29 W. Va. 111 | W. Va. | 1886
Bill filed by Joseph M. Ourrey against 1ST. P. Lawler and Milton Ourrey in the Circuit Court of Taylor county, in which the plaintiff avers, that he and defendant, Lawler, had made an agreement for the exchange of lands by which he was to get from Lawler 45 acres at $21.00 per acre, and Lawler was to get from him 2&£ acres at $25.00 per acre and he was to pay Lawler the difference; that each parcel was to be surveyed, the number of acres ascertained and deeds made therefor by each to the other; that on June 26,1876, he conveyed his land to Lawler; that prior to the execution of the deed he had his land surveyed and plat made thereof, by which it appeared to be 28-J- acres, but he is advised there is a mistake of about 3-¿- acres in said survey, and that it contains 32 acres instead of 28-J acres ; that Lawler has refused to make him a good deed for the 45 acres ; but, on the contrary, he has executed and delivered to him a deed which encroaches upon land claimed by and in the possession of
The plaintiff further avers that he is advised he is entitled to have the said 45 acres with an unclouded title, and an abatement on the purchase money for so much thereof as he fails to get, and also a credit for the 3-J- acres, which is in excess of the 28-¿- acres, on the aforesaid judgment. He therefore prays, that an injunction may be granted to restrain the collection of said execution; that an abatement may be made and credit given for what he is entitled to ip. the premises, and for general relief.
The injunction was awarded, and the defendants demurred to and also answered the bill. The defendant, Milton Ouiv rey, expressly disclaims any claim or right to the part of the 45 acres alleged to be in his possession and says that he never refused to give the plaintiff full possession of the same. And the defendant, Lawler, answers, that according to agreement the 45 acre tract was surveyed and the plaintiff was present and expressed his satisfaction as to both the lines and quantity; that after said survey had been made respondent agreed to take the other tract at 28^ acres and about ten days thereafter he and the plaintiff met and settled and exchanged deeds and the plaintiff executed to him the note for $125.00 for the balance due on the difference in the value of said lands and in final adjustment of the whole trade and transaction. He denies that the deed made by him to plaintiff is not a goQd and sufficient deed
The court overruled the demurrer and ordered a survey to ascertain the true quantity of land in each of the aforesaid tracts. The surveyor made the survey a.nd filed his report, showing that according to his survey there was 31-¿ instead of 28-2- acres in the one tract and 43 instead of 45 acres in the other tract. But it appears from the testimony of the surveyor and other depositions filed in the cause, that the alleged deficiency of two acres in the 45 acre tract is the two acres alleged to be in the possession of the defendant, Milton Currey, who both in his answer and deposition disclaims title thereto and states that he has never set up any 'claim to the same or refused to permit the plaintiff to take possession of it.
In regard to the 28£ acres, the proof shows that the plaintiff and the defendant, Milton Currey, were the owners of a tract supposed to be 76^ acres ; that they verbally agreed upon a line of division between them by which the plaintiff' was to get 28f acres and Milton Currey acres; but before any conveyances were made or actual partition took place between them, they each severally sold their interests to the defendant, Lawler, and by their joint deed, dated June 26, 1876, conveyed the said 76¿ acres to Lawler with covenant of general warranty. While the survey made, as above stated, shows that the part assigned to the plaintiff by the said verbal agreement between him and Milton Currey, included 3L} acres, it also shows that the whole tract conveyed to Lawler contains only 73 instead of 76¿ acres, thus showing a deficiency of 3¿ acres instead of an excess. These are the material facts as shown by the record.
By decree of Nov. 19,1885, the court being of opinion that the plaintiff was not entitled to any relief, dissolved the injunction, ascertained the amount of principal, interest and damages to which the defendant, Lawler, was entitled by reason of the judgment enjoined, gave him a decree for that amount and the costs of this suit. From this decree the plaintiff appealed-
In Langdon v. Roane, 6 Ala. 518, it was decided that, “Where the parties have settled their accounts and struck a balance, whieh has been adjusted by cash or with a security for its payment at a future day, it is incumbent upon the party complaining of fraud or mistake, by suit in chancery ^ to allege it specially in his bill, and to establish the allegation by proof; and the agreement by the parties that errors should be corrected, does not relieve the complainant from the onus of proving the mistake.” See Story’s Eq. PL, §251 and 800.
According to these authorities the demurrer to the plaintiff’s bill should have been sustained as there is no allegation in the bill of any concealment, fraud or imposition. In fact it appears from the bill that the most material mistake was in the quantity of the land sold by the plaintiff to the defendant, a fact of which he is presumed to have more knowledge than the defendant. (Crislip v. Cain, 19 W. Va. 438).
It is plain that the plaintiff has failed to establish any deficiency in the 45 acre tract. The party, by whom he avers part of this land is held and claimed, has both in his answer and deposition expressly disclaimed any title or claim thereto. If, therefore, it be conceded that there was an excess of three acres in the 28-|- acre tract for which the plaintiff would be entitled to compensation at $25 per acre, the whole;' amount would be less than $100.00, the sum necessary to give this court jurisdiction. (Neal v. Van Winkle, 24 W. Va. 401). But the plaintiff has not satisfactorily proven that there is any such excess in the 28-J acre tract; and he has certainly failed to show that he is entitled to any compensation for such excess even if it exists.
The proof is conflicting as to whether or not there is any such excess. The surveyor who first ran off the land says,
But the deed in which the plaintiff united to convey this part of the land, conveys 76|- acres with general warranty, while the proof shows that the tract contains in fact but 73 acres. If therefore, it was admitted the part sold by the plaintiff contained 31-J- instead of 28£ acres, and that he would be entitled to compensation from Lawler for the excess if he had conveyed the 28£ acres by a separate deed, still as the record shows that he is prima facie liable to Lawler on his-joint warranty for the deficiency in the 76^ acres, he has failed to establish that he is entitled to compensation for' his álleged excess of three acres in the 28-¡- acre tract. (Crislip v. Cain, 19 W. Va. 438.) He can not recover from Lawler when the record shows prima facie that Lawler has- a counter-claim which exceeds his in amount.
Counsel for the appellant insist in this court for the first time that the certificate of acknowledgment of the wife of Lawler to the deed for the 45 acres is insufficient to relinquish her contingent dower in the land. An inspection of the certificate shows that this is true. It also appears that the acknowledgment of the wife of the plaintiff to the deed for the 76¿ acres has the same defect.
The bill contains no allegation as to the defect in or insufficiency of the wife’s acknowledgment to the said deed for the 45 acres of land, and the plaintiff can, therefore,, claim no relief in this suit on that ground. A plaintiff can no more obtain relief without the proper averments in Ms bill, than he can without proof of such averments when made. The one is as-essential as the other and both must concur or relief can not be granted. (Pusey v. Gardner, 21 W. Va. 469.)
For the aforesaid reasons, I am of opinion that the decree of the circuit court should be affirmed.
AuKIRMED.