131 Va. 59 | Va. | 1921
delivered the opinion of the court.
A sufficient preliminary statement of the case is this: On the 18th of December, 1907, Elkanah Garber executed ■a title bond to J. H. Goins whereby he bound himself to convey to Goins on or before the 17th of December, 1908, a tract of land containing 107 acres. By the terms named in the bond, the sale was made by the boundary and not by the acre, and the purchase price was $300.00 paid and to
Goins entered at once into possession of the land, and (with the exception of two small portions known as the Rhoda Lawson land and the Null Wallen land hereinafter mentioned, has remained in possession ever since, but he made no further payments on the purchase price.
In July, 1916, Garber filed his bill to specifically enforce the contract. He had not, theretofore, tendered Goins a deed, but alleged that-he had not done so because no further payments had been made on the price, and he offered and filed a deed with his bill. Goins answered, setting up several minor defenses, but relying principally upon the allegation that Garber did not have a good title to the land. He did not ask for a rescission of the contract, but merely that Garber be required to perfect his title before any decree should be rendered to enforce the payment of the purchase money. There was an amended bill and an answer thereto, both of which will be more particularly mentioned later.
The cause was referred to George P. Cridlin, one of the commissioners of the court, to report on the state of the title, and he returned first a preliminary and later a final and very full and complete report. Upon the coming in of the latter, the court entered a decree confirming the same, disposing of all the questions in. the case, and directing a sale of the land, unless within thirty days thereafter Goins should pay the balance of the purchase money and the costs of the suit. From that decree, this appeal was taken.
The answer to the original bill, after a general denial of title in the complainant, undertook to point out certain particular defects therein. When the cause came on to be heard the first time on the original bill, the answer thereto and certain depositions, the court deemed it necessary and accordingly directed that the complainant should amend his bill to bring in new parties in whom it appeared that the legal title to the land, or some part thereof, might be outstanding. This action of the court was in direct furtherance of the course suggested by the defendant’s answer, and was eminently proper. In plain compliance with this
The amended bill was filed on the 28th of September, 1916. At the September term, 1920, after all the evidence had been taken, the final report of Commissioner Cridlin filed, and the cause fully prepared for hearing, the defendant tendered and was allowed to file what he termed an answer to the amended bill. This paper was prepared and offered by counsel who had recently come into the case in place of the attorney originally employed, whose business had called him permanently to another jurisdiction. It was ■an amplification of the first answer, but it was not necessary. There was no matter of defense therein which was not in general terms embraced in the first answer and in the issue theretofore made up and referred to the commissioner. Under these circumstances there was no error in rejécting the answer, which in effect was done by sustaining the exceptions thereto. Applications to amend answers rest in every case in the sound discretion of the court. 1 Bart. Chy. Pr., p. 445. In our opinion, there was no abuse of discretion in this instance.
3. The third assignment of error is as follows: “The circuit court erred in directing Geo. P. Cridlin, commissioner, to report upon any other matter than the state of the title to the land in controversy, and particularly in directing the said commissioner to summon before him any person, or persons, whom he should deem necessary parties to the cause.”
It is conceded that the reference to a commissioner for
When the appeal was granted in this case we were disposed to think that this assignment raised a very interesting question of practice, namely: the question as to the binding effect of a decree in á case of this sort where an interested party not named in the pleadings,- and who does not at any time.voluntarily appear, is brought into the case and his rights adjudicated upon no other process than a notice given by a commissioner acting in pursuance of a general direction of the court to convene any necessary parties not theretofore named as such in the proceeding. Upon more mature consideration of the very voluminous record, however, we find that the question is not material here, and that it is entirely moot, so far as the decree complained of is concerned.
5. The fifth assignment of error is that the court erred in holding that Elkanah Garber had such title to the land in controversy as he contracted to convey, and therefore erred in decreeing specific performance.
The finding and adjudication of the court upon this point as expressed in its decree was as follows:
“That while the complainant, a,t the time he contracted said land to the defendant, J. H. Goins, had no legal title thereto, and has not since that time acquired such legal title, yet his claim thereto by reason of the turning over to him by A. B. Smith and Wm. Goins of the title bond executed to them therefor by John M. Tate, coupled with his possession thereof to the date of said contract and the possession of the defendant since the date of the said contract, constitutes such title as he contracted to convey, namely: ‘a good and sufficient deed, with covenants of general warranty and free from encumbrances,’ and this notwithstanding the fact that the said John M. Tate, who executed the said title bond to the said A. B. Smith and Wm. Goins, never had 'any legal title to the said land.”
6. Error is assigned on the ground that the court over
There is nothing in the record to show that Null Wallen had any valid claim to this less than one acre of land in controversy. He does not appear to have been a party to
Whether this action bound Wallen or not, it is evident that the assignment must be regarded as frivolous and de minimis. Wallen’s claim and possession began after the land had been sold to and had been taken possession of by the defendant. The latter is not asking for rescission, and even if it were conceded (instead of being otherwise reported by a very accurate and careful commissioner) that Wallen had title to the small piece of land claimed by him, the only possible relief which the defendant could claim would be an insignificant abatement of the purchase money.
8. The eighth assignment is that the court erred in rendering judgment against the petitioner in favor of the complainant for costs.
The decree complained of is affirmed.
Affirmed.