4 W. Va. 571 | W. Va. | 1871
The appellant, Henry G. Davis, by bis counsel, insists:
1st. That the demurrer to the original bill should have been sustained, because of improper joinder of Wilson and others, with him.
2d. That the original bill should have been dismissed at the costs of complainant, Henry, because of the false and fraudulent representations made by him in relation to the land sold to said Davis.
3d. That the decree in the cross-bill should have cancelled the contract of sale of July 19th, 1865, with costs, and' not have dismissed the bill.
4th. That the court ought to have directed an issue, to try by jury, the question of fraud, and whether said Davis had discovered the fraud prior to the 19th July, 1865.
The appellee, Henry, by his counsel; insists :
1st. That the decree is right, both in' giving the relief prayed for in the original bill, andfiii dismissing the cross-bill, with costs. :
2d. That the evidence offered by Davis, to prove false and fraudulent representations on' the part of Henry, to procure the contract of 9th March, 1865, is insufficient to establish the charge made against him, and that the evidence tending to prove such representations is unworthy of credit.
3rd. That the charge of fraud in the contract of March 9th, 1865, is not supported by the proof in the cause.
4th. That if there had been really any question between Davis and Henry, about representations as to the presence of asphaltum coal on the land sold, previously to the second con tract,-yet when that contract was made on the 19th July, 1865, it was fully ascertained by Davis that it was not there,
5th. That said contract was made with reference to mining for oil, the original object of pursuit.
6th. That if there be anything in the evidence, tending to raise the impression of such representation made by Henry on the order of trade and dealings, as ought to be construed^by the court to affect the first contract of March 9th, 1865, with fraud, yet that such fraud, if any, was already “condoned” by the second contract of the 19th July, 1865, for a valuable consideration, to wit: an abatement of 8,000 dollars, in eash, of the purchase money, and 15,000 dollars of stock in the company, which Davis was himself to form, for the purpose of working this and adjoining lands.
7th. That it is too late for Davis now to call in question the validity of the contract of July 19th, 1865.
It appears, on inspection of the original bill, that Henry G. Davis, Benjamin Wilson, Benjamin F. Martin, and Tal-iaferro K. Knight, are made defendants. Davis was the principal defendant, on'account of privity in the contract which Henry seeks the specific execution of; Wilson was made a party, because Henry had assigned to him 800 dollars of the •money he was to receive from Davis on the contract, “and the benefit of the said contract, to the extent of the said •sum so assigned,” and said Wilson had forbidden Davis from paying the same to said Henry.; Martin was made a party because he had in his possession, as the mutual friend ■of Henry and Davis, the contract of March 9th, 1865, and July 19th, 1865, which Henry prayed he should be required to produce, and plaee the same within the control and at the disposal of the eourt; Knight was made a party because he held, as an escrow, pursuant to the contract of July 19th, 1865, the deed which Henry and wife had made, conveying the land to Davis.
Justice Story, in his admirable work on Equity Pleadings, | 226, b., says, “in the case of a common bill for the spe
It is also a well settled principle, in equity, that the person having the beneficial interest, is a necessary party, which illustrates “the ordinary doctrine that, the real parties in interest shall be brought before the court, whenever their interests may be affected.” Story’s Eq. Pl., §§ 153, 154, and notes.
As to Martin and Knight, it is true, they were in one sense simply witnesses, and had they occupied only that relationship, they would not have béen proper parties, but they stood in a nearer relationship — a quasi trusteeship. Martin had been constituted, as the mutual friend of both Henry and Davis, custodian of both contracts; Knight held as an escrow, the deed which Henry and wife had made to Davis. It was, therefore, their duty to act disinterestedly between Henry and Davis, and in good faith execute impartially the trust confided in them. The bill charged as follows: that “Martin holds said paper-writing, the sole evidence of said contract, in his possession, but gives out in speeches, that he considers the said Davis is solely interested in the same, and that he will surrender the same to
The bill also prayed that said Martin should be required to produce said contracts, and place them within the control, and at the disposal of, the court, and that said Knight be required to produce the deed, so as to be at the disposal of the court. On demurrer, the allegations of the bill are taken as true, and the bill thus showing such inequitable conduct, and the necessity for the production of the contracts and the deed, as proper exhibits in the cause, so essential to the final adjudication thereof, whether the decree should be specific performance or rescission, it seems to me, that viewed from this stand-point, there is such a special case in this instance as equity will embrace, and should sanction the joinder of defendants. For these reasons, and upon the principles laid down in the standard works on equity pleadings, I think there is not such a misjoinder of defendants, in this case, as would have justified the court in allowing the demurrer, and that the court did right in overruling it. Story’s Equity Pleadings, sections 221, 229; Mitf. Eq. Pl., side page 162.
Neither Wilson, Martin or Knight demurred; Davis was not the proper person to demur for misjoinder of defendants, and the demurrer was properly overruled for that reason also. Story’s Eq. PL, § 544.
This brings us to the case as it appears on the contracts, and evidence of the manner in which they were obtained. It is argued by appellant that his vendor, the plaintiff in the original bill, by device and false representations, took an uneonscieutious advantage of him in procuring the contracts; in short, practised positive, actual fraud. If that be true, then the court erred in enforcing the contract, because
Without going into detail, it seems to me the weight of the evidence is against Henry; that he obtained the first contract from Davis through artifice and misrepresentation, is, from the depositions, unquestionable. That it was such a fraud as could not have been detected by any reasonable diligence on the part of Davis, a ruse so studied, and an imposition, though gross, yet so well concealed, was well calculated to deceive the most vigilant and discreet, especially at a time when the wonderful mineral developments of the country were so exciting'.
It is clear that Henry, before the making of said contract, had represented, not only to Davis, but to others, that in sinking the well on the land, he had struck, at the depth of 108 or 110 feet, a vein of asphaltum coal of eight or nine feet in thickness. He even exhibited specimens of it to different parties; sent samples of it to E. W. Lowther, who showed it to Davis; and when Davis and Lowther visited the well, they found small pieces of the coal, similar to the said specimens, scattered about the well, mixed with the borings.
Henry then told them the asphaltum pieces had been “taken out of the well, and that they had struck a vein of the coal at about 108 or 110 feet below the surface, of nine feet in thickness.” At the same time he stated to Davis and Lowther, that “they had a show of oil in the well.” This evidence comes direct home to Henry; and upon those representations, thus deliberately made by Henry, Davis
But it is claimed that Davis has abandoned his right to abrogate the contract, by again bringing himself into contact with Henry, by the modified contract of July 19th, 1865. In the case of Morse v. Royal, 12 Vesey, jr., 371, Lord Erskine meets this position directly. He says: “As to the doctrine of confirmation, it stands upon several authorities: where a man having been defrauded, with complete knowledge, chooses to come again in contact with the person who de-' frauded him, abandons his right to abrogate the contract, and enters into a plain, distinct transaction of confirmation. But when the original fraud is clearly established by circumstances, not liable to doubt, a confirmation of such a transaction is so inconsistent with justice, so unnatural, so likely to be connected with fraud, that it ought to be watched with the utmost strictness and to stand only upon the clearest evidence; as an act done with all the deliberation that ought to attend a transaction, the effect of which is to ratify that which, in justice, ought never to have taken place.” The same doctrine is affirmed in Sugden on Vendors, pp. 287, 288.
It seems to me Loi’d Erskine has stated the true princi-
Taking this view of the case, I do not deem it necessary to discuss more fully the points raised by the several counsel ; and although I am inclined to the opinion, that the second contract cannot be considered as an abandonment of the right to abrogate, or as a distinct transaction of confirmation, and that upon the evidence, the court below would have perhaps acted properly, had it decreed a rescission of the contract; yet, as the depositions are not entirely satisfactory, but vague and indefinite as to the fact, whether Davis was fully informed at the time of making the second contract, that he had been defrauded by Henry, and that
Therefore, as the evidence is not sufficient to sustain the decree of the court below, I am of opinion that, the same should be reversed, with costs, and remanded to the court below for further proceedings to be had therein.
Decree reversed,