bank v. Logan, 99 Ga. 291; Shelby v. Brownman, 64 Kan. 879; Cohen v. Troy Mfg. Co., 99 Ga. 289. Though a difference between men as regards their powers of resistance, dependent upon the presence or lack of ordinary intelligence and courage, is recognized, and due allowance made for deficiencies, the acts relied upon as having influenced the complainant to contract against his will must come up to the legal standard.' That is a matter of law not dependent upon the facts of the particular case. Lack of ground, reason or cause for the threatened suit is not disclosed. For all that appears in the record, there may have been absolutely good cause of action on the contract.
Our conclusion is that the new contract was a compromise contract and that the evidence, if admissible, is clearly insufficient to prove either duress or fraud on the part of the defendants.
Laches, as matter of defense, is wholly unsustained by anything in the record. Plaintiffs attacked the contract in April, 1906. In September, 1906, Ransbarger and Langhorne appeared. The Tatter attempted to remove the shit into the
Both denial of the relief sought by the plaintiffs and right in the defendants, by virtue of the contract, are inevitable results of the conclusions stated; but the extent of the right of the vendees is a remaining subject of inquiry. Though the wife signed, sealed and acknowledged the contract for conveyance of all the land mentioned and described in the proceedings, except that near Withrow’s Mill, her aversion. to performance by joinder in a deed of conveyance is emphatically disclosed by her.attitude in this suit, as well as by correspondence antedating institution thereof. Now that the validity and binding force of the contract as regards her husband are judicially declared, she may or may not be willing to release her dower, wherefore it becomes necessary to say whether a court of equity can compel her to do so.
That she cannot be required to execute a deed for the two small tracts not included in the contract she signed and acknowledged, is perfectly clear. Campbell v. Beard, 57 W. Va. 501, 511; Milam v. Williams, 73 W. Va. 467; Dunsmore v. Lyle, 87 Va. 391; Pomeroy, Spec. Perf., sec. 460. As an executory contract signed, sealed and acknowledged is not such an instrument as the statute prescribes for relinquishment of inchoate dower, it does not effect a release thereof. At the common law, dower could be released only by levying a fine or suffering a common recovery. 2 Min. Inst. 150; 2 Bl. Com. 137; Williams Beal Prop. 212-13. For this remedy, a statutory one has been substituted, namely, joinder of the wife with the husband, in the execution of a writing purporting to convey title, by signature, seal and acknowledgment in a prescribed form. Code, ch. 73, sees. 4 and 6. Nothing less nor other than such an instrument so executed will suffice. 2 Min. Inst. 151. Cases in which specific performance of contracts executed by both husband and wife, for conveyance of the husband’s property, has been refused, are rare and not easy, to find, since in nearly all of them the agreements were signed by the husband only.
Against this view, it might be urged, with some plausibility, that the language of secs. 4 and 6 of ch. 73, is broad enough to include an executory contract. The paper contemplated is 'described in sec. 4 as “a writing purporting to convey real estate” and as “a deed or other writing.” Section 6 says: “such writing shall operate to convey from the wife her right of dower in the real estate embraced "therein.” The word ‘ ‘ convey, ’ ’ like many others has both a technical and a popular, meaning. Technically, it applies to the legal title to real estate. Popularly, it may apply to the equitable title to real estate or to personal property, and may be read in the sense of assign, sell or transfer. But see. 6 impliedly defines the paper as being a deed or equivalent writing, for it says: “If the deed be executed by a married woman, who at the time of its execution and acknowledgment, is living separate and apart” etc. Any implication arising from the words, “a writing purporting to convey,” that an executory contract passing equitable title was intended, may be answered and rebutted by the fact that deeds are sometimes known by other names and otherwise designated. A paper conveying legal title is often styled an indenture, and frequently named a contract or agreement. "Whatever its name or form may be, it has the effect of a deed, if it passes the legal title. To include all such instruments and avoid quibbles as to legislative intent, dependent upon the name or form of the paper, the statute describes it in the broad terms referred to. It is to be remembered also, that there can be no such thing as an equitable title to inchoate dower. It is not strictly an estate at all. Again, if an executory contract barred dower, there would be no occasion for joinder of the wife in a deed, carrying the contract into effect, the final act of conveyance. These considerations and others stated demonstrate the correctness of Prof. Minor ’s view that the statute does not apply to any executory contract. 2 Min. Inst. 151.
The wife’s acknowledgment of the contract here involved, with her husband, differentiates it from those under consider
Inability of the vendee to obtain perfect and unincumbered title confers upon him right to abandon the contract and no doubt gives him right of recovery of damages against the estate of Crookshanks for breach of the contract. He may also have the alternative right to take such title as can be obtained from the heirs by a decree of specific performance against them. What he may desire to do, under the circumstances, the pleadings do not disclose, wherefore it is unnecessary and improper to enter upon any inquiry as to what rights he may assert in this suit.
For the reasons stated, the decree complained of will be reversed and the cause remanded for such relief as the vendee may be entitled to against the heirs, if any, upon such exercise of his right of election as he may see fit to make in this cause.
Reversed and remanded.