41 W. Va. 428 | W. Va. | 1895
This was a suit in equity, instituted by Elias Ileavner against the defendants, Morgan Morgan et ah, in the Circuit Court of Upshur county, which had for its object the collection of a certain single bill which was executed by the defendant Morgan Morgan to W. G. L. Totten, for the sum of three hundred and twenty live dollars, dated the 14th day of October, 1874, and payable two years after date, with interest from date, which single bill was on the 14th day of October, 1875, assigned, for value received to said Elias Ileavner. The plaintiff, in his bill, prayed for a specific performance of the contract, and that the land might be sold to satisfy said single bill.
The defendant Morgan answered, exhibiting the title bond executed to him by said Totten, in which he covenanted, for the consideration therein mentioned, to convey the tract of land therein described, containing two hundred and three acres, to said Morgan, with covenants of general warranty. ITe alleges that all of the bonds executed by him to said Totten for said tract of land have been paid off and discharged, with the exception of said
On the 18th day of February., 1882, the cause was referred to a commissioner, to ascertain what amount of purchase money had been paid on the land in the bill mentioned, and to whom, and to ascertain and report whether the deed tiled with the bill embraces land not owned by the defendant W. O. L. Totten at the time of his sale to the defendant Morgan Morgan, the true (quantity of the land owned by said Totten in the tract sold by him to Morgan Morgan in the bill mentioned, and ascertain the true metes and bounds thereof, empowering said commissioner to do the necessary sun-eying, etc.
2s umerous depositions were taken before said commission - er in behalf of the plaintiff and defendant. Surveying was done, and a plat and a report returned. Said commissioner found that said Morgan Morgan paid to the said Totten all of the purchase money for said land except the three hundred and twenty five dollars, to enforce the payment of which this suit was brought. Said commissioner also found that the deed filed with plaintiff’s bill docs not cm-
Tlie defendant Morgan excepted to said commissioner’s report so far as it found that the deed tiled with plaintiffs bill does not embrace any land not owned by tlie defendant Totten at tlie time of his sale to the said Morgan, and so far as it found tile quantity of the land sold and conveyed by Totten to him to be two hundred and sevenieeu and one half acres.
Other depositions were taken in the cause, and on the 14th day of February, 1885, the cause ivas heard, and a decree rendered, sustaining the exceptions to tlie commissioner’s report filed by said Morgan thereto, and dismissing the plaintiff’s bill, with costs, and directed that said Totten should convey said land to said Morgan Morgan conforming to and following the lines represented of Watson Westfall.
From this decree an appeal was taken to this Court, which on the 12th day of November, 1887, resulted in reversing saill decree, with costs, and remanding the case, with leave to amend his hill. See 30 W. Va. 335 (4 S. E. 408).
The death of Elias Heavner having been suggested, the cause was revived in the name of Jacob W. Heavner, his executor; and the said executor filed an amended hill against Morgan Morgan, W. G. L. Totten, James Foss, Anderson Shingleton, and Fannie II. Ely, in which he commences at the original patent for thirty thousand acres of land issued on the 25th day of June, 1794, to John Davenport and others, which land is alleged to have been located in Harrison county, hut now in the county of Fp-sl'iur, and, tracing the title down to the present owners,
The defendant Morgan answered the plaintiff’s bill, admitting the statements and allegations therein contained as to the manner in which the title of the said lot No. 14 was derived by Leonard Grites from the state, and also as to the manner in which the title of a portion of said lot 14, adjoining lots 13 and 23 and 24, was conferred upon the said two sons of Leonard Grites, and passed from them to Thomas Selby, also as to the sale of said tract as the prop-ertj' of said Selbj' under a decree of the court and its purchase by said Totten, and his purchase of the same from said Totten, and the execution of his bonds for the purchase money; but he denies the allegations with reference to the purchase within the interlock except as to the fourteen acres next to lot 13, which he says was taken by mistake. He denies that G. W. Heavner, son of Elias Heav-ner, asked him if he should buy the single bill for three hundred and twenty five dollars from W. G. L. Totten for his father, if defendant would have any objection, and thereupon he (Morgan) said that said single bill was all right, or that he informed C. W. Heavner at any time that said single bill was all right; but alleges that, in all conversations with said C. W. Heavner concerning said single bill, he informed him there wras a deficiency in the quantity of the land he had purchased from Totten, and he ',.wouldnot pay said bond or single bill. He also denies that Elias Heavner notifiedhim in January,
Anderson Shingleton also answered, adopting the answer of said Morgan, and claiming that he had been in possession of the four acre-tract in lot 24 since December, 1883, and denies that said four acres ever were in the possession of Leonard Crites, John D. Crites, William M. Crites, or Thomas Selby, or W. G. L. Totten, or the defendant Morgan, or that there ever was any interlock on any portion of said lot 24.
Fannie Hunt Ely also answered said bill, adopting the answer of Morgan. She also denies that Leonard Crites, William M. Crites, Thomas Selby, or Jacob L. Crites, or any person holding under them, ever hud possession of any portion of lot 23, or that there was any interlock except what Jacob L. Crites had possession of south of the Buchanan river, containing four or five acres, which was limited to his inclosure, and that he had no deed or other writing for the same, and denies that there was any interlock on any portion of lot 23 until the deed was made by
Walter Phillips, committee for James Ross, a lunatic, also answered said bill, adopting the answer of Morgan Morgan, and putting in issue the allegations of the bill with reference to the alleged interlock on lot No. 13.
By consent of parties, the cause was recommitted to G-. M. Fleming, one of the commissioners of the court, who was directed to send the surveyor of lands for the county on the lands in controversy, to do any such additional surveying as the parties in interest might require, and to have said surveyor report his proceedings, with a plat, to him; and said commissioner was directed to take further proof in relation to the lands in controversy, and report thereon to the court.
On the 25th day of January, 1892, said commissioner returned and tiled his report, in which he found that the interlock of the land in controversy upon the lands now owned by the defendants James Ross, Anderson Shingle-ton, and Fanny IJuntEly, respectively, was created by John McWhortor and Alex S. Withers in the sale to said Ross and to said Ely of land already sold by them to Leonard Crites; that as between Leonard Crites and his grantors, McWhorter and Withers, the latter created the interlock upon lots 13, 24, and 23 as surveyed by Minter Bailey at the time they sold lot 14 to said Crites, they still being the owners of lots 11, 13, 24, and 23. Said commissioner further found that said Crites, having held possession of the fourteen acres of improved land within the interlock since about.the year 1851, until ho had title to the same by prescription, at the same time claiming title to all the land in the interlock to the extent of his boundary, and said Ross, Shingleton, and Ely not having had possession within the interlock, should be held to be in adverse possession o all the land in the interlock, and his title to the same as to the fourteen acres was perfected by prescription, and that the metes and bounds of the land in controversy are correctly set forth in said Totten’s deed, filed with the original bill as Exhibit C, and that said deed does not embrace
The defendants filed six exceptions to said commissioner’s report: (1) As to the finding “that the interlock of the lands iti controversy upon lands now owned by defendants James Ross, Anderson Shingleton, and Fanny Hunt Ely, respectively, was created by John McWhorter and Alexander Withers in the sale to said Ross and said Ely of lands already sold by them to Leonard Crites, they being still the owners of lots 11, 13, 24, and 23, on the ground that said McWhorter and Withers never sold and conveyed any land to said Leonard Crites except lot No. 14 as it lay in the block of lots of the Davenport survey, and their deed to Leonard Crites only covered and embraced lot 14 according to Minter Bailey’s subdivision of the Davenport survey into lots; (2) to the finding that said Leonard Crites, having held possession of the fourteen acres of improved land within the interlock since about the year 1851, until he had title to the same by prescription, at the same time claiming title to all the land in the interlock to the extent of his boundary, and the said Ross, Shingleton, and Ely, and their grantors not having possession within the interlock, should be held to be in adverse possession of all the land in the interlock, ami his title to the same, as of the fourteen acres, perfected by possession,” on the ground that said fourteen acres lies within lot 13, and the possession of said fourteen acres so in lot 13 could in no event apply to lots 23 and 24, and on the further ground that the evidence does not warrant that said Leonard Crites ever claimed his
The cause was heard on the 16th day of February, 1892, and the court sustained the exceptions to the reports of Commissioner Fleming, and dismissed the original and amended bills as to the defendants Morgan Morgan, Anderson Shingleton, Fannie Hunt Ely, James Ross, and his committee, Walter Phillips, and gave judgment in favor of Jacob W. lleavner, executor as aforesaid, against said William Gr. L. Totten, in the sum of six hundred and sixty two dollars and sixty seven and one-half cents, with interest and costs, and directed a deed to be made to said Morgan by said Totten, the description conforming to and following the lines on the plat of Watson Westfall filed in the cause, but including in such deed the small parcel of land containing fourteen acres, shaded green, containing one hundred and fifty three acres horizontal measurement.
The ffrst error relied on is that “the court erred in dismissing the plaintiff’s bills, because Morgan Morgan and those under whom he claims had held actual, continuous, and adverse possession of said tract of two hundred and three acres of land, under claim of title to the whole, for more than ten years prior to the institution of said suit.” In considering the questions raised by this assignment of error, we look first, at the description contained in the deed from John McWhorter, Alexander S. Withers, and M. Withers to Leonard Crites, a copy of which is filed with the deposition of William M. Crites, as “Exhibit A A,” and it is there found that the land is described as “lying in Up-shur county, being lot No. 14 in the division of a tract of thirty thousand acres, sold as delinquent and forfeited in the county of Lewis, by the commissioner of forfeited and delinquent lands for said county of Lewis, forfeited in the names of John Davenport and others, the plat constituting part of the record in said cause, now remaining in the office of the clerk of the Circuit Court of Lewis county, as will more fully and at large appear, said lot 14 containing one thousand acres, more or less.” And said William M. Crites, in his deposition, says: “It is the land in the plat as No. 14. It embraces the land in controversy in this suit.” And when said plat is referred to, which is a part of the record in this case, it is found that said land, from lot 7 to 30, inclusive, was subdivided into rectangular tracts, by lines running parallel with each other, said lot 14 being bounded by lots 13, 23, 15, and 11, and was separated from these lots by straight lines; and a glance at said map at once discloses that the interlocks claimed were caused by a de-departure from said straight lines, which not only encroached upon the adjoining lot, but, if extended, would derange the entire survey. It is true that Leonard Crites> by mistake went on to a portion of lot No. 13, took possession and improved about fourteen acres, which, to the extent of his inclosure the decree allows him to hold, as has been shown, the said Leonard Crites, by his deed, only took lot No. 14 in the division of the
In the case of Koger v. Kane's Adm'r, 5 Leigh, 606, it was held that “the jurisdiction of a court of equity to enjoin the collection of purchase money of land, after conveyance executed, on the ground of deficiency in quantity, the contract being a sale by the acre, is not now to be questioned.” In Virginia, “equity will enjoin the collection of purchase money7 of land on the ground of defect of title after vendee has taken possession under conveyance from vendor with general warranty, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly that the title is defective.” See, also, Clark v. Hardgrove, 7 Gratt. 399. See, also, Renick v. Renick, 5 W. Va. 285. So, also, in the case of Johnston v. Jarrett, 14 W. Va. 238, it was held that, where a vendor has bound himself to convey the land with covenants of general warranty, he is responsible for defects of title to any part of the laud so sold; and a court of equity will not compel the payment of the whole of the purchase money until the defect is removed, although there has been a conveyance of such land to the vendee.
It is alleged in the amended bill that on the 11th day of October, 1875, G. W. Iieavner, the sou of said Elias Ileav-ner, asked the said Morgan Morgan, if he should buy said single bill for three hundred and twenty five dollars from the said W. G. L. Totten for his father, if he (the said Mor
My conclusion, therefore, is that the plaintiff has failed to show such a state of circumstances as would estop the defendant Morgan from setting up a failure of consideration as to said single bill. It is shown by the testimony that said Totten is insolvent, and the only protection left to the defendant Morgan is to withhold the purchase money until the defect in the title is removed. See Renick v. Renick, 5 W. Va. 285; Koger v. Kane’s Adm’r, 5 Leigh, 606; Sutton v. Sutton, 7 Gratt. 234. In this case there was a title bond in which Totten agreed to convey this land, with covenants of general warranty; and in the case of Renick v. Renick, supra, there was a defect in the deed, and the bonds for the purchase money had been assigned. The court, in its syllabus, says: “The defect in the title is clear and admitted, and, under the peculiar circumstances of this case, it would be unreasonable to restrict the vendee to his covenants of general warranty,-and compel him, with the admitted defect and failure of title, to discharge the whole of his purchase money, and to risk the hazard of the solvency of his vendor’s estate after his decease.”
The title bond from said Totten to Morgan in this case described the land as containing 203 acres; and in Cristip v. Cain, 19 W. Va. 441 (fifteenth point of syllabus) this Court held that “the vendee of land has a right to rely on the statement of the vendor as to the number of acres in a tract of land which he sells, and naturally does rely upon it; and, as the quantity of land is generally a material matter in the purchase of a tract of land, it ought, prima facie to be regarded that the vendee was induced to pay or agreed to pay the price named in the contract or deed because of the statement in it by the vendor of the number of acres, which
Taking into consideration the facts disclosed by the testimony in this case, and viewing them in the light of the authorities cited, our conclusion is that the Circuit Court committed no error in the decree complained of, and the same must be affirmed, with costs and damages.