21 W. Va. 326 | W. Va. | 1883
announced the opinion of the Court:
In this case, the written contract for the sale of the land under the hands and seals of the parties, is thus worded : “Henry Depue has this day sold to James M. Sergent, a tract of land situated on Island run on the waters of Spring creek, containing five hundred acres more or less, for the sum and consideration of one thousand two hundred dollars cash paid in hand and three thousand three hundred dollars (to be paid in specified times with interest from date).” The deed dated the 17th day of November, 1873, executed by Depue and wife to Sergent for this land, is as follows: “That for and in consideration of four thousand five hundred dollars, twelve hundred dollars of which is in hand paid, and the balance is to be paid at times specified in the deed, the parties of the first part (the grantors) grant, bargain, sell and convey to the party of the second part (grantee), the following described tract, (here follows the full description of the tract of land including its metes and bounds), containing five hundred acres more or less. The parties of the first part hereby expressly retain a vendor’s lien on the tract hereby conveyed for the purchase-money above mentioned. The parties of the first part covenant to warrant generally the property hereby conveyed.”
In Crislip, Guardian, v. Cain, 191 W. Va., p. 526 and 527, it is laid down, that “the decisions in Virginia and elsewhere
There is, as is here stated, no case, when by a written con
It is true that where the words “more or less” were not added to the description of the quantity of the land, the court of appeals of Virginia in the case of Benson v. Humphreys, Law Journ. April, 1881, did hold, where the price was an exact multiple of the quantity, though it was not stated exactly but was qualified by the addition of the words “more or less,” yet, that this was still a contract of sale by the acre. But this case met the express and decided disapproval of our Court, in Crislip, Guardian, v. Cain, 19 W. Va. p. 551 and 552. It is entirely unsustained by reason or authority in Virginia or elsewhere.
Our conclusion therefore is, that in the case before us on the very face of the deed and written contract, the sale was cleaidy a sale in gross of the tract of land for four thousand, five hundred dollars, and not a sale by the acre; and this being the case, of course it could not be proven by any description of parol evidence and much less by the talk of parties to be a sale by the acre. The written contract, clear on its face,
This question, whether this sale made in writing was a sale by the acre or a sale in gross, was a mere question of law to be determined by the court on an inspection of the written contract or deed. And therefore the court ought not to have permitted this allegation, that it was a sale by the acre to have been made in the answer, if it had been excepted to by the plaintiff, as it ought to have been. Misled however by some of the Virginia decisions rendered since the formation of this State, which have been disapproved since by this Court in Crislip, Guardian, v. Cain, 19 W. Va. p. 438, the circuit court erroneously treated this question, whether this sale though in writing, was a sale by the acre or in gross, as a question of fact and, that parol evidence would be received to determine this question; and therefore among other things, it directed its commissioner “to ascertain whether or not said sale was in gross or by the acre.”
The commissioner very properly doubted, whether he could give any weight to parol evidence in determining this question and held it to be a sale in gross, as was evident oti the face of the written contract as well as by the deed; but he was of opinion that the evidence showed, that the grantor Depue, led the grantee Sergent, to believe, that there were five hundred acres or near that amount in the tract sold, and that therefore the defendant had a right to an abatement on account of the deficiency in the tract of laud. As the grantor had expressly alleged in his contract and deed, that there were in this tract of land five hundred acres, more or less, that is about five hundred acres of land, the grantee had a right to regard this as a statement, made on the personal
This conclusion was reached after a full examination of the authorities. See 19 W. Va. from page 485 to 557. But the difficulty in the way of the commissioner acting on this principle, or of the court rendering a decree based qn these principles however correct in themselves is, that there had been no issue made up by the pleadings as to whether the vendee, Sergent, relying on this allegation of the vendor, Depue, that there was about five hundred acres in this tract, had been induced to purchase for four thousand five hundred dollars and was thereby injured, as it contained less. The only issue on this subject had been, whether the sale of this tract of land was a sale in gross-for four thousand five hundred dollars or a sale by the acre at nine dollars per acre. The commissioner had vei’y properly reported, that it was a sale in gross of the entire tract for four thousand five hundred dollars, and not a sale by the acre. And as all the evidence which tended to show, that the vendee, Sergent, had been misled by the positive allegations of the vendor, Depue, as to the quantity of the land and had been thereby injured, was in reference to a matter, which had never been put in issue by the pleadings and had not been referred to the commissioner, he could not properly report upon it nor could the court properly act on his report in reference to this matter; nor could it properly act upouit at all till the pleadings had been amended and this matter properly put in issue.
If it had been put in issue, as we think it ought yet to be permitted to the parties to do, then of course the plaintiff, the vendor, ought to be permitted by any sort of pertinent parol evidence to prove, that the vendee did not in point of fact rely on this statement of the vendor as to the quantity of land, and that he was not thereby deceived nor misled to his injury; and on the other hand the vendee, Sergent, may in-
It is obvious, that while the parol declarations of the vendor, Depue, that the land had been sold by the acre, cannot be used to prove in contradiction of the written contract and deed, that the land was not sold by the gross as a tract for four thousand five hundred dollars, yet, such declarations do tend to show, that the vendee, Sergent, in making the purchase had regard to the number of acres in the tract, and though he ultimately bought the tract in gross, yet, he was induced to do so by this reliance on the statement of the vendor, Depue, in his contract and deed, that the tract contained about five hundred acres. That this evidence is legitimate for such a purpose is stated in Crislip, Guardian, v. Cain, 19 W. Va. p. 548.
The principles, which we have here laid down, are fully discussed in that case, and are sustained by the great weight of authority and reason. It is true there have been decisions in Virginia, since the formation of our State, as well as occasional dicta of judges, which are inconsistent with these principles, but the old decisions in Virginia, as well as the decisions elsewhere, sustain these positions.
In Virginia, in modem times, the judges seem to have lost sight of the well established rule, that parol evidence can not be used to contradict a written contract, and also of the palpable difference between a vendee seeking an abatement for a deficiency, because the sale was by the acre, and the case, in which the vendee seeks such abatement, because he has been misled by the statement of the vendor in his written contract, made positively as to the quantity of laud and presumed to have been made on his knowledge, and relying on this statement, he, the vendee, had to his injury been induced to give the price agreed upon for the tract of land in gross. As an instance of this disregard of established principles and
1 - This reading of this opinion of Judge Staples, leaves on the mind the impression, that these cases had made an exception to the general rule, that no parol evidence can be received to contradict a written contract whenever the question involved was, whether the contract was for the sale of the land in gross or a sale of the land by the acre. An examination of these cases gives no countenance to such a construction. Iu all these cases, the vendees brought bills in equity against the vendors of the land alleging, that they had been misled by the statement of the vendors in their written contracts, as to the quantity of the land contained in the tract sold; and, that it'having been since ascertained Iw the vendees, that there was a deficiency in the quantity, they asked either an abatement from the price or a refunding of a portion of it, when it had all been paid.
These cases as well as Caldwell v. Craig, were reviewed by this Court in Crislip, Guardian, v. Cain, 19 W. Va. from page 485 to 519, and on pages 549, 550 this conclusion is reached: That in these and in other cases, parol evidence was received as a matter of course, not to contradict as Judge Staples seems to think, the written contract for the sale of the laud, but for a very different purpose for which it was obviously legitimate, that is, to prove that the vendee relied on the statement of the vendor as to the quantity of the lands, and was thereby induced to purchase the tract at a certain price, which resulted in his injury.
This parol evidence obviously tended to show, that the vendee had been misled by the vendor to his injury, as to the quantity of land in the tract; and that it tended to establish the fraud of the vendor, which was the real basis of these suits. And as a matter of course this evidence was, as it ought to have been, received to establish this fraud, and not as Judge Staples seems to think, to contradict the written contract. His views in this case of Caldwell v. Craig, 21 Gratt. 132, must be regarded as really only obiter dictum, for the action in this case was on the written contract and the defense was, not that it was a sale by the acre, but that the vendee had been defrauded by the misrepresentations of the quantity of land in the tract, and therefore any parol evidence, which tended to establish this fraud, could be introduced. The parol evidence then in that case, was not introduced to contradict the written contract as Judge Staples seems to think, but for a far different purpose, that is, to establish a fraud, which was the real question in issue between the parties in that suit. Judge Staples in his opinion, seems to speak as if the real question in issue in that case was, whether the land was sold in gross or by the acre. Had this been true, clearly this parol evidence was not admissible; but the issue being, whether or not the vendor had defrauded the vendee, this parol evidence was very properly admitted, and no established rule of law was thereby violated.
The grounds on which such parol evidence as to its having
This deception with injury to the vendee, is in law a fraud upon him, though the vendor honestly believed, that, there was the quantity named in the deed in the tract sold in gross. For he can not say positively in his deed or contract, that there is about tlii's quantity unless it be true, and merely because he believes it to be true, for in speaking thus positively he induces the vendee to believe, that he has personal knowledge of the truth of what he says; and if it turns out that he has no such knowledge, but
Our conclusion is therefore, that in this case, as the pleadings had made no issue upon the question, whether or no the vendee, Sorgeut, had been misled by the vendor, Depue, to his injury, and induced to agree to give the four thousand five hundred dollars for the tract of land because of the vendor’s assurance, that it contained about five hundred acres; all evidence tending to prove such fraud was inadmissible i and that all the evidence tending to show, that the vendor, Depue, had stated that this land was sold at nine dollars per acre, and that it contained five hundred acres, was of this character, and was therefore inadmissible upon the pleadings in the case, because it was parol evidence tending to contradict a written contract. But, if the issue had been such as above indicated, whether or no there was fraud in this misrepresentation of the quantity, then all this evidence would have been pertinent and proper.
The circuit court was, as was this Court when it decided this case formerly, misled doubtless by this opinion of Judge Staples and by these modern Virginia decisions, which have unfortunatatelv confounded cases of tort resulting from misrepresentation of vendors, with cases of contracts for the sale of lands in gross or by the acre. After mature consideration, we regard such confusion as especially dangerous; nor is the mischief any less because in some eases the same results will be reached, whether the redress is sought because of the fraud of the vendor, or because the sale was by the acre and not in gross. For while this confounding of these matters in some cases, produces no injurious results, yet, in others it produces gross injustice and wrong. The basis of the relief asked being entirely different, it is of course necessary, that this basis should always be kept in view even though when it is determined in either case, that the vendee is entitled to redress, the measure of his relief may be the same.
In the case before as it is proven, that the vendee, Sergent, was misled to his injury by the nositive statement of the ven
But if the new evidence, which Depue would have a right to introduce should prove, that Sergent did not rely on his statement that this tract contained about five hundred acres, but upon his own knowledge, which was equal or inferior to that of Depue’s; or if it proves, that Sergent was in point of fact not induced to give four thousand five hundred dollars for this land because he believed it to contain five hundred acres, but would have given it though he did not know how man}? acres it contained, the quantity of land in the tract being to him a matter of indifference, then on such proof, Depue would be entitled to demand the whole price four thousand five hundred dollars, less what had been actually paid, and Sergent would be entitled to no abatement for the deficiency in the quantity.
Can we now permit Sergent to file another answer in lieu of that which he has filed in order to put in issue the real
These are the general principles, which formerly governed the courts in permitting answers to be changed, as is laid down in Smith v. Babcock et al., 3 Sumn. 583. But upon the hearing of a cause, the court may grant the same indulgence to a defendent as it would to a plaintiff. If it has appeared, that the defendant has not put in issue facts, which he ought to have put in, and which must necessarily be in issue to enable the court to determine the merits of the case, he will be allowed to amend his answer for the purpose of stating these facts. See Story’s Equity Pleading section 902.
But the courts have been always very cautious in permitting such amendments at the hearing. As the bill in this case was not verified, the defendant was not bound to verify his answer by affidavit, and if verified, it would not have been evidence under the provisions of our Code. See Code
It is clear however from the evidence in this case, that substantial justice does require, that the answer of the defendant should be withdrawn or taken from the file, and a new answer filed putting in issue facts, which he ought to have put in issue and which must necessarily be in issue, before the court could determine the real merits of the cause. For the circuit court has determined that such facts exist in this case, apparently from the evidence, and this Court in this respect, has concurred with the circuit court.
We are therefore of opinion, that instead of making a decree in the cause on March 18, 1880, the circuit court ought to have permitted the defendant to withdraw his answer and the amended and suplemental answer from the files, and to file a new answer, and that this should still be allowed, alleging, that by the deed of the plaintff and by the written contract between the plaintiff and the defendant, of date October 29, 1873, a copy of which should be filed with this contract, the plaintiff conveyed and agreed to convey said tract of land to the defendant for the sum of four thousand five hundred dollars; that in said deed and agreement he represented, that there was in said tract of land five hundred acres, more or íess, meaning thereby about five hundred acres; that relying on this representation of the quantity of land in said tract, the defendant, agreed to pay for it four thousand five hundred dollars, each of the parties valuing said land at about nine dollars per acre, but, that it has been since ascertained, that there was a deficiency in the said tract of land to the extent of forty-eight acres, two roods and twenty-three poles, which at the average price of said land
To this answer, the plaintiff should not be permitted to file a reply in writing or a special reply, but only a general replication; for these matters in this answer, are not new matters constituting a claim for affirmative, relief, such as are referred to in section 35 of Code of West Virginia, page 604, but are purely and strictly matters of defense, which could not formerly have been claimed in a cross-bill.
When this cause is remanded to said circuit court, and this new answer filed and issue taken on it, the evidence which has already been taken without objection by either party, may be read as evidence on this new issue; but either party, who desire it, should be afforded the opportunity of taking any additional evidence on this new issue. And the court should determine the question, whether the defendant is entitled to any abatement upon the principles laid down by this Court in the case of Crislip, Guardian, v. Cain, 19 W. Va. p. 458. If it should on the evidence be of opinion, that the defendant was entitled to an abatement, it should allow him an abatement for a deficiency of forty-eight acres, two roods and twenty-three poles at the rate of nine dollars per acre, the average price of said tract of land; this being already ascertained to be the correct quantity of the deficiency by the circuit court, and which this Court on the evidence, is of opinion, is the correct quantity.
The circuit court in its decree of March 18, 1880, allowed this abatement at the rate of five dollars per acre. This was not we think the proper price to be put on this deficiency, if the defendant is entitled to an abatement therefor. The general rule in the case of an abatement on account of deficiency in the quantity of land sold, is to allow for the deficiency the average price of the whole land. See Hull v. Cunningham, 1 Munf. 330; Nelson v. Mathews, 2 H. & M. 164; Lowther v. The Commonwealth, 1 H. & M. 202; Blessings, adm’r, v. Beatty, 1 Rob. 287; Crawford et als. v. McDaniel, 1 Rob.
Though there are sometimes exceptions made for particular reasons to this general rule, yet, we see nothing in the facts of this case to justify a departure from this general rule. The tract sold was to a large extent unimproved; less than’ one hundred acres of it being improved, and there being on this improved part a small house.
When the case is remanded, the circuit court should strike from the records and file all the replies in writing of the plaintiffs, as well as the amended and supplemental answers of the defendant, as none of these ought to have been permitted to be filed. The amount of credits, which were allowed by the decree of March 18, 1880, as payments up to that time, should be again allowed and no new evidence should be permitted either as to the quantity of land in the tract, or as to the amount of the payments up to March 18, 1880, as the parties have been heard on these points and their questions have been decided by the circuit court, and its decision on these questions, is we think, sustained by the evidence.
Although this decree of March 18, 1880, for the reasons we have assigned must be reversed yet, the appellant, Ser-gent, must pay the costs of the proceedings in this Court, as the appellee is the party substantially prevailing in this Court. For, in our judgment, the circuit court should have rendered no decree on March 18, 1880, but should have stricken out the special replications of the plaintiff and the amended and supplemental answer of the defendant, and should have permitted him to withdraw from the file his answer and to have filed such a new answer as we have indicated. And when issue had been joined on it and additional evidence taken, it might have been, and it may yet be, that the appellant, the defendant, will ultimately be held to be entitled to no abatement. This may not be very probable, but of this we cannot judge. And it must therefore bo held, that the decree of March 18, 1882, was prejudicial to the plaintiff, the appellee, it being prematurely made and probably it might be found, that he is entitled to a decree against the appellant for a larger amount. The whole difix-
The decree of March 18, 1880, of the circuit court of the county of Boane, must be- reversed, set aside and annulled as prematurely made; and the appellee, Henry Depue, as the party substantially prevailing, must recover of the appellant, J. M. Sergent, his costs in this Court expended; and this cause is remanded to the circuit court or Boane county with instructions, that it shall be further proceeded with in the manner indicated and upon the principles laid down in this opinion, and further according to the principles governing courts of equity.
Decree Reversed. Cause Remanded.