12 Gratt. 410 | Va. | 1855
delivered the opinion of the court:
A distinction seems to have been taken by some of the reported cases, as to the relief a court of equity will extend to a vendee who has accepted his deed with covenants of general warranty, where he seeks to enjoin a judgment for or the collection of the purchase money, and the case where the vendor, instead of proceeding against the vendee personally, is attempting to sell the land under a deed of trust or by a bill in equity; that although the facts may not
The principle that a court will not sell or permit a sale of land with a cloud hanging over the title, is affirmed in Lane v. Tidball, Gilm. 130; Gay v. Hancock, 1 Rand. 72; Miller v. Argyle, 5 Leigh 460.
In the present case, which was a bill filed to subject the land to sale for payment of the purchase money, in consequence of the refusal of the trustees to sell, the appellant resisted the sale, first, upon the ground of a deficiency in the quantity; and secondly, because the complainants had failed to make a clear title to the land sold and conveyed by them.
The first ground is not assigned as error in the petition, and is clearly untenable. The vendors offered to survey the land. A survey was in part actually
That this was after the partial survey, is shown' by the testimony of Robert Sneed, from which it appears that at the time of the purchase, William Sanders was to become surety for the purchase money, and who it seems had an interest in the purchase; that when they met to survey, Sanders refused to become surety, and the appellant agreed to give a deed of trust on his own land and the land purchased, on Sanders’ consenting to relinquish his interest in the purchase; and thereupon they commenced the survey as aforesaid. Whatever right the appellant may have had to the survey under the first purchase, he then waived it.
As to the title, the appellant did not agree to rest upon the covenants of his deed alone. The parties contracted with a full knowledge of the facts in regard thereto; and on the same day the deed and deed' of trust were executed, the appellant took from the appellees, his vendors, a bond in the penalty of one thousand dollars, with a condition which recited they had sold to the appellant the land formerly belonging to William Barnett deceased, in which land Elisha Barnett’s interest was not conveyed; and binding the parties to make a complete title to said Elisha Barnett’s and others’ interest.
Under this obligation the appellant could have sued, if the obligors failed to make a title in a reasonable time: He was not bound to wait until evicted. The vendors, in executing a deed with covenants of warranty, had not fully acquitted themselves of all obligation to active effort to get a clear title for the vendee. The burden of proof did not devolve on him to show
The appellant did not suggest in his answer that he had been disturbed in the enjoyment of the property. No suggestion of any disturbance was made before the interlocutory decree. And after such a lapse of time, it is not reasonable to suppose that there could be any danger of such disturbance.
It seems there were nine heirs or devisees to whom the land descended or was devised. The answer alleges that Elisha Barnett’s share has never been conveyed. Elisha Barnett is examined as a witness, and deposes that he had conveyed his right, title and interest in the land belonging to his father, to Mayer Pollack ; and a deed from him to Mayer Pollack for his ninth part of said land, dated and recorded in 1809, is filed as an exhibit. Cisley Pollack, who was one of the heirs or devisees, united in the deed to the appellant, conveying in her own right, and in right of Mayer Pollack deceased, as far as she had title. Under • this conveyance the appellant entered; and no person claiming under Mayer Pollack appears to have asserted any adverse claim; and unless they labored under disability, which is not alleged, the presumption is that Mrs. Pollack had title, as she undertook to convey something; or that those entitled have acquiesced in her act. Another of the heirs, G-eorge C. Barnett, seems to have united with Elisha in a deed of trust dated and recorded in 1811, conveying their interests in the estate, real and personal, of their father, to secure certain debts. There is nothing to show that any action ever took place under that deed, or that any claim was ever asserted under it. And after a lapse of forty-one years, it is not to be presumed that any such
It is further objected that Mrs. Turner R. Henley, who with her husband united in the deed to the appellant, and acknowledged it when she became a widow, had previously united with her husband in a conveyance to another. Ho such deed is filed;- There is a certificate of the clerk of Goochland county that Turner R. Henley fyas executed a deed of trust conveying all the interest of Henley and wife in the real and personal estate of William Barnett deceased, to secure a debt of one hundred and six dollars and thirty-four cents due to R. K. Dabney. The inference from the certificate is, that Mrs. Henley did not unite in it. There is also a deed filed purporting to be a deed from John Y. Miller to John Thompson, jr. dated 20th July 1844, conveying the interest of Henley and wife in the land and personal estate of William Barnett deceased; reciting that it is the same conveyed to said Miller by William Gray and William Miller, trustees, for the benefit of R. K. Dabney, in a deed of trust executed by Henley and wife to them, by deed duly recorded on the 21st of September 1829. This would-be anterior to the regular acknowledgment by Mrs. Henley of the deed executed by the heirs to the appellant. But in reference to this share, it is sufficient to say it does not appear she ever signed or acknowledged the deed of trust referred to. It does appear she has regularly executed the deed to the appellant; that he has held possession under it for his own use, and such possession would bar any claim under the deed of trust.
It is further objected that Mrs. Eobert F. Barnett did not unite with her husband, who was a legatee, in the conveyance to the appellant. The contingent right of dower in one-eighth of a tract of two hundred and fifty-seven acres of land of no great value, is too uncertain and trifling to create such a cloud over the title as to affect its price, if sold under the decree.
It does not appear that Betsy Southworth, wife of George Southworth, was ever examined privily and apart from her husband. But she was a plaintiff in this suit. On the death of her husband she continued to prosecute it, .and the interlocutory decree for a sale is in her name as widow. A sale would bind her right, and upon the coming in of the report and final decree, an order could be made directing her to execute a conveyance, if required.
Mrs. Huckols, another of the heirs, seems to have acted by her attorney in fact or agent William Huckols. Ho objection is taken in the answer on this ground; and in the account filed by the appellant, and his exceptions, he claims credit for a fee paid for recording a power of attorney from Mrs. Huckols to William Huckols. The" objection probably was not made because the parties knew of the existence of the power.
I think, upon the whole, that at the time the decree was rendered, in the absence of any suggestion that the purchaser in possession had ever been disturbed, time had effected what it was originally the duty of' the vendors to have done, quieted the title. That there was no danger, after such long exclusive enjoy
It is furthermore objected to the decree that the commissioner and the court erred in refusing the appellant various credits claimed by him. The appellees held his bonds, and the duty of showing payment devolved on the appellant. As early as October 1835, the cause was referred to a commissioner, to take an account of payments; and from that time down to 1843, when a report was made, repeated efforts were made to compel the appellant to appear before the commissioner to submit his accounts and vouchers for examination. The appellees, for some reason, perhaps because they desired a hearing, seemed to think it devolved on them to have these vouchers exhibited, and therefore moved for rules against the appellant to show cause why he should not be attached for his failure to exhibit his vouchers of payment, if he had any. Their efforts were unsuccessful, and the commissioner was at last constrained to make up his account from the evidence then in the record. The commissioner rejected some claims set forth in an account filed by the appellant with his answer, because no evidence was adduced to sustain them: and none has been adduced since. As to the application of the credits to the first bond; if the appellant had appeared with his proof before the commissioner, it is possible he might have shown that some of the credits applied by the commissioner to the bond lifted by him, were applicable to the second bond with which he has been charged. But these were questions which should have been raised before the commissioner, who, with the parties before him, and when the transactions were fresh, and the parties concerned in them still living, might have ar
I think the decree was correct on the merits at the time it was rendered: But I am further of opinion, that as the appellant was in no default when the bill was filed, he was entitled to his costs in the court below; and that the decree in giving costs against him is erroneous; and under the authority of Ross v. Gordon, 2 Munf. 289, and other cases since, should be reversed as to the costs, with costs in this court to the appellant; and affirmed in all other respects.
The decree was as follows:
The court is of opinion, that at the time the bill was filed the appellant was in no default in resisting a sale of the land conveyed to him until his vendors had complied with the terms of the contract appearing in the condition of the bond dated the 4th January 1828, filed as an exhibit with the answer.
The court is further of opinion, that as the parties might have perfected the title at any time before the hearing, so as under the pleadings to have entitled them to a decree subjecting the land to sale; the lapse of time, the uninterrupted enjoyment and possession of the land under the deed, the absence of. any suggestion of any disturbance or the assertion of any adverse claim had at the time the decree was entered, quieted the title in the appellant, and cured all such defects in the title set forth in the answer or disclosed by the record, as should operate to prevent the court from subjecting the land conveyed to sale for the payment of the residue of the purchase money. The court is therefore of opinion, that there is no error in so much
The court is further of opinion, that there was no error in refusing to allow the appellant, for the alleged deficiency in the quantity of the land sold, or in overruling his exceptions so far as the same were overruled, and in ascertaining the balance of purchase money due from him. But the court is of opinion, that as the appellant was in no default in objecting to a sale when the suit was instituted, he was entitled to his costs; and that said decree was erroneous in awarding costs against him. It is therefore decreed and ordered, that so much of said decree as awards costs against the appellant be reversed and. annulled, that the residue of said decree be affirmed, and that the appellees pay to the appellant his costs by him expended as well about his defense in the Circuit court, as in the prosecution of his appeal aforesaid here, and the cause is remanded for a sale, and further proceedings in order to a final decree: which is ordered to be. certified.