4 W. Va. 620 | W. Va. | 1871
The view which I must adopt of this case renders it unnecessary to consider more than one of the numerous objections assigned as error: It is, whether the complainant’s bill o.ught to have been dismissed, upon the facts disclosed by the record. This depends on whether such facts show
It appears that said Hern caused the real estate of his wife’s father, John Hutsonpiller, deceased, to be advertised in the name of the heirs, for sale, at public auction, at a designated time and place; and that such advertisements, at his instance, were posted at several public places in the county, one of them being at the mill on said real estate, then in the possession and occupancy of Hern. Also, that the sale of said real estate was made in pursuance of such advertisement, at which sale Hern was present, purchased the mill property himself, and made no objection whatever to the sale to Hedrick. That Hern afterwards received, without objection, the full amount of the purchase money for his wife’s share of the land purchased by Hedrick, in confederate money, and gave a receipt therefor, or for the last payment of the same. That after, the sale, Hedrick took possession of the part purchased by him, and Hern also took possession of his .part, and they also went on the premises, agreed upon, and staked off the division line between them, placed the partition fence upon the line, and agreed that each should, in the future, keep the one-half of said fence in repair; and Hern having the choice, selected the part or end next his own premises.
Further, that Hern, some time after the. purchase of Hed-rick, stated that he would make a deed to Hedrick as soon as the heirs made him a deed for the part purchased by him. He also stated, as late as 1867, that the heirs intended to sue Hedrick for the land, but he would have nothing to do with it.
It does not appear that it was any part of the contract or agreement for the sale of the lands, that the purchase money should be paid in confederate money, nor that any-
'We have'then presented, in this instance, the case of a verbal contract for the sale of real estate; the receipt of the purchase money by the vendor; the delivery of the possession to the vendee who continues to hold possession and improve the property for many years, with the knowledge and acquiescence of the vendor. The question therefore recurs, ought the vendor who seeks, in a court of equity, under such circumstances, to repudiate and rescind his contract and oust his vendee of his possession, to be entertained for such a purpose? It appears to me, not, and that to do so, would be an unwarrantable disregard of the pervading and cherished maxim of equity which always requires that a party who invokes the jurisdiction of the court, and asks equity, shall first do equity unto others. This principle, it is clear, would require Hern to comply with the contract on his part, and I am of the opinion it ought, under the facts of this case, to be enforced.
From this it results that, as Hedrick is entitled, under his purchase, to whatever interest Hern had in the laud in right of his wife, which was the possession, at least, during cov-erture, it was not competent for .the complainants, or either of them, during their coverture, to file a bill for possession or partition of the land so purchased by Hedrick. Nor do I think it would be proper in this case, to adjudicate any questions touching this sale, that might arise between Hed-rick and his co-defendants. Godfrey and wife v. Heavener et al., 3 W. Va. Rep., 426.
I think, therefore, that the case should be reversed, the bill dismissed with costs here and in the circuit court, but without prejudice to the rights of Hetty Hern, the female complainant. •
Decree reversed.
