68 W. Va. 562 | W. Va. | 1911
The general nature of the contract, involved in this cause, is set forth in the report of a former decision here, on .another
The former decision disposes of the charge of illegality or invalidity of the contract, as alleged, on the ground of fraud, or inhibition by public policy; and the remaining argument, against the sufficiency of the bill, namely, that it does not allege irreparable injury, is wholly inapplicable, the legal remedy for breach of a contract to convey land being obviously inadequate, and the law affording no remedy at all for enforcement of a trust. Hence the demurrer was properly overruled.
The vital inquiry is the_ character of the contract, viewed in the light of the statute of frauds, relied upon in a plea to the bill, a question neither raised nor considered on the former appeal, involving only the ruling on a motion to dissolve an injunction, made in vacation. At that time, no demurrer, plea or answer had been filed. The contract is verbal, and prior in date to the purchase by the defendant. The plaintiff, though willing to pay, or, to be strictly accurate, re-pay, a portion of the purchase money, and claiming the right to do so, has in fact paid nothing at all and title has vested in the defendant. At the date of the making of the agreement, neither party had any interest whatever in the land, either legal or equitable, and there was no copartnership relation. Each was to take and hold a portion of the land. In bidding, each acted for himself and as agent of the other at the same time, the action in one capacity, relating to one portion of the land, and in the other, to the residue thereof.
The basis of the cause of action, as disclosed by this inquiry, and analysis, seems to be the oral agreement and nothing more. Wfe perceive nothing of a collateral nature, constituting an independent equity, such as payment of purchase money; a prior interest in the land, not released; lack of consideration, moving from the grantee, accompanied by an'agreement to take mere legal title as a necessary step in the execution of some plan or purpose, previously agreed: upon p ox a copartnership, covering tBe~siib'ject matter of the conveyance. Such an equity seems to hefesséntial to the establishment of a trust or immunity of a con- '
RTo precedent or declaration of principle by this Court is broad enough to except this agreement from the operation of the statute The decisions making the nearest approach to it are Currence v. Ward, 43 W. Va., 367, and Hamilton v. McKinney, 52 W. Va. 317; but the cestui que trust in the former had an antecedent interest in the land, being an unfortunate debtor, for whose benefit another had purchased it at judicial sale; and, in the latter, the plaintiff had paid a portion of the purchase money. Some of the language in the opinions in both cases may be broader than the view here expressed, and unnecessarily so, since the facts established in each brought it within the limits
The assertions in Floyd v. Duffy, that an agreement, valid in íaw^Ts valid’in equity, and one, not valid in law, will not bo enforced in equity, and that equitalfle~title -to land must rest upon" something more than a mere verbal"coñixact7'ari"in perfect*ac-’ cord with almosFmoiform authority everywhere and not in con-illci^vitlWany^aclual decision ofthis Court. Our decisions, properly analyzed amTuñderstóod, will verify this statement. In every instance of exclusion from the statute, an independent equlfjdhas’beenHound. Floyd v. Duffy, cited; Bond v. Taylor, 68 W. Va. 317 (69 S. E. 1000); Johnson v. Ludwick, 58 W. Va. 464; Ratliff v. Sommers, 55 W. Va. 30; Moore v. Mustoe, 47 W. Va. 549; Boyd v. Brown, 47 W. Va. 238; Myers v. Myers, 47 W. Va. 487; Harris v. Elliot, 45 W. Va. 245; Currence v. Ward, 43 W. Va. 367; Marshall v. Hall, 42 W. Va. 641; Webb v. Bailey, 41 W. Va. 463; Deck v. Tabler, 41 W. Va. 332; Siler v. Mohn, 37 W. Va. 507; Frame v. Frame, 32 W. Va. 488; McClintock v. Loisseau, 31 W. Va. 865; Shaffer v. Petty, 30 W. Va. 248; Kimmins v. Oldham, 27 W. Va. 258; Titchenell v. Jackson, 26 W. Va. 460; Heiskell v. Powell, 23 W. Va. 717; Murry v. Sell, 23 W. Va. 475; Hamilton v. Stule, 22 W. Va. 349; Rennick v. Ludington, 20 W. Va. 511; Campbell v. Fetterman, 20 W. Va. 398; Middleton v. Selby, 19 W. Va. 167; Pack v. Hansbarger,
Seeking the limitation, as indicated by decisions, denying exception or exclusion, we find it in perfect harmony with these propositions. Henderson v. Hudson, 1 Munf. 510; Jarrett v. Johnson, 11 Grat. 327; Nash v. Jones, 41 W. Va. 769. In all these cases, claims for relief in equity, resting upon mere verbal contracts and nothing more, have been denied, without reference to the forms of such contrasts or the relations of the parties, the contracts, relied upon, being substantially for the sale of real estate. In the first two, claims of joint purchase were rejected, and, in the other, a claim of purchase by an agent, the alleged principal having paid none of the purchase money. Sug-den on Vendors, Vol. II, top. p., sec. 15, chap, 21, saying: “"Where a man merely employs another person by parol, as an agent to buy an estate,- who buys it for himself and denies the trust, and no part of the purchase money is paid by the principal, and there is no written agreement, he cannot compel the agent to convey the estate to him, as that would be directly in the teeth of the statute of frauds,” is sustained by .a vast array of authority. We observe the same as to the text in 29 A. & E. Ehc. Law. 889, saying: “It is equally well settled that agreements for joint purchases of land, not for the purpose of speculation, whether the title is taken in the name of one for the benefit of all or in the individual names of the parties, are within the statute, and are required to be in writing.”
Joint purchases of land are sometimes upheld, as having been made in pursuance of an existing partnership or an agreement for one, the relation of copartnership constituting the essential equitable circumstance, attending the verbal contract. Floyd v. Duffy, cited; Bond v. Taylor, cited; 20 Cyc. 237';. but we have here not a particle of evidence of such a- relation or ¿greemelíC
The suggestion of immunity from the statute, on the ground that the contract was made before the defendant acquired the legal title and was recognized by him, while holding.the equit
Under these principles and conclusions, we reverse the decree, dismiss the bill and decree to the appellant his costs in the court below as well as in this Court.
Reversed and Dismissed.