56 W. Va. 610 | W. Va. | 1904
Lead Opinion
Sampson Snyder, being the owner of a large amount of real ■estate, consisting of several tracts of land situate in Randolph county, and indebted in a sum exceeding $16,000.00, for which his lands had been decreed to be sold, applied to Robert Liskey, ■John W. Liskejr and W. H. Rickard, all of Harrisonburg, Tir-.-ginia, for a loan of sufficient money to pay off the debts. This application was made in the latter part of the year 1898, and resulted in an arrangement whereby the land was to be permitted to go to sale and be purchased by Rickard and the Liskeys, but to remain in the possession of Snyder under a contract of purchase from Rickard and the Liskeys at a price $3,000.00 in excess of the purchase money, under the judicial sale, and to be paid by Snyder in four installments, to become due in six, twelve, eighteen and twenty-four months, respectively. This arrangement was consummated on the 23rd day of January, 1899, when the lands were sold to Rickard and the Liskeys under the decree of sale, for the sum of $16,660, of which $1,666 was paid in cash and for the residue of which four notes of $3,748.50 each, payable in six, twelve, eighteen and twenty-four months from date, were executed. On the same day, Rickard and the Liskeys entered into a contract under seal whereby they sold the land to Snyder for the sum of $19,660, of which $6,164.50 was to be paid in six months from the elate of the' contract and the residue in three equal installments payable in twelve, eighteen and twenty-four months from date, all bearing interest. By this contract Snyder bound himself to pay, in addition to these notes, the expenses of Rickard and the Liskeys in coming to, and returning from, Beverty, and such attorney’s fees as they had paid, or agreed to pay, in connection with the purchase; also to keep the builidngs on the real estate fully
The record shows three letters written by Snyder to W. H. Rickard, bearing date December 28, 1898, and January 5 and -11, 1899, representing that $15,000 or $16,000 would relieve the land, and appealing to Rickard to obtain a loan of that amount for him and offering the land as security. On the 11th day of January, 1899, Eicltard wrote Snyder, saying he had seen several gentleman whom he could interest in Slider’s behalf and that he felt certain that if the property was worth what Snyder had said it was, and $15,000 would make the title clear, they would buy it at the price of $15,000 and resell it to him and give him an extension of time for such an advance as was reasonable, but they "would not go security nor lend money out of the State of Virginia. Further on in the letter, it r-s said, “Of course you would have to pay more for the, property, say $3,00,0.” There is no controversy as to the amount of the advance, hut it is insisted by Snyder that this transaction, although an absolute sale om its face, was in fact a mere loan of money by Rickard and the Liskeys arid that the papers executed must be regarded as constituting, iri equity, a mortgage securing the repayment of the money. Snyder insists that he paid off some debts and reduced the amount charged upon the land to the sum of $16,600 for the express purpose of bringing the-indebtedness within such limits as would induce the purchasers to take the land as a security for their advancement to Mm, and
Snyder having failed to meet the payments as provided in the contract of sale, an agreement under seal was made on the 6th day of October, 1899, between Rickard and the Liskeys on ■one side and Snyder and his wife on the other whereby, in consideration of one dollar and that Rickard and the Liskeys surrender unto Snyder the bonds and deed of trust aforesaid, Snyder and his wife released all their right and title to said real estate and also all claims and demands against the vendors or said property as growing out of any transaction whatever, and it was further provided that “neither party hereto shall have any ■claim or demand against the other as growing out of the transactions of January 23', 1899.” On the same day another contract under seal was executed, whereby Rickard and the Liskeys leased the real estate to Snyder for a period of one year, Snyder agreeing to pay them $600 as balance due on rent for the preceding year and $1,200 as rent for the year expiring October 5, 1900, the receipt of all which rent was thereby acknowledged as having been paid by the sale by Snyder to the Liskeys of 20 two-year-old cattle and 20 one-year-old cattle and ten steer calves, all on the premises and stated to be in the possession of the Liskeys, and in addition thereto an open expense 'account of $78.76. By this contract, Snyder and wife obligated themselves to keep the above named cattle on the premises free of charge for twelve months, to take care of the property, to pay all back taxes for the years 1897 and 1898 and the taxes for 1899, the latter to be paid by lessors at end of the year, to make such repairs to buildings and fencing and to cut such brush etc., as should be agreed upon bj the parties, and keep a correct account -for final settlement. The final clause of this agreement reads as follows: “It is further agreed by first parties that if second parties will take good care of premises as above mentioned that they shall on Oct. 5, 1900, by the repayment of $1,868.76, repurchase the personal property, cattle,
On Oct. 1, 1900, five days before the expiration of the lease, the following receipt and agreement was executed by Rickard, the Liskoys and Snyder and his wife, 1Y. II. Rickard signing for Robert Liskey and Sampson Snyder for Sirs. Snyder:
“Received of Sampson Snyder and Elizabeth Snyder seven hundred and eight, 78-100 dollars, paid as follows: $62.95 in pasturing C. T. Painter’s cattle; $108.85-100, do D. C. Reherd; $60.40, do. J. W. Liskey, and the delivery of eleven cattle for $476.85, all to be applied as a credit upon rent due to October 6, 1900, or to be credited to Sampson Snyder and Elizabeth Snyder on their rental contract, dated October 6, 1899. It is the purpose and intent of all the parties hereto that the above credits are to be applied toward redeeming the cattle as mentioned in the contract of rental dated October 6th, 1899, and signed by Robert Liskey, W. II. Rickard, John Liskey, Sampson Snyder and Elizabeth Snyder, and this receipt is to be used in connection with said contract.”
On the 20th day of October, 1900, two other papers were executed. One was a receipt to Snyder for sixty-eight cattle at the price of $1,990.26, to be credited on the rental under the contract of October 6, 1899, and on the rent for an extension of the' lease to March 1, 1901, which extension was made by another paper, executed on the 20th clay of October, 1900, fixing the rent for the time of the extension at the gross sum of $425. The account between Snyder and the other parties as stated by Mr. Rickard, who seems to have kept the accounts-between the parties, charges Snyder with $2,225.00 rent, $437.-77 back taxes, and $67.76 balance of expense account, total $2,730.53, and 'credits him with $709.05, as of October 1, 1900, ancT $1,990.26, as of October 20, 1900, total $2,699.31, leaving-a balance due from Snyder of $31.22. Snyder files an account against the other parties, amounting to $2,861.57, most of the items of which are included in the account as tated by Rickard. The state of this account is not important and need not be settled here, but it is referred to as showing the relation of the parties and their transactions with reference to the land forming the subject of this controversy, and as tending to cast some’ light upon the real question in the cause.
Early in March, 1901, Reherd and John W. Liskey went to-Snyder’s home for the purpose of taking possession of the land, taking with them a man whom they expected to occupy the residence and take control of the lands for them. Snyder refused to give them possession and, on the 19th day of March, 1901, Reherd, Rickard and the Liskeys presented their bill in equity to the judge of the circuit court of Randolph county, setting forth their purchase of the lands and resale thereof to Snyder, Snyder’s release and the two leases executed, under which Snyder was holding as their tenant, alleging the expiration of the leases, Snyder’s refusal to give possession, his insolvency, the annual rental value of the land to be not less than $1,200, their necessity of having immediate possession by reason of their having about 400 head of cattle which they intended to .pasture on the land, and the commission of waste by Snyder in that he had a sawmill on the land and had cut and manufactured timber from the land into lumber of the value of six or seven hundred! dollars and was continuing to take the timber from the land; and praying that Snyder be enjoined from cutting any timber on any of the land, from manufacturing the same into lumber, from removing the same from the land or selling it, from cultivating any of the land, pasturing it, cutting hay upon it, gathering' and disposing of the fruit, exercising actual ownership over it, collecting or receiving rent from any of the occupants of the land and from
Snyder answered the bill setting forth the facts hereinbefore stated and claiming that, although the transaction of January 23, 1899, was, on its face, a contract of sale, it was, in reality, a loan from Rickard and the Liskeys to him, he having agreed to pay them $3,j)00 for the use of their money. As to the release execúted October 6, 189$, he averred that, at the time it was executed, it was expressly understood and agreed that it was hot to work a relinquishment, in any respect, of his rights as owner of the lands, or to make sale of the timber thereon for the purpose of raising money with which to pay for the land. The principal allegations of the answer in respect to the' lease are as follows: “That solnetime about October 6th, 1899', plaintiffs, Robert Liskey, John W. Liskey and W. H. Rickard, came to the respondent, at his home near Harman, far from his counsel,'and requested him to give them a statement by which they Could more effectually raise money to carry on business enterprises which they had then before them, and claimed that they would stand by the contract, as stated in Exhibit ‘E’ in plaintiff’s bill, and would allow him all the time necessary to repay said loan, and would allow even more time if he would execute the statement than otherwise; they also represented that they wished to take in a partner to strengthen their standing and promote their business; they also represented that they had engaged or were about to engage in some large business enterprises which would require a great deal of monejr, and, on that account, they would be obliged to borrow large sums of money. And they claimed and represented that while they did not want respondent’s property, and did- not expect him to pay any faster than he was doing, still the situation of their business with him was such, as they claimed, as to impair their credit, and, on that account, they demanded a statement from respondent showing that they were the owners of this vast estate and not the respondent, whereby they might be able to get such -credit as they might need for their own purposes, and also to enable them the better to carry the loan held by respondent, and on that day they presented to him and requested the signature of himself and his wife to the paper-writing referred to in the "plaintiffs’ bill as Exhibit
To this answer the plaintiffs filed a special replication, the most material features of which are a denial of the charges made in the answer respecting the proposed sales of one of the ■tracts of land, prior and subsequent to October 6, 1899, and the refusal of the plaintiffs to accept or agree to the offers of
Depositions were taken and the cause was submitted on the-7th day of May, 1901, when the court entered a decree by which it was “adjudged, ordered and decreed that the injunction heretofore awarded in this cause be and the same is hereby perpetuated; that the plaintiffs do recover of the defendants the-said real estate specifically mentioned anil described in -their-bill in this cause filed, and that a writ of possession do issue-directed to the sheriff of this count)'- requiring him to pláce the-plantiffs in possession of sáid real estate.” From this decree, Snyder has appealed.
The pleadings, evidence and decree must be viewed in the light of the relations which the parties sustained to one another in respect to the transactions and the property involved in the cause. Whether Snyder can have relief from the release executed by him, upon the ground set forth in his answer, which prays affirmative relief against the plaintiffs, assuming that the-allegations he makes of representations as to the use to be made-
In equity, the vendor, under such conditions, is treated and regarded as a trustee holding the legal title to the land for the benefit of the purchaser, and the purchaser is treated as a trustee holding the purchase money for the benefit of the vendor; and, although the pleadings in a suit to compel specific performance •of such contract differ from the pleadings in a suit to redeem from a mortgage and enforce an express .trust, the purposes sought, and results attained, by these different bills, are substantially the same. The vendee, mortgagor, or beneficiary of the trust, as the case may be, calls upon a court -of equity to invest him with the legal title, but is allowed te do so only upon condition that he pay the purchase money or loan or perform such other duty as he is bound in equity or by his contract to perform. The position that in equity the trust relation is regarded as existing between the vendor and vendee under a contract of sale is sustained by numerous authorities.. 2 Lorn. Dig. ch. 4, s. 11; 1 Sug. Vend., top p. 270, bot. p. 175; Atcherly v. Vernen, 10 Mod. 518, 527; Green v. Smith, 1 Atk. 572, 573; Moore v. Burrow, 34 Barb. 173; Wickham v. Robinson, 14 Wis. 493; Kidd v. Dennison, 6 Barb. 9; Swartout v. Burr, 1 Barb. 495; Fouda v. Sparrow, 46 Barb. 109; Craig v. Leslie, 3 Wheat. 563, 578; Van Wick v. Allinger, 6 Barb. 511; Egerston v. Peckham, 11 Paige, 359; Linscolt v. Buck, 33 Me. 530; Force v. Dutcher, 2 Green (17 F. J. Eq.), 165; Kreig v. Ruckman, 6 Green (N. Y.) 599; Scarlet v. Hunter, 3 Jones Eq. (N. C.) 84; Taylor v. Kelly, 3 Jones Eq. (N. C.) 240; Toft v. Stephenson, 1 De G. M. & G., 28; Reed v. Lukens, 44 Penn. St. 200; McKechnie v. Sterling, 48 Barb. 330; Sutler v. Ling, 25 Pa. St. 466; McCreight v. Foster, 5 L. R. 612; 2 Story Eq. Jur. 550, s. 1, 212.
Unless time is of the essence of the contract here, the equity of the defendant at the time he signed the release was analagous to that of a mortgagor in default. “In all ordinary cases of contract, equity does not regard time as the essence of the agreement. In all ordinary cases of contract for the sale of land, if there is nothing special in its object, subject matter, or terms, although a certain period of time is stipulated for its • completion, or for the execution of any of its terms, equity treats the provision as formal rather than essential, and permits the party who has suffered the period of lapse to perform such acts after the prescribed date, and to compel the performance by the other party notwithstanding his own delay.” Eom. Eq. Jur.,, s. 14=08., In the note to this section, it is said: “Time may be made essence by express stipulation. Ho particular form is necessary, but
By the execution of the release of October 6, 1899, Snyder gave' up his right to call upon the plaintiffs in a court of equity for the specific execution of their contract, a right somewhat ■similar to the right of redemption held by a mortgagor, as has been shown. Under such circumstances, equity requires, on the part of him who obtains a release, or conveyance, of the equity ■of redmeption, the utmost fairness and frankness, especially where he pays nothing or an inadequate price for what he receives, The relation is regarded as, in some degree, confidential. Therefore, if it be found that in obtaining this release, the plaintiffs resorted to any indirection or held out 'any delusive hopes ■or assurances by way of inducement, it cannot stand and tho parties must be placed in slatu quo. In speaking of such transactions between mortgagor and mortgagee, 1 Bigelow on Frauds, at page 347, says: “Principles are applied almost as stern as those which govern where a sale by a cestui que trust to his trustee is drawn in question. To give validity to such
Hoth withstanding the. general rule in this eotmtfy tliat the burden is upon the mortgagee to show that in obtaining a conveyance or release of the equity of redemption, lie acted with fairness and took no advantage, it is held that, in order -to correct or reform a written instrument, or establish a declaration on the part of the mortgagor at the time he executed the mortgage that the equity of redemption should pass to the mortgagee, or that by a subsequent parol agreement the mortgagor surrendered his rights, the evidence must be plain and convincing beyond reasonable controversy, and if the proofs sure doubtful and unsatisfactory, the writing will be held to express correctly the intention of the parties. Howland v. Blake, 97 U. S. 624; Hoffman v. Ryan, 21 W. Va. 415; Van Gilder v. Hoffmna, 22 W. Va. 1; Lawrence v. Dubois, 16 W. Va. 443; Davis v. Demming, 12 W. Va. 246. Here is an apparent, but not a real, contradiction. The burden is on the party claiming the relation of mortgagor-to establish it. He must show that he was mortgagor -and the other party mortgagee. Then, if it appears that the latter has acquired the equity of redemption, the burden shifts and it' devolves upon the grantee to show that in procuring the conveyance or release he acted fairly and paid full value.
It is insisted here that the'parol evidence offered by the defendant is inadmissible, because in violation of the rifle forbidding the contradiction of a written instrument by parol evidence. But it is well settled thaf in this and the similar cases above named, such evidence is admissible. It is admitted, not to contradict or yary the terms of such instrument, but to establish a constructive fraud, viñafing the instrument, or a
Constructive fraud on the part of the plaintiffs, as defined by the foregoing authorities, is abundantly estáblished by the evidence. It is disclosed by surrounding circumstances, conduct of parties, direct testimony and admissions. As has been shown,, it is important to ascertain whether an adequate price was paid for the equity released. Nothing whatever was given for it here. The transaction was, on its face, a rescisión of the contract of sale, pure and simple. The defendant’s right to have specific performance was valuable. According to the testimony of the defendant, the land was worth considerably more than the debt, although when first offered at judicial sale, the highest bid was less than $15,000. The quantity of the lanS. was large, amounting to between three and four thousand acres, of which a good deal appears to have been in good condition for grazing, and a -large portion covered with valuable timber. It is-•charged in the answer and supported by the evidence of the defendant that the land was purchased' by the plaintiffs at a great deal less than its value.. The averment of the answer was that it was purchased at a price, recognized by the parties to be less-than one-third of its actual value. In the replication filed by the plaintiffs, this averment is denied, but it is not shown in the replication or by any testimony introduced by the plaintiffs,, that the value of the land was not greater than the amount for which it was resold to the defendant. It is not specifically-denied in the pleadings. In applying to plaintiffs for help-,. Snyder had represented his property to be worth $40,000 or $50,-000, and requested them to verify his statement at his expense. Some investigation was made.. Eickard wrote him that' if his indebtedness was not over $15,000 and his property wás worth what he claimed it was, the money would be furnished and the-property purchased and resold to him at an advance of $3,000., and it would then be very cheap. This plan wás executed without change -except that Eickard had to join the Liskeys to induce them to undertake it. Beyond Bickard’s statement' that the Liskeys were not very well satisfied with the result of the-investigation and refused to make the purchase unless he wduld join them, there is no testimony contradicting that o'f Snyder to the effect that the property was worth more than the debt..
Concerning this transaction, Snyder sajs they came three or four days or more before the paper was signed, and induced him to sign it bjr representing that they needed some money in their business and had been compelled to borrow money, by reason of which their credit had become impaired, and if he would execute the release it should not interfere with him, and he should have the land back in the same manner as originally agreed upon.
He saj^s they were all there and talked about this release for three or four days before the arrangement was consummated and that he entered into it by reason of the fair promise made to him and some persuasion on the part of his wife, who had the utmost confidence in the plaintiffs, and with the understanding that his rights were not to be impaired and that he should have longer time in which to pay the money. He says they said they would give him a copy of the writing, but that, as soon as it was acknowledged, they left hurriedly without giving the copy, saying they wanted to get as far as Franklin that day. Elizabeth Snyder, wife of the defendant, says the release was talked about for several days and that the ¡olaintiffs claimed they needed it on account of some of their business dealings, and that, if they got it, they could give her husband more time on the mpney he owed them and that she heard Rickard say in the presence of the others, in reference to the release, that it should not in any_yray interfere with the right of her husband to redeem the land, but that they'would "give him all the Jaime he would ask and more. Nettie Harman, a daughter of the defendant, says she was not present on the day the release was signed, but that she had stayed at her father’s house the night before it was signed, and when the release was under dis
On October 10„ 1899, four days after the release was executed, Relierd wrote Snyder a letter in which he said, among other things, “I told you when I was at your place that the Liskeys and W. H. Rickard wanted me to join them in the contract in case they had to raise the money to pay for the land; they were after me again as we were coming home.” He then asked what he should do about it and expressed a willingness to do whatever Snyder should think best. As a witness he admits the truth of the matter set forth in the letter, and adds that he was requested in May, 1899, to join in the contract. Under date of October 30, 1899, Reherd, in repty to Snyder’s letter which does not appear in the record, wrote as follows: “I received your letter of the 25th and was sorry to hear of the terrible fires you have had and hope you have had rain by this time. I saw Mr. John Liskey and W. H. Rickard, and they said I should tell you they would treat you all right about the redemption of your land in a year from now, and that you should not give yourself any une&siness in the, matter.” In explanation of this letter, he says, on the witness stand, he should have used the word “resale” instead of “redemption.” Being examined about it before its production, and lead to believe it contained the word “authorized,” he said he should have used the word
On the 9th day of October, 1889, three days after the execution of the release, Snyder wrote Rickard and the Liskeys, asking what he should do about sowing grass seed, clearing’ ’hand, fixing up fences, etc., at their expense, in case‘he should fail to get the land back, and saying, “I will not go further or faster than I would for myself on expenses, if you leave it to me till I see what I can do; if I fail to redeem it, then the-expénses and improvements is all left for you to say.” No reply to this appears in the record. On October 30, 1899, Snyder wrote that forest fires had greatly damaged the propert}', asked’ what he should do about Rebuilding the fences and suing the party who. put out the fire for damages, and saying, “So it is-a big job for you if you should keep the land <§ if I get it back
In connection with this correspondence, Rickard’s testimony xhust be considered. He says that, after the execution of the release, Snyder and his wife seemed to be very much hurt over their failure, and that the former had said that he felt that he could repurchase the land if they would give him the opportunity to do so upon liberal terms and that, in response to this, he was advised that in all such efforts he would be the worse off, but that if he should get in shape at any time and convince them that he could, with his own money, during the year of his rental contract, purchase the property and save a home for himself, they would be willing to enter into an agreement with him upon such terms as might be agreed upon or liberal terms, but they were not willing to give him an option or anything that might handicap the title or give anybody else the privilege to take their place and get the benefit of a profit that they might have in case of a rise in prices' after they had purchased the property in a panic and carried it through when nobody else would pay the price. Relierd also narrows his evidence to the extent of sajdng that Rickard and the Liskeys had stated, in their conversations with him concerning their agreement with Snyder, that the price at which he was to have the land back had not been fixed. While Rickard does not say at what, price he had said Snyder could have the land back, it is to be noted that his language, as given by himself, -imported, and was calculated to lead Snyder to believe, that he could have it upon the original terms. They required him to purchgise with his own money, denied him the privilege of borrowing jnoney from others, and safeguarded the property from falling into
Whether made before or after the execution of the release, the agreement undoubtedly was that Snyder should have the land back upon payment of the price specified in the contract •of January 23, 1899. ‘This clearly appears from Rickard’s letter of January 27, 1900. What else could he have meant by ■saying they would sell Snyder the land right along the lines they had always talked "and at the same price f’ Iiis testimony .imports that no price had been mentioned and that it remained to be fixed, as part of the liberal terms, in case Snyder ■should ever become able to re-purchase. The letter of January 27, 1899, fi'atly stamps this an error and, at the same time, supports Snyder’s claim that a price was fixed, and there is nothing to indicate that it was different from the original purchase price. As the agreement was in substance and effect, exactly what Snyder claims it was, namely, that he should have the land at the original price, notwithstanding the release, it is wholly unimportant that they called it a re-sale and refused to give an option. Again, what did he mean by saying right along the lines they had always talked? Does not “always” go back beyond the •date of the release? Can anybody read these letters without concluding that Rickard’s was written to re-assure Snyder that lie might redeem? Can it be doubted that the words “always” and “same price” were used deliberately? What could have 'been the promise he said it was “of no use to repeat,” other than that Snyder might still pay the mone'y and keep the land ? In the same letter and same connection, Rickard said they would sell the timber on the upper farm. This, too, was one •of the terms of the original contract. True, he did not say the purchase money of the timber might be credited on the purchase ■money of the land as provided by the contract, but he. said the timber might be sold and Snyder could have the land back, two of the things asked by him, and evaded a direct answer as. to •the right of redemption, and this to a man known to him to be 'illiterate, and in a distressed state of mind. It was substantially an admission of the claim of Snyder. To this equivocation and evasion, add the fiat contradiction and admission, on -a vital point just referred to, and the evidence adduced by the ■plaintiffs stands self-discredited, while that of the defendants
On this point enough has probably been said to clearly show that the court ought to have found on it for the defendant. But there are other circumstances tending to prove the contention of Snyder. Althoxrgh the surrender of the purchase money notes is stated in the release to be one of the considerations for its execution, and the release was recorded, they were never surrendered, but are still held by the plaintiffs. Rickard says they together with the deed of trust were left in his custody to be copied and to be compared by Albert Snyder, who was to come to Harrisonburg and bring some cattle to plaintiffs, and then take the papers back to his father, but he never came. Snyder,, however, says the papers to be sent him were copies of the release and rental contract. In a postscript • to his letter of November gf, 1899, Rickard said: "Some time ago I had the papers copied to send you, but thought you would come ovar this fall and we could compare copjr with original. Is there any one-here who could do this for you, or shall I send .them to you by mail ?” A very natural inquiry here is Why should comparison by Snyder be important if original papers were to be sent to him and copies retained by Rickard? Could not Rickard see for himself' whether the copies he desired to retain were true and correct? What possible interest could Snyder have in seeing that copies-to be retained by Rickard were correct? Again, of what practical use could copies of cancelled and surrendered papers be to the plaintiffs? Was the withholding of these notes, contrary to the terms of the release, an act intended to lull Snyder into a feeling of security and in pursuance of the agreement as claimed by him? Did the plaintiffs hurry away as soon as the release was signed without leaving copies of it and the rental contract, lest Sny'der’s meditation over the iron-clad terms of these papers-should create dissatisfaction and arouse him to a premature demand of his rights under the verbal agreement? This, too, looks probable. Why were these papers not surrendered on October 1, 1900, when Rickard and Snyder appear to have been together, or on October 20, 1900, when Rickard and probably all his associates were at Snyder’s house? Is there any reason-why they could not have taken them there? Taken in connec
Thus it appears that, treating the parties as vendors and vendee, under a contract of sale, the defendant is entitled to-specific execution of the contrast, notwithstanding the release executed by him. But the theory of the defendant’s ease is-that the original purchase by the plaintiffs and re-sale to him, are to be treated in equity as a loan by the plaintiffs to the-defendant of money on the faith of the land as security, and that the transaction was intended to be, and was, in fact, such loan. Many cases illustrating the principle relied upon have-been decided by this Court, but none of them stand upon like,, or strikingly similar, facts. It is universally held that the intention of the parties to the transaction, gathered from the circumstances attending it, the conduct of the parties, the face off the written contract, and parol evidence, must control. Thompson v. Davenport, 1 Wash. 125; Dabney v. Green, 4 Hen. & Munf. 101; Lawrence v. Dubois, 16 W. Va. 443; Sadler v. Taylor, 49 W. Va. 104; 2 Min. Ins. 329; Jones Mort. 258. Certain rules have been laid down by this Court for guidance in seeking the intention of the parties, but some of them are clearly inapplicable here. It appears that the grantor was hard pressed
In another long list of cases it is held that one who purchases at a foreclosure or execution sale for the benefit of the-debtor and upon an agreement to convey to Rim upon the subsequent repayment of the amount paid, takes the property as a mortgagee, even when the debtor has not actually paid any money toward the purchase, if "he has abstained from bidding, or indueed óthers so to do, whereby the purchaser obtained the-property at a price below its real value. Jones Mort. section 332; Ryan v. Dox, 34 N. Y. 307; Brown v. Lynch, 1 Paige (N. Y.) 147; Sahler v. Singer, 37 Barb. 329; Guinn v. Locke, 1 Head 110; Heister v. Maderia, 3 W. & S. (Pa.) 384; Roberts v. McMahan, 4 Ia. 34; Sandfoss v. Jones, 35 Cal. 481; Smith v. Doyle, 46 Ill. 451; Beatty v. Brummett, 94 Ind. 76; Reese v. Roush, 2 Mont. 586.
The principle announced in these last-named cases seems to be fairly applicable to the transaction now under consideration. The purchase in each of these cases was held to have been made-for the benefit of the debtor and upon an agreement to re-convey to him upon re-payment of the purchase money interest and costs. These differ from the cases in the former list in this,, that, in the cases in said former list, the purchases were not made at judicial sales, nor upon aú agreement to re-convey,. nor does it appear that, in addition to the agreement to re-convey, in ease the option to re-purchase should be exercised, there-was any declaration pf trust made by the grantee. In the cases given in the last list all these things appear. -An examination of the transaction of January 23, 1899, between the plaintiffs and. defendant in this cause, reveals the fact that the purchase made by the plaintiffs at the judicial sale was intended for the benefit of the defendant. It appears from the testimpny of the plaintiffs as well as that of the defendant that prior to the sale it. was understood and agreed that the plaintiffs would purchase tlie land of the defendant for the purpose of reselling it to him at an advance of $3,000. This arrangement was perfected, as:
It is needless to say that the reasons given for holding that the release of October 6, 1899, does not bar the right to specific performance, on the theory that the parties stand in the rela
However, the averment of the answer is hardly sufficient; It may be argued frojfi it that the defendant desires to redeem and. is willing to pay the debt, but this averment is qualified and limited by the prayer for relief in reference to the sale of timber as provided in the contract of January 23, 1899. As these sales of timber could not he made except by the consent of the plaintiffs, that clause of the contract is too uncertain to he en-forcible,. He must unqualifiedly -express an offer to pay whatever may be found t$|te *o# the mortgage debt. However, it is familiar law, that 'when i&e court can see that on the evidence é plaintiff has a good case, relief in which can not he decreed he-
As the cause is to be remanded with leave as aforesaid, it is proper to say, by way of guidance in further proceedings, that, upon strict and full proof, such as to preclude the existence of any shift or device to evade the statute against usury, the plaintiffs may be allowed any just and reasonable expenses incurred by them in making their loan, and not already paid by the defendant. 27 Am. & Eng. Ency. Law (1st Ed.) 1013; Brisges v. Sheldon, 18 Blatchf. (U. S.) 507; Nourse v. Prine, 7 Johns. Chy. (N. Y.) 69; Smith v. Wolf, 55 Ia. 555; Beadle v. Munson, 30 Conn. 175. This is not improper where the expense of examining the title and similar services are incurred by the lender at the instance and request of the borrower, and on the faith of his promise to pay it. 27 Am. & Eng. Ency. Law (1st Ed.) 1013; Harger v. McCullough, 2 Den. (N. Y.) 119; Thurston v. Cornell, 38 N. Y. 281; Jones v. Berryhill, 25 Ia. 289. It is proper to remark also that, as the status of the defendant is substantially that of a mortgagor filing a bill to redeem, without having made a previous tender of the amount due, the costs in the trial court are to be included in the decree against him, but not the costs in this Court. 20 Am. & Eng. Ency. Law, 625, citing a large number of cases. No further suggestions are deemed necessary, it being assumed, now that the relations of the parties have been defined, that, under the advice of competent counsel, the defendant will make such amendments in his answer as will give him such relief as he desires within the limits of his rights as herein ascertained.
For the reasons stated, the decree will be reversed, the injunction dissolved, except in so far as it prohibits and restrains the defendants, their agents, servants, employes and tenants from cutting, and manufacturing into lumber, any timber on any of the lands in the bill and proceedings mentioned, and from removing or selling any lumber already manufactured at the mill on said lands, and the cause remanded with leave to both partieg
Reversed. '
Dissenting Opinion
(dissenting) :
Sampson Snyder was owner of a number of tracts of land in Randolph county, in all about three, thousand sis hundred acres, and became financially embarrassed, and in a chancery suit his lands were decreed to be sold for debts amounting to upward of $16,000. They were sold under the decree to Robert Liskey, John TV . Liskey and TV. H. Rickard, for $16,660, and the sale was confirmed. On the day of the sale, 23d January, 1899, the two Liskeys, Rickard and Snyder entered into a sealed contract by which said Liskeys and Rickard sold to Snyder the same lands for $19,660, and expense of the vendors in travel from Harrisonburg, Virginia, to Beverly, and attorney fees for examining titles. Snyder paid no money down, but gave his bonds for the purchase money payable at different dates in fu--fcure. Said contract provided that on failure of payment Sny■der should surrender possession of the lands. On 6th October, 1899, an agreement under seal was made between the Liskeys, Rickard and Snyder which recited that the Liskeys and Rickard had purchased the lands at the judicial sale, and that Snyder by said contract of 23d January,'1899, had the privilege to redeem the lands by payment of large sums set out in that contract; and that Snyder had found it impossible to raise the money to meet any of the installments payable under that contract, and that in consideration of one dollar paid, and the further consideration that the Liskeys and Rickard surrender to Snyder all bonds executed bj him for purchase money under the contract of 23d Janua^r, 1899, and also surrender a deed of trust upon some personal property and two lots in the village of Harmon, given by both Sampson Snyder and his son John Snyder to further secure payment of the purchase money required by said contract, the said Sampson Snyder released all right •and title to said lands, and all claims and demands against said .Liskeys and Rickard or said land growing out of any transaction
Snyder rests his case upon the theory that the Liskeys and Rickard bought in the land for his benefit at the judicial sale, and that he is thus entitled to have the land upon principles found in numerous cases. Currence v. Ward, 43 W. Va. 367; Walraven, v. Lock, 2 Pat & Heath, 547; Heiskell v. Powell, 23 W. Va. 717. Though it is the theory of Snyder that the purchase .at the judicial sale was in fact for his benefit, his purchase, yet I do not regard even his answer, and more plainly }et his own • evidence, as showing that. They show that the contract was that Liskeys and Rickard were to purchase and then sell the land as ■their own property to Snyder. Snyder could not buy. They were no relation to him, under no call to come hundreds of miles .simply to buy in the property for him without profit to themselves.- That theory does not bear the face of plausibility. It was a serious thing for them to make this trip and make them.selves personalty liable for $16,660 for nothing. I do not know that this trust purchase theory is material, in view of the release .agreement of 6th October, 1899, and the leases; but if we can say that at the birth of the transation, in the judicial sale, there was no trust, it goes to dissipate Snyder’s claim based on a trust. If it did not exist then, when did it arise? If a trust existed, and was not afterward released, it would deny the plaintiffs ■the so-called bonus of $3,000 in fixing the amount due. But as ■stated, a fair interpretation of facts stated in the answer and in Snyder’s evidence is that there was no arrangement to buy in the land for Snyder’s use. That such is the truth is plainly ■shown, not only by the evidence of Liskey and Rickard, but by a letter from Rickard to Snyder telling him that he had seen ■some parties in his behalf, and that if his property was worth ■what Snyder represented and his debts not over $15,000, those parties would buy the property at $15,000, and then sell it to Snyder on time, but would not lend, and that he would have to pay $3,000 more, and traveling expenses and attorney’s fee for investigating' title. This shows that the sale was not to be in Trust for Snyder, and that he accepted the proposition with eyes open to this fact. Will a court of equity make it another contract, a mere loan, in the face of this? Of course, the letter of
Time passed, and the date of payment for the first installment of purchase money under that contract Game, and found Snyder unable to meet it. If he could not raise one-third, how could he raise the balance ? The land was involved, and a very large amount, perhaps all of the personal property and two village lots of himself and son also. A large debt was growing and might not be paid by the property. He made a contract by which, in consideration of a release of the debt and the personal property and lots he surrendered his purchase under the contract of 23d January, 1899, By that contract Snyder and wife released “all their rights and titles to said above described property, also all claims and demands against said first parties or said property as growing out of any transaction whatsoever and neither party hereto shall have any claim or demand against the other as growing out of the transaction of January 23d, 1899.” Does not this drown and extinguish any trust in the judicial sale? Or in the contract of sale? Or any right in the whole' transaction ? His first contract promised to surrender the land for non-payment. If not, can people contract at all? Not only that contract, but on the same day Snyder made a lease of the land, and thus became tenant; not only that, but he made a second lease for another term; not only that, but he paid a large amount of rent as tenant. Thus he confirmed that deed of release. No fraud is. shown in it. If there were, it is waived by the second lease at later date, and rent. How is it possible for Snyder to deny the effect of these plain things? Do any writings bind? Does any contract? Snyder says that this release was not to affect his prior ownership. This he says in the teeth of that writing, sealed with Ms seal; it wgs a release, and rescission and yet no release, or rescission. So the maker of a note once said that the understanding was that he was not to be bound; but the Court said that he could not prove that underestanding against a plain note. Towner v. Lucas, 13 Grat. 705. Same principle Martin v. Railroad, 48 W. Va. 542; Hukill v. Guffey, 37 W. Va. 426; Long v. Perine, 41 Id. 314; Miller v. Fletcher, 27 Grat. 403. It is not pretended that the execution of this release created a silent mortgage, so as to ad
In this connection we may say that it is an easy matter to assert a trust for land; but the law stops in with no uncertain trea'd and says that “parol evidence to establish a trust must be clear and unquestionable.” Armstrong v. Bailey, 43 W. Va. 778. The whole case as put by Snyder in his answer and evidence bears the hue of unplausibility, and is contradicted by his action and the documents. But it is said that these parties occupying the relation of trustees and beneficiary, they could not thus deal with each other. The point is void of any plausibility. Their relation, if it existerd, was not a fiduciary relation of the character to appfy that rule, as in case of express trusteeship.
This case is uncontrollably governed by documentary evidence of absolute and certain import, and the oral evidence is therefore unimportant; but if this were not so, a conclusive reason why we should affirm the decree is that the oral evidence is squarely, flatly conflicting, and involves credibility of the witnesses. There is but little law involved, but the case turns on facts, and documents bring in the solvent facts. So far as oral evidence does merit consideration, I will state what is worn and trite, that this Court cannot reverse the lower court when the evidence is contradictory and the credia'bility of witnesses is involved. Camden v. Dewing, 47 W. Va. 315.
It is assigned for error that the court perpetuated the injunction and gave the plaintiffs a recovery of the land and a writ of possession. If it is meant that equity has no jurisdiction for injunction at all, the point can not be sustained. View Snyder as a tenant committing waste, equity has clear jurisdiction for injunction to stop waste. That late excellent work, American
Insolvency is not requisite in case of a tenant committing waste. Viewed not as tenant, which he was, but as a trespasser, injunction lies, Snyder being insolvent, as shown by the whole record, and the damage in cutting and selling large quantities ■of timber entailing large damage. Becker v. McGraw, 48 W. Va. 539. On the theory disclosed by the answer, that of mort.gage, the injunction was proper and could not be dissolved. Bell v. Core, 20 W. Va. 169. But I suppose the assignment does not mean to question jurisdiction in the inception of the case, 'but only in perpetuating the injunction and granting recovery of the land and a writ of possession at the end of the case. ‘The case being one of a tenant guilty of waste, it was surely right to perpetuate the injunction without trial at law. University. v. Tucker, 31 W. Va. 621. So if the case were as Snyder contended, one of vendor and vendee, or equitable mortgage . and the mortgagor doing irreparable injury, as the evidence ■ clearly shows that Snyder was cutting and sawing with a mill a large amount of timber. But did the court err in giving a recovery of the land and a writ of possession? Viewing the case as that of the tenant refusing possession after term expired, of course, there is no equity merely for the recovery of possession; 'but as the court had clear jurisdiction for -vaste, and the bill ■ alleged both waste and unlawful detainer, could not the Court go on to give full relief by delivery of possession under the ■rule that equity having jurisdiction for one purpose, will give complete relief on the merits and end the litigation, and not turn the parties loose for another law suit? Hotchkiss v. Fitzgerald, 41 W. Va. 357. But this action of the court does not ■rest alone on the consideration just stated. The bill set forth ■.the plaintiffs’ title to the land, and the defendant’s tenancy