52 W. Va. 207 | W. Va. | 1902
By a deed of general warranty, 2d October, 1899, S. Ii. Shaffer and wife conveyed to Seymour Z. Han* a tract of three hundred and twelve and one-half acres -of land in Tucker County. This and other tracts were once owned by Harness, and he conveyed this tract to Eandolph as trustee to secure some parties as sureties for Harness in a bond to Harper, 19th October, 1882. A chancery suit was brought by Auvil against Harness to. sell the land's of Harness to pay debts, in which suit some of the lands of Harness were sold, he becoming the purchaser, giving some notes for the purchase money with Shaffer as his surety. Harper was not a party, nor were the sureties secured in the deed of trust to Eandolph. Harper’s debt was decreed; but as he was not before the court and the tract of three hundred and twelve and one-half acres was in the deed of trust operating to secure his debt, that tract was not decreed to sale, was not sold, and the right was reserved to the securities in the Harper debt to enforce their deed of trust against that tract. Harness failed to pay the purchase money, and Parsons, the commissioner who made the sale in the Auvil case, brought a suit to re-sell the lands for the. purchase money, and they were re-sold and bought by Shaffer. By deed of trust, dated 4th September, 1885, Harness conveyed several tracts, this tract of three hundred and twelve and one-half acres perhaps being one of them, to Parsons as trustee to secure Shaffer in the said notes given by Harness to Parsons, commissioner, under said sale made by Parsons in the Auvil case. Dailey was substituted as trustee in place of Eandolph in the deed of trust from Harness to Eandolph and he sold the tract of three hundred and twelve and one-half acres under that deed of trust to Chipley and Shearer, and conveyed to them. In a chancery suit of Crossland against S. H. Shaffer, Cunningham, commissioner, sold three tracts of thirty-nine and seven-eighths, fifty-six and five acres, Mrs. Shaffer, wife of S. H. Shaffer, becoming purchaser. These lands were the property of Shaffer. Shaffer had a survey made of a boundary of one hundred and
Iiarr brought a chancery suit in Tucker County against Shaffer setting up the conveyance by Shaffer to him of the three hundred and twelve and one-half acres, the deed of trust given by Harness to Randolph, trustee, for the Harper debt, the sale of the three hundred and twelve and one-half acres under it, seeking to establish and quiet his title derived from Shaffer over the right under the sale by Dailey, trustee; and in default of that relief, then to compel Shaffer to convey to Harr other lands in place of the three hundred and twelve and ono-lialf acres; and in default of that relief, asking a personal decree against Shaffer for damages for the breach of the warranty contained in the deed from Shaffer to Harr. The circuit court dismissed Harr’s bill, reserving right to him to bring any other suit against Shaffer for his rights mentioned in that suit, and on appeal to this Court that decree was affirmed. 45 W. Va. 709.
Later Harr brought the chancery suit we now have in hand in Tucker circuit court for the purpose of recovering from Shaffer for breach of warranty in the deed to Harr from Shaffer and wife, charging that in the purchase of said three small tracts at the judicial sale made bv Cunningham to Mrs. Shaffer her husband was the real purchaser, and paid the purchase money, and that she had nothing to pay with, and that the purchase in her name was with intent to defraud him out of his debt, and that Shaffer procured, the conveyance of the boundary of land by commissioner Cunningham to his wife with that intent. The court dismissed Harr’s bill and he appeals.
It is api^arent that the deed from Shaffer and wife to Harr, as it was subseqxxent to the Harper deed of trust, conferred no title on Harr. Harness gave that deed of trust to secure the sureties in the bond to Harper before the deed of trust from Harness to secure Shaffer as surety in the debt of Harness to Parsons, commissioner, if that is, as it seems, the shadow of
It does not seem that Harr waited for a demand from the adverse claimant for a surrender of possession, but quit possession. Does this prevent his recovery? The cases say that while eviction or dispossession by adverse title is not demanded, yet the better title must bo hostilely. or adversarily asserted. 8 Am. & Eng. Ency. L. 110; Eawle, Cov. Title, s. 149. The mere silent existence of a superior title will not do by this law. A demand of possession will do; a demand for payment of a prior mortgage will also. In this case the hostile title is a deed of trust from Harness to his sureties for the Harper debt. The question is, was the sale under that deed of trust such an assertion of the adverse title as to amount to constructive eviction or ouster? I think it was in reason and upon authority. It told in no uncertain import that the assertion of that claim was intended. It was the consummation of that trust by passing the equitable and legal title from Shaffer. A general warranty is a covenant for quiet possession. Did not this sale, signifying that Shaffer had not paid, would not and could not pay, the Harper debt, disturb the quiet of Harr’s possession? Could he thereafter go on to clear this wild land and improve it in peace and safety? Could he crop it in certainty of reaping, or sow it in grass for pasturage? A deed of trust was given in the ease of Haffey v. Birchett, 11 Leigh 83; then a second one of general warranty; and a sale was made under the first; the court held that the sale was a breach of that warranty calling for damages. That is our case. Many cases say that where a vendee buys in, or under, a prior claim, it is an ouster for action on the warranty. Shaffer had notice of this sale before it took place, as Harr went to him to get him to do something to save him; but ho did not prevent the sale by payment, did nothing to stay it, though he did not deny the debt.
During the existence of Shaffer’s liability to Harr Mrs. Shaffer bought the three tracts of thirty-nine and seven-eighths, fifty-six and ñvo acres at the judicial sale made by Cnuningham of her husband’s lands. She was not present at the sale. Commissioner Cunningham never saw her. The land was bid in by an attorney for her. ■ The husband was present and executed the sale notes in her name. When payanent was made one, two or three of the checks were checks owned by the husband, payable to him, endorsed by him. On the. deferred payments S. H. Shaffer paid one.hundral dollars. Another deferred pay-anen! was made b}r a.n attorney for Mrs. Shaffer, but the manner of payment the commissioner does not remember. The attorney was not examined. This shows that the purchase was really that of the husband to defeat Harr’s debt. This intent on Shaffer's part is strongly confirmed by another circumstance. Before a (hied was made to his wife under that sale he took a surveyor and had a boundary of land surveyed, including the three tracts which his wife had so purchased, and also including land, of his which she had not purchased, in the whole ono hundred and twenty-five acres, and had Commissioner Cunningham to- convoy by that boundary thus seeking to put in his wife’s name, not only those three tracts, but some other of his valuable land. Why did he do- this? Cunningham says that before the sale of Shaffer’s land Shaffer asked him to give a statement of the amount required to pay the decree, saying that he intended to- pay before sale; hut later Shaffer told him that he preferred to have the land sold under
Reversed.