82 W. Va. 535 | W. Va. | 1918
The bill is here by certification under §1 of chapter 135 of the Code upon its sufficiency challenged by demurrer, overruled, on two grounds. The object sought is the compulsion of the defendant, Gertrude McGann Rafferty, to comply with tvhat purports to be a written memorandum signed by her of a contract to purchase lots 3, 2, 9 and 10 in a subdivision of real estate in Weston, W. Va., sold at public auction December 2, 1916, and of which the plaintiff, “Rt. Rev. P. J. Don-hue, Bishop of Wheeling”, alleges that at the time of the sale he was absolute owner in fee.
If either ground relied on by the demurrant is well taken the ruling certified is erroneous. These grounds are: (1) That the bill does not state a cause entitling plaintiff to the relief he seeks; (2) the legal insufficiency of the contract and its unenforceability for that reason. The first ground assigned, when amplified, in substance and effect goes to the extent of denying the truth of the allegation of title and consequently the authority of the plaintiff to sell the land and execute a valid conveyance of the'lots sold to the defendant. The denial of the title rests upon the broad proposition that title to the property never vested in the plaintiff in fee simple but in him only in trust for the use and bene
Nor can they be permitted to effectuate such denial though read in conjunction with the Exhibit ‘B’ of the bill. The statements contained in that exhibit, relied on to counteract the express allegations of title, are: “Since the erection of the magnificent new St. Patrick’s Church, the members have decided to sell their old site, consisting of the former church, old rectory and several highly desirable building lots. Appreciating the fact that it was better to close out in a short time than to sell occasionally a house and lot, they have decided to offer the property at public auction and sell to the highest bidder. The property has been subdivided and each piece will be offered separately on Saturday afternoon, De•cember 2nd, beginning at two o’clock. * * * There is nothing on the real estate market today in Weston as desirable, and it is not often that one has the opportunity to buy such property at their own price, for this is just what the auction
An exhibit filed with a pleading becomes a part of it with like effect as if bodily incorporated into it. If there be inconsistency or discrepancy as to dates or as to the cause relied on for relief between the allegations of the bill, in support of which the exhibit is filed, and the exhibit, the latter will be accorded great, sometimes controlling, influence upon demurrer or upon the merits, as in some of our decisions. Richardson v. Ebert, 61 W. Va. 523; Board of Education v. Berry, 62 W. Va. 433. But none of our cases or those of other jurisdictions have gone so far as to say that an exhibit offered for one purpose shall effectual^ set at naught other positive and unequivocal allegations of a pleading. The exhibit in part quoted was filed not to sustain the averment of title but to show the terms of sale. Besides, if it had been embodied in the bill and therefore literally a part of it, the demurrer would for the purposes thereof have admitted the allegations as to title and terms of payment. Which then shall be accepted as true upon the questions raised by the challenge if there is such a discrepancy? Shall the language quoted from the notice of sale be allowed to outweigh the assertion of title to the lots sold when the exhibit relates to an entirely different matter, or shall each allegation be limited and restricted to that to which each of them is addressed? There seems to be but one justifiable answer to this interrogatory. In Green v. Page, 80 Ky. 368, 370, the court takes the view that in determining the sufficiency of the material averments of a pleading an exhibit may properly be considered only as evidence upon the trial of an issue therein and not in aid of or in derogation of such averments. While this statement of the law may not agree with the general doctrine upon the subject, it does to some extent warrant the conclusion reached, to the effect that an exhibit cannot nullify an allegation it was not offered to support and with which it had no sort of connection, whatever may be its effect upon the final hearing' of the cause upon the merits. This ground of demurrer will not avail.
The written memoranda signed by defendant for the
The memorandum further sufficiently identifies the property sold. It locates and describes it as a part of the subdivision, St. Patrick’s Site, in the town of Weston, W. Va., and shows the consideration which she agreed to pay. It says the lot is lot one of that subdivision and that she purchased it at public sale on the day the subdivision was sold, that being the date of the memorandum. Nor is the memorandum defective for want of a sufficient statement of the parties to the contract, due to the absence of plaintiff’s name as party thereto. Where one of the parties to a contract is acting by
But counsel point, out more especially and rely more confidently, if not exclusively, upon the failure of each of the four memoranda to state specifically the terms agreed upon for the payment of the consideration and criticize as legally insufficient the provision that the consideration is “to be settled for in accordance with terms and conditions announced.” These terms it is urged must be stated in the writing itself or in some of the papers attached thereto or made a part thereof by some reference to it by way of identification or signed by her\ There are some authorities and decisions which support the doctrine contended for and hold these terms to be too indefinite and uncertain to satisfy the statute, the argument being that to prove what these terms and conditions were in order to take the case without the statute is in direct disregard of its spirit and purpose and hence within its prohibition. Authority that we cannot ignore because binding upon this court have adopted the contrary view upon, the very question to be determined in this case. No doubt can arise as to the exact consideration the defendant agreed to pay for each lot. Each memorandum definitely specifies the purchase price and she verifies the amount by her own signature. The only failure to comply with the statute, if failure it be, is the omission to state the time and amount of each of the several payments. Where the price to be paid is certain and definite the transaction will be interpreted as requiring a cash payment upon the tender of a conveyance. Judges Brockenbrough and Carr so hold in Smith v. Jones, 7 Leigh 165, 30 Am. Dec. 493, on the theory that where in a sale of land there is no time fixed for payment of the consideration, courts will assume that the parties intended a cash transaction. Such apparently is the ordinary rule. Hawkins v. Studdard, 132 Ga. 265; Brad
The bill and each memorandum makes clear and certain the time of the several payments of the consideration, when read together and in connection with the phrase “to be settled for in accordance with terms and conditions announced”, to which defendant gave her'unqualified consent and by which she agreed to be bound when she affixed her signature to’ the memorandum. They require one-fourth to be paid in- cash and the remainder in one, two and three years thereafter with interest, for which she agreed to execute notes to be secured by a vendor’s lien retained in the deed. For the purpose of testing the sufficiency of the bill upon demurrer, and not upon the merits when developed by answer and proof, she admits the truthfulness of the specification of these items. Deference to some other instrument, reeoi’d or other matter by which certainty of the terms of payment of -the consideration, duly specified, is reasonably ascertainable is sufficient under the statute. Atwood v. Cobb, 16 Pick. 227. See also Benjamin on Sales (7th Ed.), sec. 222a.
There is this further provision of chapter 98: “But the consideration need not be set forth or expressed in the writing, and it may be proved (where a consideration is necessary) bj1- other evidence”, which, if it means what the language plainly imports, supports the conclusion we have already reached. For, if there be no need to state the consideration for the land purchased and it can be proved by evidence aliunde, certainly the terms of payment could likewise be established. , The omission of the one element of the contract justifies, indeed necessitates, the omission of the other. To excuse the statement of the consideration and require the writing to state the terms upon which the consideration is to be paid, is paradoxical.
For these’reasons our order will direct the re-certification of the record with our approval of the ruling upon the demurrer. Ruling of circuit court sustained.