41 W. Va. 769 | W. Va. | 1896
On the 7th day of March, 1892, M. H. Nash and T. B.
The plaintifts allege in their bill that they purchased said lot from the defendant H. C. Jones, who claimed to be an owner holding said land in common with said R. C. and N. II. McClaugherty, for which lot they paid said Id. C. Jones two hundred and fifty dollars, the contract price therefor, in cash, and took his receipt therefor, which they exhibit with their bill, and which shows a partial description of the land. And they allege that at the time of said purchase, the defendant II. C. Jones represented to them that he was a joint owner with the defendants R. C. and N. Id. McClaugherty, and that he held one-third undivided interest in said land, which they allege was true, and that as soon as the purchase money was paid they (the said defendants) with their wives, would unite in conveying the whole of said land by deed to plaintiffs, and, upon the faith of said representations, the plaintiffs were induced to make said purchase, and they took actual possession of said land, by running it off, and making some valuable and permanent improvements on the same; that they paid up the purchase money, and called upon the defendants for a deed for same, which they failed and refused to make according to the terms of the contract; and they pray that the contract may be specifically performed, and said H. C. Jones be required to make, or cause to be made, such a deed as they are entitled to for said land, or that said H. C. Jones be required to refund the two hundred and fifty dollars purchase money which they had paid him for said lot, with its interest from the 2d day of September, 1890, until paid.
The plaintiffs also filed an amended and supplemental bill, in which they state that in May, 1889, the said N. H.
The defendant Jones demurred to plaintiffs’ bill, and also made answer to the same, in which he says that he and N. H. McClaugherty sold said lot to J. N. Dugger for one hundred and fifty dollars, and executed to him a title bond
N. H. and R. C. McClaugherty demurred to said amended bill, and also filed their joint answer thereto, admitting the sale by N. H. McClaugherty and H. C. Jones to J. M. Dugger on the 1st of March, 1890, of said lot, but alleging that on the 13th day of May, 1890, said N. H. McClaugh-erty and H. C. Jones sold one-third of the lots then owned by them to R. C. McClaugherty, being twenty three in all, and that after said R. C. McClaugherty purchased said interest, it became desirable to the owners of said lots to purchase the lots which had theretofore been sold by H. C. Jones and N. H. McClaugherty to different persons, and hold the same, including said Dugger lot, and it was agreed between said parties that either said Jones or N. H. McClaugherty should purchase said lots back, and draw on R. C. McClaugherty for his one-third of the purchase mon
On the 19th day of December, ,1893, the cause was heard upon the pleadings and depositions. The demurrer of N. H. and R. C. McClaugherty was overruled. The exceptions to the depositions taken upon the cross bill were sustained, for the reason that no process was ever issued upon said cross bill, and there never was any appearance thereto by the defendant H. C. Jones, or any issue upon the affirmative matter set up in the cross bill; and the court, being of the opinion that at the time of the sale of said lot to said Dugger, said II. C. Jones and N. H. McClaugherty were the joint owners thereof in proportion of two-thirds to Jones and one-third to McClaugherty, and being further of opinion from the said pleadings and evidence that at the time said H. C. Jones purchased said lot from Dugger, he was acting for himself and the defendants N. H. and R. C. McClaugherty jointly, and repurchased the same for them in the proportion^ of one-third to each, and being further of the opinion that the interest of said R. C. McClaugherty is now owned by said N. TI. McClaugherty, adjudged and decreed accordingly, and, being further of the opinion that at the time said sale was made to plaintiffs, said H. C. Jones was not the agent of N. II. and R. C. McClaugherty, and that they never unconditionally ratified the same, and for this reason said sale can not be specifically performed, but that the same should be rescinded, so adjudged and decreed, and further decreed that the plaintiffs were entitled to recover from said H. C. Jones the two hundred and fifty dollars paid him; with interest from the time of payment, and ordered that execution issue in their behalf therefor, and ordered that N. H. and R. C. McClaugherty do recover from said H. C. Jones their costs, etc.; and from this decree said H. C. Jones appealed to this Court.
It is apparent from an examination of the record that the only thing that prevented a compliance on the part of N. H. McClaugherty with the terms of the contract of sale made by IT. C. Jones to the plaintiffs by joining in a deed to them therefor was a disagreement between them as to
Now, let us inquire why it is that the plaintiffs in this case were not entitled to a specific execution of this contract. Surely, such refusal can not be based upon the fact that N. H. McClaugherty and II. C. Jones could not agree as to the proportion of the purchase money that each one was entitled to. Even if it was true that H. C. Jones, in making the sale to the plaintiffs, was acting for himself and N. II. McClaugherty, which is the most that could be contended for by said McClaugherty, the plaintiffs paid the purchase money to II. C. Jones, who owned two-thirds of the lot at the time of the sale to Dugger, and, by becoming the assignee of the title bond, was entitled to the whole of it by paying fifty dollars to N. II. McClaugherty, with the interest thereon from March 1, 1890, which sum he states he paid to N. II. McClaugherty by crediting his account with that amount. Said N. II. McClaugherty, in his answer, while he denies that he authorized said H. C. Jones to make sale of said lot No. 28, says he was willing to join in a conveyance of said lot to plaintiffs, and would ratify the sale of said lot made by the said Jones to plaintiff upon the payment to him of one hundred and sixteen dollars and sixty six and two-third cents, with interest thereon from the date when it should have been paid, which sum he ar
The agreement which is claimed to have existed between the McClaughertys and H. C. Jones to purchase said lot for them and Jones jointly, if made at all, wms a parol agreement in regard to the purchase of land, and not capable of enforcement. Nor can it be held that there was a resulting trust by reason of the purchase of the lot by Jones. “The whole foundation of a resulting trust of this class is the ownership and payment of the purchase money by one when the title is taken in the name of another.” See 10 Am. & Eng. Enc. Law, p. 11. See, also, page 12 of the same volume, where it is held: “A mere parol agreement or declaration will not raise such a trust.” See, also, 2 Sugd. Vend. top page 438, § 15, where it is stated that “where a man merely employs another person by parol as an agent to buy an estate, who buys it for himself, and denies the trust, and no part of the purchase money is paid by the principal, and there is no written agreement, he can not compel the agent to convey the estate to him, as that would be directly in the teeth of the statute of frauds.”
My conclusion therefore, is that the plaintiffs having through H. C. Jones, acquired the rights and equities of J. M. Dugger with reference to said lot, and having paid the purebase money, have a right to a specific execution of their contract, and to a deed from N. H. McClaugherty and wife and H. C. Jones and wife for said lot of land; and the decree complained of must be reversed, and the cause remanded, with costs to the appellant to be paid by N. H. McClaugherty.