52 W. Va. 317 | W. Va. | 1902
On the 5th day of March, 1901, the commissioner of school lands of Tucker County, in pursuance of a decree of the circuit court of said county, sold three tracts of waste and unappropriated lands, containing, respectively, two hundred and ten, fifty-three and twenty-seven acres, to C. J. McKinney, for two hundred and eleven dollars, one hundred and seven dollars and twenty-five dollars, respectively, receiving therefor the sum of one hundred and seventy dollars in cash, being about one-half of the entire purchase money, and three notes for fifty-seven dollars and sixty-six and two-thirds cents each, executed by McKinney, with John Hamilton and Tena Hamilton, his wife, as sureties, and payable in six, twelve and eighteen months after their respective dates. At the March term, 1901, of said court, the sale was confirmed, and the commissioner authorized to collect the notes when due, and, after payment of all the purchase money, to make a deed to the purchaser.
At May rules, 1901, before any deed had been made to McKinney, John Hamilton filed his bill against him in said court, alleging that he and McKinney had jointly purchased the land, in pursuance of a prior oral agreement, by the terms of which Hamilton was to contribute two-thirds of the purchase money of the two hundred and ten acre tract and the fifty-three acre tract and one-half of the purchase money of the twenty-seven acre tract, and McKinney was to contribute the balance of the money and they were to become owners of the land in the same proportions; that he has fully paid to the commissioner his two-thirds of the purchase money; that before the sale he and Me-
At the next rule day, McKinney filed his answer to the bill, denying absolutely that any such agreement had ever been made and that Hamilton was entitled to have any part of the land; admitting payment by Hamilton of three notes given for part of the purchase money, but averring that it was clone voluntarily and without his knowledge or consent and for the purpose of obtaining an advantage over the defendant and as a pretext upon which to claim part of the lands; and that Hamilton and his wife had no connection with the matter of the purchase of the lands except that they were his sureties upon said notes.
The depositions of both parties and witnesses for the plain-' tiff ivere taken and filed, and, at the hearing, the commissioner of school lands voluntarily appeared and filed an answer, admitting payment of all the- purchase money and his readiness to make a deed to the parties entitled to the land, and a decree was entered adjudging the plaintiff entitled to two-thirds of the two hundred and ten acre'tract and of the fifty-three acre tract and one-half of the twenty-seven acre tract, and directing Jeff Lipscomb, the commissioner of school lands, to execute a deed conveying the land to the plaintiff and defendant in the proportions'stated. From this decree, McKinney has appealed.
The bill sets up an equitable title by way of express trust, and the only question is whether it is sustained by proof. Hamilton’s testimony is direct, positive, consistent and supports every. material allegation of the bill, and much that he
It is argued in the brief for counsel for the appellant that there could have been no -such contract as is contended for by the plaintiff, because he testiiies to one state of facts while the defendant testifies to another, from which difference the court is bound to -say that one of the elements of a contract, namely, a complete accord or consent of minds, is lacking. If it were established as a rule that a verbal contract can never be set up and enforced when the parties do not agree in their testimony as to what the contract was, it would be absolutely impossible to enforce such a contract if either of the parties should see fit to depart from the truth in his testimony, and such a rule would strongly encourage perjury. When the parties differ as they do here, the court is bound to ascertain, if possible, whether there was such a contract as is claimed or not, although the evidence of the parties conflicts. In such case, the finding is determined by the preponderance of the evidence in favor of one side or the other, and where there is so much evidence on one side and so little on the other, as in this case, the finding is a matter of no difficulty.
In the answer, the defendant relies upon the statute of frauds, but, as the bill sots up an equitable title in the plaintiff, based upon a contract for the joint ¿purchase of the lands and the payment by the plaintiff of a part of the purchase money, and does not sot up a contract, for the sale of land by the defendant to the plaintiff, and ask specific performance of that contract, the statute of frauds has no application. It is a bill to enforce an express trust. Neither an express, nor a constructive trust in lands need be created, declared or proven in
Another objection to the decree is that the court permitted the commissioner of school lands to appear and file an answer at the hearing. As the title to the land was not in him, as was erroneously assumed in the court below, but under the control of the court in another suit, for the purpose of passing it to the purchaser, he was not a necessary or proper party. As neither the plaintiff nor the defendant had the legal title, the controversy between them was concerning the ownership of the equitable title. As was said in Currence v. Ward, cited, the equitable title constituted a sufficient subject matter for a trust enforcible in equity, and the court had power to declare the right to it as between the parties, without bringing in the legal title. This being true, and the relief between them being in no way dependent upon any matter set up by the answer of the commissioner, nor in any sense affected by his appearance or answer, the error, if any, in allowing his answer to be filed, is entirely harmless, and affords no ground of complaint against the decree. The court might well have stopped with a simple adjudication that two-thirds of the equitable title to two of the tracts and one-half of such title to the other were in Hamilton. But the decree went beyond this in directing a deed to be made on that basis. Technically, this was error. An adjudication of the equitable title would enable Hamilton, upon showing it in the
That the bill does not sufficiently describe the land is the ■only remaining ground of complaint. It was ground of demurrer, if an available objection at all, and was waived by failure to so raise it. But as a decree of conveyance was unnecessary in this suit, as has been shown, a description by metes and bounds was not essential to the granting of relief. It sufficiently identifies the land to enable the parties, after decree in this cause, to show, in the other, with absolute certaiffiy, how the conveyance should be there ordered to effectuate their rights as adjudicated here.
As the decree is free from prejudicial error, it is to be affirmed.
Affirmed.