86 W. Va. 356 | W. Va. | 1920
Defendant Shackleford obtained this appeal from the decree below of November 12,-1918, which cancelled and annulled the contract between plaintiff and him and the two deeds made by him and his wife pursuant thereto to' plaintiff,' the first dated April 16, 1917, the second May 1, 1917, whereby they undertook to sell and convey to plaintiff 19.61 acres of coal in Braxton County; and which also cancelled the three notes of plaintiff for $5,000.00 each given Shackleford for the deferred installments of purchase money, and ordered said notes to be surrendered to plaintiff; and which also specifically enjoined and inhibited Shackleford from transferring, assigning, negotiating, collecting or in any manner using said notes; and decreed in favor of plaintiff against the defendant Kanawha Union Bank $1,180.52 with interest, the balance of the cash payment on said coal remaining to the credit of said Shackleford, and against the said Shackleford $1,819.48 with interest, the residue of said cash payment of $3,000.00 drawn out of said bank and expended by him.
The bases of the relief sought and so decreed were that Shackleford had no right or title of any kind to said coal; that on March 31, 1904, he had sold and by deed of that date had conveyed to Henry G. Davis the very same tract of coal, which deed was of record in said county; that Shackleford well knowing or. bound to know that he had no right or title to said coal, and falsely representing to plaintiff that he had title thereto and right to sell and convey the same, the plaintiff being ignorant thereof, had perpetrated a fraud upon it for which it was entitled to the relief prayed for.
As in the court below, so here on appeal, appellant relies substantially upon three propositions: First, that in entering into said contract and in making said deed, he acted in good faith, honestly believing he had good title to and right to sell and convey said coal; that while he at first thought he had previously sold and conveyed the same to said Davis, he had found among
It is conceded by counsel on both sides of the controversy that the real question involved and decisive of the rights of the parties, and presented by pleadings and proofs, is whether or not the defendant Shackleford was guilty of actual or legal fraud in the sale and conveyance of said coal to plaintiff. Tt is admitted' that whether Shackleford’s deed amounted to a general warranty or only to a- quitclaim of such right and title as he had to the coal, if he committed fraud upon plaintiff, the plaintiff is entitled of right to a cancellation of the contract and deeds and to be put in slalu quo, and that he neither has the right to make good his alleged title, nor to the benefits of plaintiff’s purchase from the true owner, nor to any cross-relief against his grantee, sought by him in his cross-answer.
Bearing on the question of actual fraud, defendant admits
As to whether plaintiff relied on the representation of Shackleford or made an independent investigation of the record, the evidence is somewhat in conflict. Plaintiff’s evidence shows that its representative looked only to the record of the immediate deed to Shackleford, as-pointed out by him, his undeliver’d deed to Davis, which he exhibited as evidence of his ownership of the coal, and to the land books relating to one of the magisterial districts, in which it was supposed the coal would have been taxed to Davis; but that it relied mainly oh the representation of Shackleford that he still owned the coal. The fact, if material, on this conflicting evidence, must be regarded as having been resolved by the court in favor of plaintiff, and we can not say it erred therein; indeed we think the evidence fully justified the finding of the court thereon.
But assuming good faith and honest intentions on the part of Shackleford, the admitted fact remains that long before he undertook to sell and convey this coal .to plaintiff, he had sold and conveyed it to Davis and thereby parted with -all right and title he had therein. His counsel insist that such rights as he acquired by his redemption of the land, passed to plaintiff by his deed. But what did that amount to? Absolutely nothing. He acquired no rights thereby, and his vendee acquired nothing by his deed. The court below, according to a written opinion filed, put its decree not only on fraud but on mutual mistake. Undoubtedly there was a mistake on the part of plaintiff; but we doubt whether, under the facts proven, Shackleford should be permitted to say he was mistaken. The law will not permit one after having sold and conveyed his property to undertake to sell and convey it to another and then rely on his mistake or a bad memory to excuse his fraud and permit his profit thereby. The-law on this subject is well stated by the leading text writers as an exception to the general rule invoked by defendant, as follows: “If a statement of fact, actually untrue, is made by a person who honestly believes it to be true, but under such circumstances that the duty of knowing the truth rests upon him, which, if fulfilled, would have prevented him from making the statement, such misrepresentation may be fraudulent in equity, and the person answerable as for fraud; forgetfulness, ignorance, mistake, cannot avail to overcome the pre-existing duty of knowing and telling the truth.” 2 Pom. Eq. Jur. (4th ed.), §888, p. .1839; 1 Story Eq. Jur. (14th ed.), §272, p. 281.
On the theory of mutuality of mistake, one of the grounds adopted by the circuit court, the authorities are equally clear that the contract -and deeds were properly set aside and annulled. 1 Story.Eq. Jur. (14th ed.), §§211-215; Fearon Lumber and Veneer Company v. Wilson, 51 W. Va., 30; Worthington v. Staunton, 16 W. Va. 208, 242.
The remaining question to be considered is, has the defendant
Finding no reversible error'therein, we are constrained to affirm the decree.
Affirmed.