59 W. Va. 91 | W. Va. | 1906
Lead Opinion
S. Floyd Hoard and Pitt Hoard sold to the Huntington & Big Sandy Railroad Company land for right of way for the railroad through the town of Geredo bjr the following contract:
“To the Huntington & Big Sandy Kailroad Company: We sell you right of way for your road through our property in Ceredo — for the sum of ten thousand dollars — to be paid one-third cash when deed is made, and the residue in one or. two years thereafter, with interest on deferred payments, reserving vendor’s lien in said deed to secure deferred payments. The lands herein proposed to be sold and conveyed have heretofore been agreed upon by the parties hereto, and as soon as the proper description of said property can be had we will incorporate said description, by metes and bounds, in a deed of general warranty and convey the same to you— * * * We, together with your engineer, to prepare said descriptions at the earliest practicable convenience.
You can at once begin the construction of your road over said property as aforesaid, pending the preparation of said descriptions as aforesaid. Pitt and S. Floyd Hoard.
This proposition is accepted. Huntington & Big Sandy Railroad Co. By Z. T. Vinson, President.”
This contract bears no date, but was -in March, 1892. The railroad company at once took actual possession and built its road on the land, and has ever since occupied it with its road. The contract says that the engineers of the company and the Ploards should prepare a description of the land for incorporation in the deed from the Hoards to the company. Sometime after this contract was made an engineer on the part of the railroad company did furnish to said Hoards a map giving description to go into the deed; but the Hoards refused to agree to it. By some arrangement the control of the Huntington & Big Sandy Kailroad Co. passed to the Ohio River Kailroad Co., and then to the Baltimore & Ohio Railroad Co.
However, this seems immaterial. The matter rested in unsettled condition until 28th July, 1902, when the Hoards brought a suit in chancery in the circuit court of Wayne county against the said three railroad companies, to enforce the specific performance of said contract of sale, to recover
No response to the tender was made to the Hoards. With the bill there was tendered a deed by the Hoards to the Huntington & Big Sandy Railroad Co. for the land. The Huntington & Big Sandy Co., and also the other companies, filed answers objecting to the deed tendered with the bill on the ground that as to one of the tracts it conveyed with only special warranty, whereas the said contract demanded general warranty; and objected to being compelled to accept the proposed deed because of its want of description of the seven parcels of land specified in it sufficiently certain and definite for the identification of the land. The court entered a decree enforcing the contract against the Huntington & Big Sandy Railroad Co., giving a decree for the purchase money, $10,000, with interest from November 15, 1901, the date when the Hoards sent the deed to the Ohio River Railroad Co.
From this decree the Huntington & Big Sandy Railroad Co. appeals.
Much law is cited to show that before equity will enforce performance of a contract that contract must be definite and certain, not only in its terms, but the contract must be certain, in a legal point of view, as to the property conveyed. Ensminger v. Peterson, 53 W. Va. 324. This is sound law; but the question before us is whether the deed tendered is certain. We are not inquiring whether the contract is sufficiently definite. No point is made as to that. But the question which we have to deal with is, whether the deed which the court forced upon the railroad company contains that definite description to which the purchaser is entitled. If there is any difference between the contract up for enforcement, and a deed of conveyance, in respect to certainty of description, the deed requires the fuller and better description. I think there is such difference. I think that the grantee has a right to a description fuller, more precise and definite, than is required in a preliminary contract. I will
“BEGINNING at a point in the west line of First street west of Main street, the center of which street is located by two stone monuments with brass or copper wire set in same, one of said monuments being in the intersection of the center lines of said First street west of Main and B streets, the other being in the center of said First street west of Main street and distant about 2184 feet southerly of the one above mentioned in center of First street west of Main street and B street, both monuments recently located by Chas. Silliman, C. E., and the first parties hereto. Said beginning point is distant thirty feet northerly from said center line of railroad,
The grave question at once arises, Where is the beginning of Tract No. 7 ? It is on the west line of First street. At what point on that line? If the deed had located that point-at a certain distance from those stone monuments, it would have been sufficient. We must not take the words “about 2184 feet” as descriptive of the beginning point of the right of way on the line of First street, because that is the distance between the two stone monuments. There is no point of beginning designated on the west line of First street; no guide to it. The description says, ‘ ‘said beginning point is distant thirty feet northerly from said center line of railroad”; but where is the center line? It does not mean the center line between the railroad rails; for the right of way extends thirty feet out from the center line each side. Now, the center line, like a tree or a rock, must have a point of location, so that it can be found to start from. This center line has no location. One place will suit it as well as another. One place on the west line of First street will suit for that beginning corner as well as another. There is no certainty here, no means to definitely locate either the beginning point or the center line. If a stone had been planted under the surface, for instance, we could appeal to it in years to come; but we have not that recourse. A civil engineer swears that he cannot locate the right of way of the company under this deed. It seems to us uncertain. The description of Tract No. 6 seems to be infected with the same uncertainty, if not other tracts. A plat referred to in the deed does not remove the objection. Besides, several stations, one the beginning of Tract No. 2, are left blank as to number in the deed. I am aware that Jones on Conveyancing, section 323, says that “The office of a description is not to identify the land, but to furnish the means of identification,” and that it is only when it remains “a matter of conjecture what property is intended to be conveyed, after resorting to such extrinsic evidence as is admissible, that the deed will be held void for uncertainty in the description of parcels. If the description is sufficient to allow of identification by actual survey, it will be upheld, however indefinite it may seem to be. But if the
The railroad company complains that the court compelled it to pay interest from November 15, 1901, the date when the Hoards mailed the blank deed to the Ohio River Railroad Company. The claim of the appellant is that by the contract the first payment was not to be made until delivery of a proper deed, and a proper deed has never been delivered. The court properly held that the deed filed with the bill was a non-compliance with the contract, in that it contained a special warranty as to one of the tracts. This defect, as also uncertainty of description, constitutes the argument by the appellant against the allowance of interest
Therefore, we reverse the decree and remand the case to the circuit court with directions to cause a survey to be made, or in some way to fix proper and sufficient description of the said land, and to enforce a specific performance of the contract after providing for a proper deed from the Hoards to the appellant company, containing proper description.
Rehearing
ON REHEARING.
A rehearing of this case only confirms the conclusion expressed in the above opinion. The theory of the company is, that it was first the duty of the Hoards to make a deed, and not doing so, they were in fault, and that until the deed was made there could be no interest. But was it any more the duty of the Hoards to come forward in reasonable time with a deed and ask payment, than it was the duty of the company to come forward with the money and ask a deed? One took one obligation on itself, as well as the other took another obligation. Gas Co. v. Elder, 54 W. Va. 335. Page on Contracts, Vol. 3, section 1470, says: “Concurrent covenants are those which by the terms of the contract are to be performed at the same time by each of the parties bound to perform them. Either party must be ready to perform to put the other in default. Thus under a contract for a sale of reality if no stipulation is made as to the order of time at which the deed is to be delivered and payment made, these acts are concurrent. Neither party can treat the other as being in default either for the purpose of con
We therefore repeat the decree heretofore made, reversing the decree and remanding the cause for further proceedings in accordance with principles stated in the former and this opinion.
Reversed.
Dissenting Opinion
(dissenting in part.)
I concur in the decision of this cause, in so far as it reverses the decree of the circuit court, and remands the cause, on the ground that the description in the deed tendered is insufficient, but I cannot agree to that part of the decision which requires the company to pay interest on the purchase money from the time it entered into possession of the property under the contract. I might almost say that for the reason I am willing that the decree shall be reversed, on account of the insufficiency of description, for the same reason I am unwilling to concur in the other point decided, for it seems to me anomalous to say that under the circumstances of this cause, the grantors, although they have not shown themselves entitled to decree for the purchase money because they have not tendered a proper deed, yet that they are entitled to interest on the purchase money from the date of the contract, because at that time the company took possession. I realize full well the force of the position taken in the opinion of the Court, that the general rule is that a vendee is entitled to interest from the time possession is taken of the premises by the vendor, but this rule is subject to exceptions, which are as firmly imbedded in the law as the rule itself, and from an examination of the authorities relied upon to support it, it will be seen that in no casein which this doctrine is announced, has the court had before it a contract such as is here presented. In none of them had the parties stipulated as to the payment of interest, but the vendor had been in default as to the payment of the principal, and the court attached interest as a matter of equity in the absence of such stipulation. This differentiation runs through all the cases. The contract, in this respect, is as follows: ‘‘We (the plaintiffs) sell you right of way for your road through our property
Nor does the case of Steenrod's Adm'r v. R. R. Co., 27 W. Va., when applied to the circumstances here, support the position taken. The fifth point of the syllabus is: “The general rule in ordinary contracts for the sale of land, which contain no stipulation for interest and do not specify any day for completion, is that the purchaser is liable for interest on the purchase money from the time he takes possession, especially if he has received rents and profits.” And the court says,'showing that it was, in that case, the duty of the vendee to tender the money before being entitled to a deed, “Referring to the agreement we find that it provides that on payment of the damages the vendor agrees to convey the land on reasonable demand.” The court also says: “The contract is that the payment is to precede the conveyance, and the latter is to loe made only upon reasonable demand after the payment.” Yery different is this case. The rule is well stated in Jourolman v. Ewing, 80 Fed. Rep. 608: “But the question of interest in case of suit brought upon a contract wherein the payment of interest is made the subject of express stipulation, and is thereby made a part of the obligation, stands upon a different ground. In such case it is made a matter of agreement between the parties. They are supposed to have considered all the circumstances bearing upon the propriety of their stipulation, and this term of the contract is as binding as any other. The courts have no right
In Mayo v. Purcell, 3 Munf. 241, the court held that a purchaser of land being thoroughly informed of defects in a vendor’s title, and agreeing nevertheless to pay interest on the purchase money from a certain day, would not be relieved from paying such interest, on the ground that he could not get possession of a part of the land, which he knew at the time of entering into the agreement, was held by another person.
In Hepburn v. Dunlop, 1 Wheat. 179, the vendor was indebted to the vendee, and the sale was made to pay the debt. This was in 1799, but a good title was not made to the vendee till 1809. The court held that the vendor must pay interest on the debt till that time; in other words, the purchaser paid no interest till he got a good title.
In Lofland v. Maull, 1 Del. Ch. 359, by a contract for the sale of land, the purchase money was made passable in future installments, and there was no stipulation in the contract as to the time for the delivery of the possession of the land. After the sale, and before all the installments had become due, the purchaser, with the vendor’s consent, entered into possession. It was held that he did not thereby become chargeable with interest on the unpaid purchase money from the date of such possession, in the absence of a stipulation to that effect in the contract of sale.
In Birdsall v. Waldron, 2 Edw. Ch. R. 15, the Vice Chancellor decided that the seller, although in possession, would not be bound to pay his money into court before obtaining a title, where he went into possession with the understanding that he was not to pay it until he had a title. And it was also said that if there had been delay in the performance, without the default of the purchaser, he would not, although in possession, be obliged to pay the purchase money. '
In Blount v. Blount, 3 Atk. 636, it is said that neither in the purchase of an estate in possession, or in reversion,
“The law creates an obligation to pay interest, only where the debtor is put in default for the payment of the principal; and in such a case it runs only from the default.” Reid v. Duncan, 1 La. Ann. 265. See, also, Withworth v. Hart, 22 Ala. 343; Gay v. Gardner, 54 Me. 477; Hubbard v. Charleston, &c., R. R. 11 Metc. (Mass.) 124.
Except where the parties themselves have failed to provide for the payment of interest in the contract, no court has pretended to fix an interest charge. And in the cases in which a purchaser has been held to pay interest, there was either no contract, or the purchase money had become due. Here the purchase money did not become due until the title was made. The parties expressly stipulated that only the deferred payments should bear interest.
The second point of the syllabus of the opinion makes no reference to that part of the contract which provides that interest shall be paid upon the deferred installments of purchase money. This provision is a material one, and cannot be done away with by ignoring and not considering it. But in the opinion it is said, “That clause of the contract saying that the first payment should be made on the delivery of the deed was intended to define the date of the first payment, and had not intent actual as to the interest.” This might be so, if nothing else was said, but if it had not such intent, why add, after providing that the first payment should be made on execution of the deed, “residue in one and two years, with interest on the deferred payments?” If it was not the intention that only the deferred installments should bear interest, and then only after the delivery of the deed and making of the first payment, why say so in language that is unmistakable? The same clause that fixes the time of the first payment as of the delivery of the deed, expressly says that the deferred payments shall bear interest. Certainly it cannot be said that the parties have not the right to agree as to
While I do not concede the correctness of the theory advanced in the opinion filed on rehearing, that the covenants were dependent, and that it was as much the duty of the company to demand a deed as it was the duty of the Hoards to make and tender it, yet, on February 16, 1893, the engineer of the company prepared a map and forwarded it to S. Floyd Hoard, with the following letter of transmittal: “Enclosed find map with right of way put on and colored. This will give sufficient data for description I think. I hope you will prepare it and send to Yinson to incorporate in deed as soon as possible.” After receiving this map, was it not the duty of Hoards to prepare and forward description, as requested? Had not the railroad company done all that was required of it, under the terms of the contract, granting that it was its duty to prepare description? Not having complied with, the request .of the engineer, and not having made any pretense of tendering a deed until the lapse of so long a time, the plaintiffs are not in a position to make the demand they are now making. By thus early complying with the provision of the contract, requiring them to co-operate in the preparation of the deed, even if it could be so construed as to make it the duty of the company to co-operate, the duty to complete the transaction was cast upon the Hoards. This they never did, nor pretended to do, until 1901, when they tendered a deed which contained a description of their own making, to which the engineer of the company refused to agree, and which he had no hand in preparing, and expressly testifies that the description offered by the plaintiffs is such that it is impossible to locate the land conveyed upon the ground under it, and the Court, in its opinion, finds that this is so, and that the land cannot be sufficiently identified. It is said that the delay was not contemplated by the parties. Possibly so. But who must suffer for the delay? Certainly the railroad company should not be made to do so, after having prepared and forwarded description, with the request that it be mailed to its attorney.
Yiewed in the light of all the circumstances surrounding