43 W. Va. 405 | W. Va. | 1897
Henry Waggy and F. J. Baxter appeal from a decree of the Circuit Court of Braxton comity in a chancery canse therein pending wherein they were defendants and J. W. Morrison was plaintiff. The plaintiff, in his bill, alleged : “That on the 8th day of February, 1888, lie entered into a contract with defendant Henry Waggy, by which he conditionally purchased a one undivided moiety of nine hundred acres of land situated in the county of Clay, on the north side of and adjacent to Elk river, and known as the ‘Jack Bend Land,’ and the defendant agreed to convey the same to him by deed of general warranty. Baid contract is in the words and figures following, to wit: This deed, made this 8th day of February, 1888, between Henry Waggy, of the. first part, aiid J. W. Morrison, Jr., of the second part, all of the county of Braxton and Bfafe of West Virginia, witnesseth: That, in consideration of three, thousand dollars, to be paid, as hereinafter specified, the party of the first part do grant, bargain, and sell unto the party
It is proper to first say that both Pierson and Baxter were improperly made parties to the suit, as they were in no wise interested in the litigation, as it made no differ-once to them whether the court canceled the contract, or dismissed the bill for want of equity. This was not a suit for specific performance, but to cancel a contract which was funetuH officio for failure of consideration to prevent it being used unconscionably in a court- of law to the peril of the. rights of an innocent party thereto. 21 Am. <fc Eng. Ene. Law, 48. Such jurisdiction reposes in a court of equity, although defense anight be made at law. Code, e. 126, s. 6; Knott v. Seamands, 25 W. Va. 99; Bias v. Vickers, 27 W. Va. 456 The mere fact that the court makes unnecessary parties to the suit does not authorize, a decree between the defendants in which the plaintiff is in no wise interested. If this was a suit on this same contract for specific performance, a different rule might prevail; hut, the eonlract being dead, the plaintiff could neither ask nor be inquired to take the land the title to which is in controversy. Nor could the court try an eject
There is still a further reason why this contract should be canceled. Contracts, to be binding, must be mutual. If there is a serious difference or misunderstanding owing to the abstruse or equivocal wording of the contract, evidently showing that the minds of the parties thereto never met, then there never has been a contract, and equity will relieve the innocent party from a writing by which he has been deceived.
The plaintiff insists that he was entitled to a deed for the land, with covenants of general warranty, and he introduces evidence to show that the words “absolute title” used in the contract were so understood by'the parties at
The cases referred to by appellants’ counsel, including Bowman v. Duling, 39 W. Va. 619 (20 S. E. 567); Hearner v. Morgan, 30 W. Va. 335 (4 S. E. 406); Kinports v. Rawson, 29 W. Va. 487 (2 S. E. 85); and Smith v. Parsons, 33 W. Va. 644 (11 S. E. 68), — are not in point, from the fact that in all these cases there Avas an actual sale of land, and not a mere optional contract. In tin* former case the purchaser buys for himself, Avhile in the latter the optional purchaser only contracts for the purpose of re-sale, and hence any defect in title or quantity
Affirmed.