Lovell v. Chilton

2 W. Va. 410 | W. Va. | 1868

Maxwell, J.

The deed from Chilton to Lovell upon its face I think is for the tracts of land described in it without reference to the number of acres contained in them.

One of the purposes of the bill is for relief, on the ground that Chilton at the time of the sale misrepresented the number of acres contained in the several tracts. On this subject the bill charges that Chilton represented the quantity of land contained in the several tracts at 500 acres, while in fact they only contained, by actual survey, 458 acres. lu response to this allegation Chilton answers that both during the negotiations pending the sale, at the time of the execution of the deed and subsequently, be told Lovell that he had never had said lands surveyed, and that although his several deeds called for about that amount of land, yet that he was inclined to believe there was not more than 450 acres actually embraced in the several tracts.

Not wishing to rest on his denial of the allegation in the bill, which was responsive to it, he proceeded to take the deposition of the witness, Gillison, who proves that in a conversation between Chilton and Lovell before the deed was executed, Chilton remarked that he had never had his lands surveyed, but that he was disposed to believe there was not more than 450 acres embraced within the several tracts, although the deeds called for more land. To which Lovell replied in substance, that as he made by his calculation about 500 acres, called for by the several deeds, to put it at that amount; that the difference was of no consequence, and should cause no difference between himself and Chilton.

I think this effectually disposes of the question as to the misrepresentation of the quantity contained in the several tracts. There is no other allegation in the bill of fraud, surprise or mistake.

The next ground for relief set up in the bill is that the title to a portion of the land conveyed was defective; that the title to the tract containing 107 acres is defective because Chilton had title to but three undivided fifth parts thereof. To this allegation Chilton makes the general answer, that he verily believes, and so alleges, that he has good and indefeasible title to said land. By reference to the deed from Chilton to Lovell it appears that only three undivided fifth parts of this tract are conveyed.

The bill further alleges that one John C. Bird had purchased at sheriff’s sale and has title to a tract of 800 acres of land, which covers all the land conveyed by Chilton to Lovell except the 125 acre tract, and the complainant filed with his bill a deed from the clerk of the county court of Kanawha county to sustain the allegation of his bill. To this allegation, Chilton, in addition to the general answer before referred to, answers that although he considers that be has good title to said lands, yet in order that he might appear in court having done all that in equity and good conscience he could under any circumstances be required to do, he, as soon as the bill was filed, proceeded to get and have recorded from the said Bird a deed releasing all his claims, a copy of which deed he files with his answer.

It appears from the deed to Bird that the title conveyed to him by his tax deed was the title of the heirs of William Cobb to a tract of 800 acres of land. It appears from the deeds filed by Chilton, that he purchased several of the tracts of land, if not all of them, after the sale was made to Bird by the sheriff, and it also appears that several of the tracts are parcels of the William Cobb tract.

It seems to me, therefore, that the complainant thus made out a case showing clearly that Chilton’s title was defective, and was entitled to have the sale of the land injoined until the title could be settled. Keytons vs. Browfords, 5 Leigh, 39. Ralston, &c., vs. Miller, &c., 3 Rand., 44. Bnt I think the release of Bird of all his title to said land, which Chilton procured and had recorded, was a sufficient settlement of the title to allow the complainant to proceed to collect the purchase money by sale of the land.

There is another charge in the bill that the complainant was informed and believed that there were other parties who claimed the land described in Chilton’s deed to him, adversely to him, but there is no allegation who the parties are nor is their title shown or indicated. This allegation is entirely too general to require any attention.

I think, therefore, that the order dissolving the injunction was right, and that it ought to be affirmed, with costs and damages to the appellee, and the cause remanded to be further proceeded with, but if the ease is when finally disposed of, the same as in the record here, the complainant ought to recover his costs.

The President concurred.

DECREE APFIRMED.