15 W. Va. 867 | W. Va. | 1879
delivered the opinion of the Court:
The demurrer to the bill was properly overruled as it clearly presented a proper case for the. consideration of the court. The special plea in effect was, that neither the contract, promise, agreement, representation nor assur
We will now proceed to the consideration of the merits of the case. The first question that is presented is, whether it was the duty of the defendants to protect the the land from the sale under the trust deed. It was expressly agreed by Hale, when he made the purchase from Curry of the three hundred and seven acres of land, that $2,000.00 of the purchase-money should be paid in cash, and that the residue should be paid in installments of $2,500.00 each, due in one and two years from date respectively, for which Hale executed his two single bills; and that the deeds of trust upon the property- should be paid out of the proceeds of the first of said deferred payments. The $2,000.00 was paid as agreed, and a deed of special warranty delivered to Hale, made at Hale’s request to the defendant, Pliny Fisk, retaining upon the face thereof a lien for the
But it is insisted, that Hale was not the agent of the defendants, Bichey and Perdicaris; and if he was, he
Now with these principles before us what are the rights or obligations of the appellants ? The plaintiff has a decree against them, which he desires enforced; they desire that the decree should be reversed, and'a decree rendered in their favor against the plaintiff for the purchase-money they paid.
John P. Hale in his deposition says, that Pliny Fisk took the title for Hotchkiss, Hale and himself, and for Richey and Perdicaris, whom Fisk introduced into the purchase, and that the property was held by him for them, as follows, Richey and Perdicaris each one-third, and Fisk, Hotchkiss and Hale the remaining third ; that at the time the sale was made, it was known that the two trust liens existed against the land, and that it was arranged that the trust liens should be discharged out of the proceeds of the first note; and that the sale under the trusts were postponed several times to await the payment of the note. On cross-es animation Hale says, he had interviews with relation to the purchase after it was
Mr. Miller says, he was present at the sale to Hale, and that Curry peremptorily refused to make a deed of general warranty, and refused to make the sale on such terms.
Pliny Fisk in his deposition says, that in the fall of 1873, Dr. Hale informed him that Curry owned the property; that it was very desirable on account of a recently discovered vein ofcannel coal on it, and the proximity of the land to the railroad, and Brownstown, that Curry’s title to the land was perfectly good and that he could make a good deed for the property for the sum of $7,000.00; $2,000.00 was to be paid in cash on the delivery of the deed; $2,500.00, in one, and $2,500.00 in two years respectively. After this interview with Hale he, Fisk, explained the matter fully to Richey and Per-dicaris, who each agreed to take a third interest in the property provided the title thereto was good, and the premises free from all encumbrance; ■ that he afterwards, saw Dr. Hale, and informed him “that the said Perdica-ris and Richey would each take one-third interest in the Curry property, and each pay one-third of the' purchase-money.” He says the other third was one-ninth his, and a ninth each to Hotchkiss and Hale. He had no interview with Curry himself. In September, 1873, he was in Dr. Hale’s office in Charleston, when Col.. Miller, a lawyer, was there and stated that he had examined the title to the property, and that it was good; witness then
A. G. Richey says, Dr. Hale had no authority to act for him in the transaction, other than this, "that some time in the fall of 1873 Mr. Pliny Fisk, who was then a director in the Chesapeake and Ohio Railroad Company,on his return from West Virginia informed him that there Avas a small tract of land owned by Curry, containing something over three hundred acres, in which there were valuable Amins of coal and Avhich Avas situated very near to said railroad which could be purchased for $7,000.00; that Dr. Hale, who had great experience in the purchase of real estate, had examined the title, or had had it examined, and that it was all right, and that the party could make a good deed free from alljencum-brances; and thereupon he agreed to pay one-third of the purchase-money, and was to have one-third interest in the property, and Mr. G. A. Perdicaris, who was a near neighbor of his, agreed to pay one-third of the purchase-money and was to have a one-third interest in the property. He never saAV the original deed or a copy thereof. He further says, that Perdicaris and himself each paid to Fisk one-third of the cash payment of $2,000.00, which they understood he should pay over to the owners of the property upon their executing a good and sufficient deed for the premises, free from all encumbrances. He learned of the liens and imperfections in the title in 1874. To the question : "Did you ever request, or authorize any one for you to request, a postponement of the sale of the property under the trust deeds or either of them?” answered: “I have no recollection of making any such request.” He further stated that Mr. Perdicaris, on account of sickness, was unable to be examined as a Avitness in the cause.
The foregoing is the substantial part of the testimony on the subject of the agency of Dr. Hale in the purchase
The charge of fraudulent representations of the plaintiff set up in the answer of the appellants to the bill is wholly unsustained by the evidence.
It is also assigned as error, that the decree directs a
For the foregoing reasons the decree of December 18, 1876, and that of the 28th day of May, 1878, must be affirmed with costs and damages according to law.
Decrees Affirmed.