96 Va. 231 | Va. | 1898
delivered the opinion of the court.
The bill in this case was filed by the appellees for the purpose of having a contract for the sale of a tract of land specifically executed. They allege that, as administrators of John M. Eatliff, they sold to the appellant in May, 1892, a parcel of land containing 643 acres; that they executed a bond to him for title, by which they bound themselves to make, or cause to be made to him, a deed with covenants of general warranty when the purchase money was fully .paid; that the appellant executed to them, for the unpaid purchase money, his two bonds, which, subject to certain credits, are still due and unpaid, and that the appellant refuses to pay them. They also file with it as an escrow a deed executed, as they allege, “ by the proper parties,” conveying the land to the appellant, with covenants of general warranty, and ask to have the land subjected to the payment of their debt, and, if the proceeds arising from its sale are not sufficient to satisfy it, they pray that certain other property which they have attached may be subjected to the payment of the residue.
The appellant filed his answer, in which he admitted that he made the purchase, as alleged in the bill, and averred that the appellees, “ who were the administrators of John M. Eatliff, deceased, together with the remaining surviving heirs at law of the said John M. Eatliff, deceased, made, signed, and exe
The court directed a special commissioner to report upon the status and condition of the title of the appellees, whether they could convey such title as they had agreed to convey, and to enquire specially into the title of Johnson, or those who claim under him, and whether or not that title had been forfeited to the Commonwealth when the grant under which the appellees claimed was issued, and how long they, and those under whom they claim, had been in adverse possession of any part of the land claimed by them.
The commissioner reported that the Johnson grant for
He further reported that the 22,134 acres had never been entered upon the commissioner’s books for taxation in Buchanan nor in Tazewell county; that neither Johnson nor those claiming under him had ever paid any taxes upon the land nor been in possession of it.
He also reported that the land in controversy had been granted by the Commonwealth to S. W. White on the 1st day of January, 1859, and was 'included within and covered by the Johnson grant; that White had caused the land in controversy to be entered upon the commissioner’s books for taxation, and that he and those claiming under him had kept the taxes on it paid; that White had departed this life, and that his heirs had sold and conveyed the land to M. 8. Ratliff and John M„ Ratliff (now deceased) on the 16th day of April, 1889; that neither the appellees nor those under whom they claim had been in possession of the land prior to the sale to the appellant in 1892, since which time he had been in possession of and cultivating a part of it. He reported that if the title to the Johnson grant had been forfeited to the Commonwealth it was for his failure to put it upon the commissioner’s books for taxation, but that he was unable to say whether or not the appellees could convey a good title to the land; that he had reported the facts, and would leave that question to be determined by the court.
Upon the hearing of the cause the court was of opinion that the contract should be specifically executed, and so decreed.
Hrom that decree this appeal was taken.
The only error assigned in the petition for appeal is that the court, in decreeing a specific execution of the contract, re
It is well settled that a court of equity will not decree the specific execution of a contract on the application of the vendor if there be any reasonable doubt as to his ability to make such title as he contracted to make. 2 Minor’s Inst. (4th Ed.), 803, and cases cited; Clark v. Hutzler, ante p. 73; Pomeroy on Spec. Per. of Con., sec. 204.
Does the Johnson grant, under the facts of this case, cast such a doubt upon the title of the vendors ?
That grant was issued more than one hundred years ago. The land has never been placed upon the books of the commissioner of the revenue for the purpose of taxation, and no taxes have ever been paid upon it by Johnson, or those claiming under him. That being the case, under the decisions of this court construing the provisions of our statutes enacted from time to time, making it the duty of the owners of land to have their'lands entered upon the books of the commissioner of the revenue for the purposes of taxation, it is clear that the Johnson title was forfeited to the Commonwealth. Staats v. Board, 10 Gratt. 400; Wild’s Lessee v. Serpell, Id. 405; Hale v. Branscum, Id. 418; Levasser v. Washburn, 11 Gratt. 572.
The fact that there is nothing of record to establish such forfeiture, does not make it the less complete. For the same eases above cited decide that the forfeiture becomes absolute and complete by the failure to enter the lands upon the books of the commissioner of the revenue, and to pay the taxes, &c., in the manner prescribed by the act of February 27,1835, and that no judgment, or decree, inquest of office, or other matter of record, is necessary to consummate and perfect the forfeiture.
Where, upon a given state of facts, the law is settled that a title is absolutely forfeited to the Commonwealth, it cannot be said, when those facts are shown to exist, that it is a cloud upon the title of a subsequent grantee of the Commonwealth for the same land.
In his brief, but not in his petition for appeal, the appellant insists that the court erred in overruling his demurrer to the bill. There is nothing in the record to show that a demurrer was filed. The only reference to a demurrer in the case is a statement in the appellant’s answer that he reserves “all just exceptions to the many deficiencies by demurrer to a bill exhibited,” &c. Under the most liberal construction of pleadings, that statement could not be regarded as alleging that the bill was insufficient in law.
It is also assigned as error in the brief that the suit was brought by the personal representatives of John M. Ratliff, deceased, without alleging in their bill their authority to sell their decedent’s lands, and without making his heirs parties to the suit.
The bill is defective in both these respects, and if it had been demurred to, the court would doubtless have sustained the demurrer and required it to be amended before granting the relief prayed for. The appellant, however, made no objection to these defects, and filed his answer, in which he states that he made his contract of purchase with the personal representatives of John M. Ratliff, deceased, and that they, with the other heirs at law of the decedent, signed and executed a bond to him for title.
There is filed with the bill as an escrow a deed conveying the land to the appellant, signed and acknowledged by all the parties who signed the title bond, in which it is recited (as is admitted in the answer of the appellant) that they are the heirs of John M. Ratliff, deceased.
It thus appears from the record that the heirs of John M. Ratliff authorized his personal representatives to sell the land, that they were parties to the contract of sale, and that they have made a deed conveying the land to the appellant, with
Upon the whole case, we are of opinion that the decree complained of should be affirmed.
Affirmed.