95 Va. 32 | Va. | 1897
delivered the opinion of the court.
On the _19th day of September, 1890, W- T. Miller sold to J. L. Hurt and Joel T. Adams, a certain Jot of land designated as lot Ho. 1, Block 9, in the plan of the town of St. Paul, Wise county, Ya., at the price of $1,000. Five hundred dollars of the purchase price was paid in cash, a note given for the balance, payable to Miller twelve months after its date, with interest, and Miller conveyed the lot to them by deed, with general warranty of title, reserving a vendor’s lien thereon to secure the payment of the note. The note not having been paid, though nearly a year past due, and Miller having assigned it to the Bank of Graham, he instituted this suit in the Circuit Court of Wise county, in August, 1892, for the benefit of the Bank of Graham, to collect the amount due on the noté, by the enforcement of the vendor’s lien reserved on the lot. At the second rules taken in the office of the clerk of the court on the third Monday in February, 1893, the defendants Hurt and Adams filed a demurrer and joint answer to the bill, and asked that their answer be treated as a cross bill, and that Miller and the bank be required to answer under oath.
In their cross bill Hurt and Adams ask for a rescission of their contract with Miller; that their note executed to Miller be decreed null and void and surrendered to them, and that a decree be made against Miller in their favor for the $500 cash
To the cross bill Miller filed a very full answer under oath, which is adopted by the Bank of Graham as its answer, in which he denies that Hurt and Adams, or either of them, were induced to enter into the purchase of the lot, to make the cash payment therefor, or execute the bond sued on, or to accept the deed of conveyance for the lot,by any false representations made by him; that he does not remember that either Hurt or Adams asked him anything about the title to the lot, and therefore cannot rememT her what assurances, if any, he made them with reference thereto, but that at the time he thought the title to the lot good, and still thought so, and if he was, in fact, asked about the title by Hurt, he doubtless represented to him before the sale that the title was good, though he thinks it quite likely that, if he was asked about it at all, he told .the exact status of the title, &c. His (Miller’s) answer then sets out that after the sale by Gent, commissioner, to Stratton, and by subsequent conveyances by Stratton and others to whom he had conveyed certain interests in the land, one, John B. Moon, became the purchaser of the whole tract of land, except twenty-seven lots reserved, (among which is the lot in question), at the price of $60,500, and proceeded to have it laid off into streets, avenues, alleys, parks, boulevards, and city lots, the site of the town of St. Paul being thereon, and had most of the streets graded at an expense of not less than $20,000, and was having a public sale of the lots on the day that respondent sold his lot to Hurt and Adams; that the balance of the purchase money due to Gent, commissioner, secured on the whole tract of land, amounted to only about $2,500.00; that the lot in question was one of the first sold of the twenty-seven lots reserved in the deed to Moon, and there
The cause having been removed to the Circuit Court of Bus-sell county, it came on to be heard by that court on the 15th day of August, 1894, upon the bill of complaint filed by Miller for the benefit of the Bank of Graham, the answer and cross-bill of the respondents Hurt and Adams, the answer of Miller and the Bank of Graham to the cross-bill, the depositions of witnesses examined on behalf of the complainants in the cross-bill, the exhibits with the original and cross-bills, an agreement by Gent, commissioner, then filed to release the lot in question from any claim he had thereon for the balance of the purchase money, and an agreement between the parties showing that the balance due Gent, commissioner, was then only $1,615.89. Whereupon the court held that no sufficient cause was shown for rescinding and setting aside the contract in the bill and proceedings mentioned, but that the encumbrance on the lot in question should be removed before the plaintiff, Miller, for the benefit of the Bank of Graham, should have a decree for the $500,00 secured by the vendor’s lien on the lot, and continued the cause to give the plaintiff further time to remove the encumbrance.
It is a well-settled rule that an assignor of a chose in action, though secured by a vendor’s lien reserved on real estate, cannot sue in equity for the benefit of his assignee to collect the debt. The reason for the rule is that equity deals only with the real parties in interest, and if they are not before the court no .proper decree can be made in the cause. Penn. v. Hearon, 94 Va. 773, and authorities there cited.
The Bank of Graham having been made a party to this suit, however, by the cross-bill of the respondents, Hurt and Adams, and having filed its answer thereto, it was proper that the court below should not sustain the demurrer to the bill filed by Idler, for the benefit .of the Bank of Graham.
Neither by their cross-bill, nor in their deposition given in the cause, do appellants state clearly when they first ascertained that the alleged statements of Miller concerning the title to the lots were false; nor do they claim, either in their cross-bill or depositions, that they informed Miller of their cause of complaint prior to the filing of their cross-bill in February, 1893, more than two years after the contract was made. True, Hurt says in his deposition given on August 14, 1893: “When at Wise Courthouse last winter I took Judge E. M. Eulton with me, to Judge W. T. Miller and repeated to him the assurances given as above stated in regard to the title, and he said to Judge Eulton: ‘Yes, it is true I did tell Senator Hurt (referring to deponent) that the title to said lot was absolutely perfect/ and 1 thought so,” yet he does not say that he even then, in the winter of 1892-’3, when his note sued on was more than a year past due, and this suit pending, offered to restore to Miller possession of the lot and title thereto. Appellants do not allege what efforts, if any, they made .to ascertain the facts upon which they
How, when did appellants propose to erect.a storehouse and begin business at St. Paul? Certainly not at some indefinite period in the future, but most assuredly with that promptness necessary to keep pace with the progress and sudden development of St. Paul, which, as the evidence shows, all then thought had a great future as a business centre. One railroad had been completed to the town, another was under construction, with every prospect of completion, and costly business houses, residences, &c., were going up upon the lots that had already been sold off from the tract of land upon which the town site was located. It may, therefore, be said that it was the purpose of appellants to erect a storehouse and begin business on the lot in St. Paul purchased of Miller September 19, 1890, at once, and, if it be true that they were deterred from doing so by discovering the alleged cloud upon the title to the lot, necessarily they were apprised of the alleged defect of title but a short while after
In the case of Hudson v. Waugh, 93 Va. 518, the false representations or mutual mistake alleged to have been made, were as to the amount due on an encumbrance assumed by the vendee of the property, and, although it was shown that the lots purchased were bound by an encumbrance of $4,181, instead of $2,796, and that the vendee waited only a few months after discovering the fraud or mistake before instituting his suit for rescission of the contract, this court held that he was not entitled
A party who intends to repudiate a contract on the ground of fraud, should do so .as soon as he discovers the fraud; for if, after discovery of the fraud, he treats the contract as a subsisting contract, or if, in the interval whilst he is deliberating, an innocent third party has acquired an interest in the property, or if, in consequence of Ms delay, the position even of the wrongdoer is affected, he will be deemed to have waived his right of repudiation. And whenever a party to a contract has a right to elect whether he will avoid it, or treat it as still subsisting, his election may be mamfested by acts as well as by words, and, when once made, is final, and cannot be retracted. 2 Add. on Oon., 772; Kerr on Frauds, 306. Max Meadows L. & I. Co. v. Brady, 92 Va. 71; Powell v. Berry, 91 Va. 568; Morgan v. Glendy, 92 Va. 86; Darling v. Cumming, 92 Va. 521; Slothowe v. Oak Ridge L. Co., decided at the present term.
We have seen that appellants do not even claim to have notified their vendor of their intention to repudiate the contract sued on prior to the institution of this suit; that the only reason they give for not doing so is that no demand was made upon them for payment of their note; that they held title to the lot, and the possession thereof for more than two years without demanding a rescission, although they discovered the cause for wMch they ask a rescission long prior to the filing of their answer and cross-bill in this suit, and before the lot became totally unsalable, as they say. They must, therefore, be considered as having by their acts, after discovering their alleged cause of complaint, made an election to treat the contract as a subsisting contract, which election could not afterwards be retracted.
While in many cases decided by this court, among which are Mays v. Swope, 8 Gratt. 46; Young v. McClung, 9 Gratt. 336;
•We are of opinion that the decrees complained of should be affirmed.
Affirmed.