61 W. Va. 561 | W. Va. | 1907
Jeremiah Combs made a deed of trust, 11th January, 1889, to a trustee to secure a debt to H. H. Harper. The trust conveyed three different tracts of land. One of the tracts is described as lying in Raleigh county and situated on Wingrove Branch waters of Sand Lick containing 61 acres 2 roods and 29 poles, and is described as conveyed from Francis Granger and John Granger to Combs by a
' Say that the mistake of inserting in the deed of trust one tract of land when another was intended has. been proven. The evidence fairly shows this fact, outside the evidence of Harper, he being incompetent to speak because of Combs’ death pending the suit, and say that this would call for a reformation of the deed of trust, Still, how can Harper ask that the trusteee’s deed be reformed? The trustee did not sell the 75 acres; Harper did not buy the 75 acres; and a reformation of the trustee’s d.eed to Harper would make it say what would not be the truth. This cannot be done. Harper’s right does not come from that trustee’s deed. Any right he may have must rest
Should we reform the trust deed? Not unless we can say, upon all the evidence, that the right of the Arthurs is void as to the right of Harper. If we cannot impeach or overthrow the right of the Arthurs, of what avail would be reformation of the trust deed? Had the Arthurs notice of the right of Harper, notice of his equity to reform the trust deed, notice of the mutual mistake aforesaid ? We may say that the Arthurs kne.v of some claim to the 75 acres made by Harper, because some evidence shows that Arthur proposed to buy the tract of Harper; but under the evidence it is somewhat doubtful whether this was before or after the deed to Arthur; the evidence here is conflicting. It looks like it was before that deed, but the evidence is uncertain in this matter. Say, however, that it was before that deed. And we must here say that some evidence shows that Arthur’s proposition to purchase related, not to the 75 acres, but to another tract, which Arthur wanted to buy to have access to a public road. Here again the evidence is indefinite and doubtful. What is it that, at the utmost, of which the Arthurs had notice? Only that Harper set up some claim, not that the Arthurs knew of the basis on which Harper’s right would rest, namely that a mistake had been made in putting the wrong tract in the deed of trust. The evidence does not show that the Arthurs knew of that mistake, and is it not essential that they should have notice of that particular fact? And here I observe the important fact.that the bill tloes not allege that Arthurs knew of this mistake, as it must. It charges that they combined with Combs to defraud Harper, “with full knowledge that the same was plaintiff’s land,’’ This could not be. It was not his land. He had not bought it. Shall we say that it was their duty to enquire of Harper? I hardly think so. Anyhow, Arthur went to a lawyer and got him. to examine the record, and found that the deed of trust did not include the 75 acres, and was advised that Harper had no .title to it, and that Arthur could safely -buy. We do not think that a fraudulent act on the part of Arthurs is proven. They perhaps knew.
Arthur was a son-in-law and Bette Arthur, his wife, a daughter of Combs. Is that a factor in this case? I do not see that it is as it would be in the case of a fraudulent conveyance against a creditor.
Laches. Harper waited twelve years from the date of the deed of trust until he brought the suit to correct the mistake. Is he barred by laches! He lived in the neighborhood. He had this deed of trust in his possession. The record of it was public. The bill in this case states that Harper never knew of the mistake until the deed had been made to Arthurs. . “When a party relies on ignorance of facts material to his rights, as an excuse for his laches and delay in asserting them, he must show why he was so long ignorant, and acquit himself of all knowledge of facts which would have put him on inquiry, and must show how and when he first acquired a knowledge of the facts."’ 18 Am. & Eng. Ency. L. (2d Ed.) 114. Now, the bill does tell us when and how Harper discovered the mistake, and so far complies with the rule just quoted; but the bill does not come up to the demand that an explanation must be given of the prolonged delay. In Badger v. Badger, 2 Wall. 87, 95, it is held that the party who makes such appeal “ should set forth in his bill specifically what were the impediments to an earlier proseccution of his claim; and how and when he first came to a knowledge of the matters alleged in the bill.” In Wood v. Carpenter, 101 U. S. 140, the Court says: “A general allegation of ignorance at one time and of knowledge at another is of no effect. If the plaintiff made any particular discovery, it should be stated when it was made, what it was, how it was made, and why it was not made sooner.” These principles are stated and approved in Hardt v. Heidweyer, 152 U. S. 547. What prevented Harper from finding-out this mistake? What impediment existed? The bill does not say. Combs did nothing to prevent discovery. It was simply an accident, or rather want of diligence, which the authorities cited demand. How long can a man sleep and simply say he was asleep? I think that the authorities given in Lafferty v. Lafferty, 42 W. Va. 783,
The circuit judge upon evidence somewhat conflicting and inconclusive and indefinite has dismissed the bill. “A decree of a circuit court founded on conflicting and contradictory testimony will not be disturbed, unless plainly erroneous.” Yoke v. Shay, 47 W. Va. 40. “Unless plainly erroneous, the decree of the circuit court will not be disturbed.” Spurgin v. Spurgin, 47 W. Va. 38.
We therefore affirm the decree of the circuit court.
Aifwuned.