43 W. Va. 17 | W. Va. | 1896
Lead Opinion
This is a chancery suit, instituted by James W. Davis against II. J\i. Mettle et al, in the Circuit Court of Fayette county. The facts of the case are as follows: Both parties claim under Marah Mtuart. In September, 1887, Seth Huso purchased from Sarah Stuart, by written agreement, out of a- large tract “fifty acres of land, on New river, including the upper improvement, that John Scott has in possession.” Huso sold Settle this fifty acres in 1845 by writing, providing that, when the purchase- money should be paid, IIuse should convey or cause to be conveyed, to Mettle. The agreement between Huse and Mtuart was a
In the suit of A. A. Low against ¡Settle, this Court held that ¡Samuel Price had erroneously executed his power as executor of the will of Sarah Stuart. Such being the case, having once executed the power, though erroneously, he never could correct it, as the deed had been delivered, and admitted to record, and the only way his mistake could be corrected was by the interference of a courPof equity, and then only as against those having full notice thereof. When the deed passed out of his hands into the hands of Settle, Low already had his deed, and he knew just where the Huso land lay, that Settle had in actual possession. Hence he made his purchase with full knowledge of Settle’s rights as to said land, but when lie discovered afterwards that the Price deed did not cover the land in controversey, in February 1881, he began his ejectment proceedings. Settle, being in full possession of the land at this time, and until he surrendered possession, had the right to file his bill in equity to reform his deed in accord-
There is still a further ground for equitable interposition. When Davis acquired his right from Mettle, he acquired along with it the right to have the Price, deed so reformed as to cover the land in dispute, to at least the extent of his moiety thereof, except as against purchasers for value, without notice. The tenant, by its deed, has acquired thirty acres of land, which properly belonged to Low, and which Mettle disclaimed, and has never owned, though the legal title was in him by clear misunderstanding. Mettle wanted to surrender this land, and hold the thirty acres, which rightly belonged to him. But Low wanted to make the trade because the Huse thirty acres was the more desirable. Now, the tenant having purchased with full notice of the rights of Mettle and Davis, although it has acquired the right, if acting in good faith, to have the Price deed reformed so as to cover the Huse thirty acres, but as it has leased from Low this same thirty acres (on what terms is not disclosed), it is willing to yield its rights if not legally compelled to, and let Low hold the same under his deed. Thus are they together in possession of the land to which plaintiff is entitled, with title papers fully covering the same, while the plaintiff has a superior equitable title, of which they
Equity jurisdiction is so plain on the grounds aforesaid that it is hardly necessary to discuss the question .of possession. But even on this question, from the pleadings and proofs, the law is clearly with the plaintiff. Oo-ten-ancy is a question of possession entirely, without regard to title. The law presumes that possession is under title papers, unless such presumption is destroyed by the facts and circumstances established to exist by the evidence. Mettle owned the land in controversy by color of title, rendered indefeasible by actual adversary possession as to Low for a period of more than ten years, acquiesced in by those under whom he claimed. The purchase money was fully paid, and actual occupancy, even if flic Huso title bond was indefinite, satisfied the statute of frauds, and estopped his vendors from denying his right to the land so held by him. In addition thereto, they had it platted off to him in making) the partition, and under which Low purchased. For some reason not thoroughly apparent, Brice made him a deed for fifty acres, including therein thirty acres of land which belonged to Mrs. Peyton (after-wards Low), and not including the land which he was actually occupying, and on which his house and improvements
Champerty is a species of maintenance, and, while maintenance has not been directly abolished by statutory enactment, it has been so indirectly encroached upon as to render it almost obsolete. At common law, maintenance is said to be an officious intermedliug in a suit that in no way belongs to the medler, and signifies an unlawful taking in hand, or upholding oil quarrels or sides, to the-disturbance or hindrance of common right. Champerty is the unlawful maintenance of a. suit in consideration of a part of the matter in controversy. The reason of the law was that maintenance tended to suppress justice and truth, work delay, and stir up strife, and all maintenance of a suit by a stranger was at common law unlawful, and was considered mahnu in .sc, as it permitted the wealthy to oppress the poor, and rob them of their small inheritances. No mere cho.se in action was assignable. Now, almost any cause of action is transferable; and attorneys are permitted to take any case on a contingent fee, and nothing can be considered maintenance the end whereof is justice, but only such conduct as is malicious or oppressive in its nature. An attorney who takes advantage of the circumstances of
Settle, when he-sold, had possession under adverse pos-sessory title superior to Low’s paper title. When the tenant entered by reason of its purchase, in behalf of its landlord, it entered into the possession of Hattie under his possessory title; and thereby both the tenant and landlord,
The decree will be reversed in so far as it adjudges Harrison Settle one-half the land in controversy, and amended so as to allot the same to the heirs of A. A. Low and the Rush Run Coal <fc Hoke Company, and in all other respects affirmed, with costs to the appellee Davis, as the party .substantially prevailing.
Dissenting Opinion
dimnrf'nuj:
The first point made by appellant’s counsel is that equity has no jurisdiction, as the claim of Davis to the land and that of Low and the coal company are adversary and hostile to each other, not in privity, and that, where such is the case, even in cases of partition chancery has no jurisdiction; that before the passage of section 1, chapter 124, Code 1849, as established in such cases as Straughan v. Wright, 4 Rand. 495, equity co.uld not grant partition where the legal title was not clear and conceded; and that that statute did not so far modify that rule as to allow under the guise of a bill for partition, a suit in equity to try-adverse titles, but only in cases where the controversy was limited to the parties claiming as joint tenants, tenants in common, or co-parceners, and concerning only the common title under which all held ; and upon this question the brief of counsel for appellant contains an able and valuable collation and discussion of Virginia and West Virginia cases.
Dp to the enactment of the Virginia Code of 1849, it was. settled law that partition was a matter of right in equity, if the plaintiff’s title was admitted or clear; but if denied, or dependent on doubtful questions of law or fact,
Even under the construction of the statute here given, it-may be said, not without some force, that the said clause of the constitution is broken when we bring into equity a party, and try his legal right to a share in the farm by a chancellor, instead of a jury, although he did derive his right from one who claimed that share as co-parcener. He says he claims a freehold estate, in land, and if there is any instance where, next to a trial ofjife or liberty, a man is entitled to a jury, it is where one is to be deprived of his land, — his home. Confessedly, before the statute, equity could not try his title. He could be deprived of his freehold only by a judgment, of his peers;
The well settled principal is that as equity proceeds without jury, where any subject was within its jurisdiction at- the time of the adoption of the constitution giving jury right, the guaranty of jury trial in the constitution will not apply to equity cases. To do this would emasculate the vigor and utility of equity jurisdiction. The makers of the constitution, well aware that equity exercised an immense jurisdiction without jury,' not only did not
Then, construing the .statute as above indicated, has this case shelter in a court of equity under the head of partition?' I do not think it has. True, as against. Settle, Davis shows right to partition ; hut he brings in Low and the coal company. The hill does show that the plaintiff was entitled to half the tract conveyed by (Settle to him, leaving Mettle owner of the other, and states in a very obscure way • that Low and Mettle claim an interest, and that the coal company claims an undivided half, and then states that they may he entitled to Mettle’s half, and calls on them to say. I suppose, as deriving this half from Mettle, they would he tenants in common with Davis, and properly in court for partition, and any kind of controversy as to the right of Low and the company could he settled. Davis would have right to have a partition binding on all, and not a partition binding only on Mettle. So far Low and the company are properly parties. But the answer of the coal company repudiates ownership in itself of the land in which Davis has an interest, and claims only as tenant of Low. This ends the matter of partition as to the company, based on the idea that it is co-owner with Davis by right derived from Mettle by said deed. The tract conveyed by Mettle to the company is a different tract from that claimed by Davis. Davis’ bill so asserts. Next as to Low : Low’s answer repudiates aiiv ownership derived under Mettle, and sets up a right derived by deed from the trustees of Agnes Peyton and Mrs. P. This right-in Low gives no part ownership in the Mettle land to enable us to say Low owned part, and' Davis part, but, if anything, gives Low the entirety. It has no kinship with Davis’ claim further than the two claims are to land originally vested in Marah Mtuart, she having sold fifty acres to Huse, and Huse to Mettle, and Mettle half of it to Davis; while a large tract came to Mrs. Peyton, as child of Marah Mtuart, and was by her conveyed entirely to Low. It is a hostle claim. There is not a shadow of community of interest between Low and Davis. In truth, the plaintiff’s amended bill shows an adverse title. It says that any pretense of claim by the coal company or Low, under
Though-jurisdiction cannot he sustained under partition, can it be sustained under that head of equity jurisdiction exercised to remove cloud over title? The bill is not framed with that view. It is sought to be sustained as a suit for partition, praying only for that, although in all its features and in its entire cast it sets up two hostile claims of title. It does not set up matter to bring it under the jusisdiction of equity to remove cloud from title to realty.' It lacks an allegation indispensable to bring it under this head. It does not say that the plaintiff is in possession, and ask the court to remove a cloud, but says the defendant company is in actual possession. Equity will not try conflicting titles to land, unless it. is incidental in administering relief, under some known head of equity jurisdiction; and, to bring a suit under the known head of jurisdiction to remove cloud from title, the plaintiff must be in possession, for, if not in possession, he may sue at law in ejectment. That equity will not settle title or bounds of land between adverse claimants is settled by
At one time I thought that as the hill alleged no legal title in the plaintiff, and, not being able to maintain ejectment on a merely equitable title, he could sustain this suit as one to remove cloud, though not in possession, being led to that opinion by note to section 1899, 8 Pom. Eq. Jur., and note to Helden v. Helden (Md.) 45 Am. St. 376, (31 Atl. 506) ; but more careful investigation has satisfied me that the law is not there correctly stated. The cases they cite will not support their broad statement, though a good many do contain points in their syllabi that are broad and are well calculated to mislead; but, when scrutinized; the cases will be found to be such as to justify equity jurisdiction by some feature falling under known and acknowledged grounds of jurisdiction, as to enforce a trust for title, or cancel a deed procured by fraud, or the like, some equity subsisting between the parties calling for relief in chancery, but that is not the jurisdiction based on the separate, distinct grounds spoken of above, —that is, removal of cloud over title. As I stated above, chancery will not entertain a suit to settle title or bounds of land, unless it is incidental in administering relief under some known head of jurisdiction. But the exception is as well fixed as the rule. Where there-is any equity between the parties to give jurisdiction under a legitimate head, it will try land titles, as it will other matters falling in its way in exercising its legitimate jurisdiction. That is nothing but the old rule stated in Cresap v. Kemble, 26 W. Va. 603, “that equity has no jurisdiction to settle title or boundary of land when the party has no equity against the party holding the land.” Lange v. Jones, 5 Leigh, 192. He must have an equity against the adverse claimant; no one else will do. Stuart v. Coalter, 4 Rand. (Va.) 79. Plow, then, can one holding only equitable title get relief against one holding adverse claim in possession? Pie must get legal title, or sue in the name of those under whom he claims having legal title. Davis had adequate relief by ejectment. He could sue in the name of the heirs of Huse’s vendors. I think he could sue in his own name. Why? If the deed from the Peytons to Low did not exclude the Huse land, while it is true the statute did not
I fail to see how the coal company’s purchase of Settle can operate to make Low a co-owner with Davis, or give them a common seisin. The coal company was only Low’s tenant, not his agent to do this act. Iii this act it was acting only for itself, so far as we know. How is it possible that its purchase of Settle could operate to suddenly turn Low from a hostile claimant against both Settle and Davis into a co-owner with Davis, so as to give equity jurisdiction? If a tenant, can thus affect his landlord, merely because he is tenant, without proof of agency so to do, the rights of the landlord are at the mercy of the tenant. We should not presume an authority of such gravity. To do this is to make Low guilty of fraud .in purchasing of Mettle with notice of Davis’ rights, and so make Low a trustee,' as if he held title for Davis, when Mettle passed no title to Low, and on this theory erect equity jurisdiction. The coal company, taking title, if it had acquired this land from Mettle, could lie said to be trustee for Davis, and title be followed into its hands; but why make a trustee of Low when Mettle passed no title to him to justify jurisdiction in equity to follow title into his hands? He has nothing to follow. Mhall we assume— merely assume — that the coal company really purchased for Low’s benefit? It amounts to this: You are a hostile claimant of land, and your adversary'sells half to a third party; and then a tenant on your land buys for himself the whole land from your adversary, with notice of his sale to the third party. Instantly, from the mere force of
If there were no jurisdiction in equity, it would be proper to decide, nothing else; but as the majority holds there is, I shall refer to other points raised in the case, in which I understand other members of the Court to concur.
A second point made by appellant’s counsel is that the contract between Stuart and Huso is void for uncertainty. But it has beén executed and purged of uncertainty by conveyance from Settle, to Davis; and a stranger to it cannot set up its uncertainty. And Low and the coal company, under his right, do not own the land within it, as it was settled in the case of Low v. Settle, 32 W. Va. 600, (9 S. E. 922), that the deed from Agnes Peyton to Low did not include the land within that contract. The opinion in that case so states, and because that deed did not include this land, and thus Low had not legal title, a verdict, and judgment in his favor were set aside; and so that matter was directly adjudicated, as is logically and unavoidably deducible from the judgment rendered by this Court.
A third point made by appellant’s counsel is that the agreement between Davis and ¡Settle is void for champerty. I think it is champertous. But who sets up its vice? The coal company, an utter stranger to it. While Davis could not enforce it against Settle, if Settle resisted, a stranger
A fourth point made by appellant’s counsel is that neither the personal nor real representatives of Harah Stuart or Hetli Huse are parties. What matters this to the coal company or Low? They did not own the land to be affected by any back purchase money or want of legal title. No specific performance was being enforced against, it, to enable it to call for parties representing the purchase money or title. It was not a suit for specific performance. It was a suit to divide the land between Davis and Hettle, and the coal company was made a party, as setting up a title to the whole under Hettle, or in some way. I do not see how the matter of whether Hettle had paid purchase money to Huse, or Huse to Htuart, or whether legal title was yet in Htuart’s heirs, was material to the coal company, from its relation to the case.
Another point made by counsel against the decree is its denial of compensation to the coal company for improvements put on the property. I need here consider this point only as to Davis. Can he be charged with improvements? He cannot. There is no evidence as to improvements. The answer asserts that they were made, and of the value of thirty thousand dollars, but the replication traverses this and thus calls for proof. There is an amended bill, which admits the making of improvements, but for which we could not say there were any. When put there we do not know; but certainly after Davis’ contract had been recorded,' after the coal .company’s agent had actual knowledge of it, after this Court had determined that Low, the landlord of the company, had no title to the
Another point is that Mettle and Davis both are estopped from claim by the fact that Settle, under his right to the land sold by Sarah Stuart to Huse, and by Huse to Settle, had .surveyed olf a certain boundary of fifty acres, and accepted a deed from Mrs. Stuart’s executor in satisfaction of his right under the Huse contract, and now cannot claim another tract in addition. We decided in Low v. Settle that such deed was not an estoppel upon Settle, for want of power in the executor to convey, and danger of the heirs of Mrs. Stuart avoiding the deed, and thus want of mutuality. Tf this be not rex judicata, yet the estoppel would operate in favor of the heirs, not Low, as Low has no claim to this land. The coal company’s right arose long after this conduct of Settle, alleged as an estoppel in pais.
The fifth point made against the decree is that exceptions to depositions were overruled. The exceptions are that, no sufficient notice of time and place was given. It is said the state in which Greenbrier and Fayette counties are is not given. Judicial notice is taken that they are in West Virginia. A party ought to be held to know that. I think the service of one notice as to the coal company not good; but the depositions only go to prove that the land involved in this suit is the same involved in the ejectment of Low v. Settle, and some other matters, alleged in the bill, not denied in the answers, and otherwise than by the depositions appearing. If the depositions be stricken from the record, it would not alter the case. The coal company is the only exceptant. No matter to it that notice was not
Jieversed in Part and Modified.