51 W. Va. 482 | W. Va. | 1902
Minter J. Jackson conveyed a tract of land by the acre as containing one thousand three hundred and seventy-five acres to The Welsh Land Association, a partnership, reserving a lien for a balance of purchase money. Later it was represented to Jackson that upon a survey of the tract it turned out that it contained only one thousand seventy-four acres, and he accepted payment of balance of purchase money on the basis of one thousand and seventy-four acres in the tract, surrendered the purchase money notes and executed a release of the lien as to the one thousand and seventy-four acres. Still, later as the bill states, he learned that in truth there was no such deficiency in quantity, and he brought a suit in equity in the circuit court of Randolph County to recover the purchase money for the alleged
The court overruled a demurrer to the bill. It was based on the idea that as the bill itself showed a settlement between Jackson arid the association, and the surrender of the notes for purchase money and the release of the lien, it presented no case. The bill alleges a mistake of fact .arising from misrepresentation, and a court of equity relieves against such mistake. The bill alleges that Jackson believed the representation as to quantity made to him by a surveyor, and knew not to the contrary, and acted upon a mistake of fact. TJpon this statement the bill is maintainable. I will add that the bill alleges that Jackson, upon that settlement, expressly reserved right to claim the money for the deficiency should it thereafter be ascertained to be non-existent. This only adds further ground for an appeal to equity.
Under this demurrer it is argued that the court erred in overruling it, because the statute of limitations barred a personal decree; but the bill shows that the last purchase money note had not become barred when the suit was instituted. It is not claimed, and cannot be, that limitation affects the lien. The lien was released only as to the one thousand and seventy-four acres; but if it had been a total release, and made under mistake of fact, and especially with that reservation, equity would relieve against it. There is no error in overruling the demurrer.
The vital question in this case is whether the deficiency exists. This being purely a question of fact, we arc not strictly called upon to give any reasons for our conclusion, and certainly not to enter into 'the details which the great volume of evidence would justify. I might write pages upon the evidence upon dozens of lines and dozens of corner trees of the thirty lots into which the well known Davenport Survey of thirtj'’ thousand acres granted June 25, 1794, was divided by Robert Ervin, deputy for Minter Bailey, commissioner of delinquent and forfeited lands of Lewis County in 1839 or 1840, and sold by such lots by decree of the Circuit Superior Court
Let us take up the division line between lots 19 and 30, the important consideration in this case. I have come to the conclusion that the evidence shows by decided preponderance that a Spruce, sometimes called Hemlock, shown on the plat of Marstellor, surveyor of Bandolph County, at letter M on his plat is an original corner of lots 19, 20, 29 and 30 in the division of the Davenport Survey made by Ervin preparatory to a sale of the land under sáid decree as delinquent or forfeited. That large Spruce is plainly marked for such corner, and its annulation counted 56 years, thus suiting the date of the survey made by Ervin. A Spruce is called for at this point by the deeds from Bailey for a corner of lots 19, 29 and 30, though a Bed Oak is called for, likely by mistake, for lot 20. All those lots must have the same corner. Marks on that tree stamp it as a tree made by Ervin as a corner. From that tree the divisional line of five hundred and fifty poles between lots 19 and 30 is established by many marked threes corresponding in age with Ervin’s survey. A maple and gum are called for at the end of the line running from that spruce between lots 19 .and 30 to the outside line of the Davenport Survey, and it is relied upon with confidence by the plaintiff that the absence of these trees will dispute this line; but James Pickens is positive in his statement that he saw these trees marked as a corner, one of them beginning to fall against another tree, and as a road and tram road have been made just there, the road just where these trees stood, this will plausibly account for their disappearance. What right have we to disregard Picken’s specific statement. And besides this, though these trees be not found, the spruce being indelibly established, we run the
If this were all, the case would end here; but it is by no means all of the case. We must go elsewhere upon the survey. Then, we will go from the southern end of the Davenport to its northern end, to a sugar comer found on Marstel-ler’s plat. It is an established corner in Ervin’s divisional survey. Nobody disputes that proposition in this case. We find running from it a line passing a birch and beech on an island in the Buckhannon river, and thence going on to a maple and red oak, and some evidence goes to show that it continues marked to a “chestnut. That sugar stands on an
When the Welsh Land Association learned that the boundary of its deed from Jackson did not take in several hundred acres of land which it thought it did include, it purchased of Cris-lip a part of lot 19, so as to take in the land in question, and sets up as a defense against Jackson’s claim adverse title to the disputed ground; but as the two lots are coterminous I do not see that the question of limitation arises. Adverse possession is not proven; and if it could be said that there is any evidence of it, there is no proof of its exact limit, and as the title to lot 19 does not include the ground, an enclosure of particular land must be shown. A mass of authority is cited to show that a purchaser will not be compelled to take a doubtful title; but that authority applies to executory contracts, not where a deed has been accepted passing legal title. There a different law applies, as shown in Spencer v. Sandusky, 46 W. Va. 582, and Bennett v. Pierce, 45 Id. 654. Where a deed has been accepted, the purchaser cannot refuse to pay purchase moneys, unless his grantor is insolvent, or the title is»proven to be bad, or a suit endangering it is actually pending, or threatened, and in the last case the grounds of suit must bé given, and they must be such as ought to cause a reasonable man to fear loss of his land. McClaugherty v. Croft, 43 W. Va. p. 272. The answer must set up some of these facts. The answer in this case does not do so. It simply charges, in the most general way, that the land “is claimed adversely by parties other than parties hereto, viz: D. S. Thomas claiming under Chris-lip and A. G. Gilfin, and plaintiff Jackson can not put defendants in possession thereof, or confer title to the same.” This answer is entirely defective under this head. We cannot consider this defense of bad title, even if the evidence sustained it,
Decree affirmed.
Affirmed.