32 Gratt. 48 | Va. | 1879
delivered the opinion of the court.
He had before, by deed of 30th of November, 1858, granted to Preston “all his right, title and interest, as well at law as in equity,” in said salt works. First, the interests conveyed to the said Heiskell by Joseph E. C. Trigg, and Rachel, his wife, and Walter S. Branch—one two hundred and eighty-eighth each. Second, the interest conveyed to him by James King, consisting of one seventy-second, one five hundred and fortieth, and one nine hundredth. Third, the interests conveyed to said Heiskell by John Claiborne, James Claiborne and Duncan R. Claiborne—one .two hundred and seventieth (the word each probably omitted in copying). This last is the same interest that wre recited in the deed of 1862. Fourth, the
Subsequently Preston and wife, by deed dated July 7th, 1859, conveyed to Robert Gibbony the Preston salt works estate, and all their right, title, claim and interest, at law and in equity, in the Kings salt works estate, which includes his aforesaid purchase from William King Heiskell, in trust to secure his just creditors, and to indemnify his sureties.
On the 14th July, 1862, the deed of that date, herein before referred to, was executed by William King Heiskell, Thomas L. Preston and Robert Gibbony, trustee for Thomas L. Preston, by which Gibbony releases to Preston all and any right vested in him by the deed of 7th of July, 1859, to the interests which were conveyed to the said Preston by William King Heiskell, by the deed of 30th November, 1858. And the said Heiskell and Preston abrogate and annul said deed, and declare this deed to be the only and whole contract between them, touching the sale and purchase of interest in the King’s salt works; and Preston releases the interest in the said salt works, purchased by Heiskell from William L. Hnnter, being one twenty-fourth. And the said Heiskell bargains and sells to said Preston all the other interests which he had conveyed to him by the aforesaid deed of November 30th, 1858, which includes the interest which he purchased from the Claibornes.
The only reason assigned in the deed, for the releasing-by Gibbony to Preston, all the interests which he had purchased from Heiskell, in the King’s salt works, by the deed of November 30th, 1858, and which Preston had conveyed to him, by the deed of July 7th, 1859, is? that the said Gibbony had “assets sufficient for the pay
It is necessary and proper now to inquire, what interest.
The deed of 14th of March, 1854, witnesseth that the •said James Claibore doth grant unto the said William King Heiskell all the right, title, interest and claim which ■he, the said James Claiborne, has in and to the salt works lying and being in the county of Washington aforesaid, in the state of Virginia, known as King’s saltworks.” Here is inserted other property, and the deed then proceeds: “ The interests hereby intended to be conveyed, being the :same which descended to the same James Claiborne by the death of his half-brother, Thomas J. King, deceased, and of his sisters, Charlotte and Anastasia Claiborne, deceased, they having died intestate without issue; also all right, title and interest which the said James Claiborne now has, or may have, in the dower interest of Sarah M. Claiborne, his mother, in and to the estate hereby intended to be conveyed.”
By the deed of 28th of April, 1854, John Claiborne grants, bargains and sells to William King Heiskell all the right, title, interest and.claim which he has in the King’s salt works, in almost the exact terms of the deed ■of his brother James to the said Heiskell, just recited.
The interests conveyed as aforesaid are not enumerated, but the bill alleges that they are eleven five hundred and fortieths of the whole King estate; and this enumeration
The bill, also alleges that the contract of Heiskell and Preston was made under.the belief that the Claiborne interests were only one two hundred and seventieths. That, we think, is true, as seems to be admitted. It was a mutual mistake in the enumeration or computation of the •interests, which were the subject of the sale and purchase. But we do not agree with the further assumption of the ¡bill that the parties intended to sell and purchase only the fractional interests designated, and that only a part of the fractional interests of Heiskell, as enumerated, passed by his deed from him to the said Preston. But we are of opinion, as we have attempted to show, by the terms of the deed, it was the intention of Heiskell to sell, and of Preston to purchase, the entire interest which the former held in the King’s salt works by his purchase from the Claibornes, and that it was only a mutual mistake, made in the enumeration and computation of those interests; which, being merely an attempt to describe what had been ¡before sufficiently described, and being untrue, must be rejected as falsa demonstratio. In support of this proposition, we are referred by the learned counsel for appellants to 1 Greenleaf (13th ed.), pp. 355-6, §301, where the rule is thus stated by the eminent author: “ There is a •class of cases (he says) in which, upon applying the instrument to its subject matter, whether person or thing, the •description in it is true in part, but not true in every particular.” The rule in such cases is derived from the
Numerous other cases are cited which we deem it unnecessary further to notice, as we think the principle is so well founded in reason, and so well settled by authority, as to need no further citations in its support.
But it appears on the face of the deed that Heiskell only received payment from Preston on the basis of this mistaken enumeration or computation. He or his representative, we think, upon the facts and circumstances of this case, are entitled to compensation, with interest. See 2 Minor’s Institute, p. 226, and cases cited. He is certainly entitled to compensation from Preston, without deciding as to the liability of other parties. But Preston alleges in his answer that he has claims against Heiskell, which are a valid set off against such claim. We intimate no opinion as to the validity of his claim, which it would not be proper to do, as the ease is not matured for a decision on that claim. But surely Preston, or his assignee, should be allowed an opportunity to assert and establish it, if it is due.
The court overruled Preston’s motion for leave to file-his answer, upon the ground that it was too late, the bill having been taken pro confesso as to him, and a decree having been pronounced in the cause; but permitted him to file it as a petition for a rehearing.
N. H. Massie, as assignee of Preston, tendered a petition before the final hearing, setting up the claim of Preston, and claiming the right to stand in his shoes, by virtue of the assignment to him, which he exhibited with his-bill, and which Preston admitted in his answer, praying
If the decree of the 24th of May, 1878, rightly adjudged the effect and intent of the deed of 1862, that it only conveyed to Preston, six five hundred and fortieths of the Claiborne interest, and that the residue thereof, being five five hundred and fortieths, did not pass by said deed, then there was no error in refusing to 'set aside said decree, or in refusing to allow Preston to answer, or in rejecting the petition of N. H. Massie, because upon that adjudication if right, Preston had no interest, and consequently his assignee could have none, in the subject of controversy. But this court has placed a different construction on the deed of 1862, from Heiskell to Preston, and holds that in effect, and according to the intent of the parties, it passed the entire Claiborne interest to Preston, and that therefore he is interested in the question of ■compensation.
The court is of opinion, that the circuit court erred in refusing Preston a rehearing upon his answer, taken as a petition for a rehearing, and in not setting aside the decree of the 24th May, 1878, as erroneous, for the reasons hereinbefore stated; and then permitting Preston to file his answer, and admitting N. H. Massie as a defendant, •and allowing him to answer the plaintiffs’ bill. And there being matters involved in which there may be a conflict -of interest between him and some of his co-defendants, •and in the decision of which he is interested, and to the end that such matters may be decided, it is necessary that he should file a cross-bill to put them in issue, he should have been, and be required to file a cross-bill for that purpose.
Nor would it be proper for this court, iii the present stage of the case, to decide, or to intimate an opinion, as-to what, if any is due him, and what parties are liable-therefor, and whether the same is a lien upon the subject,, and attaches in the hands of subsequent purchasers; these-being questions in which Thomas L. Preston, or rather-his assignee, are interested, and upon which they have aright to be heard; and which in fact have not been adjtreated by the court below.
Nor is it deemed necessary to consider the exceptions-taken to the account reported by the commissioner, as upon the opinion of this court, that said decree of May, 1878,. is erroneous, no account of rents was necessary or proper.
For the reasons stated, the court is of opinion to reverse-the decree of the 24th of May, 1878, and the subsequent decrees founded upon it, and to- remand the cause to the-circuit court of Washington county, for further proceedings to be had therein, in conformity with this opinion.
- The decree was as follows:
The court is of opinion, for reasons stated in writing- and filed with the record, that William King Heiskell, by the deed of 14th of July, 186-2, conveyed to Thomas L. Preston the entire interest which he purchased from the
In the said sale and purchase the parties, by mutal mistake, having enumerated or computed the shares or interests sold to be less than they actually were, and the amount of purchase money paid was upon that erroneous and mistaken computation, Heiskell was entitled to a correction of the mistake after it was discovered, and to further payment of purchase money or compensation.
The court is of opinion, therefore, that the decree of 24th of May, 1878, is erroneous in holding that William King Heiskell, by his said deed of July 14th, 1862, did not convey to the said Preston his entire interest in the King salt works which he purchased from the Claibornes, but only a part thereof; and that the residue vested in his trustee by the deed of 1869; and that all the proceedings and the decrees of 17th and 18th of January, which are founded on that erroneous decision, are erroneous. Wherefore, it is ordered and decreed that said decrees be reversed and annulled, and that the appellee, Daniel Trigg, trustee, do pay to the appellants their costs expended in the prosecution of their appeal here. And this court, proceeding to make such decree as the court below ought to have made, it is ordered that Thomas L. Preston have leave to file his answer in this cause, and that N. H. Massie be allowed to file his petition to be made a party defendant and have leave to answer plaintiffs’ bill. And the court being of opinion that the matters in controversy touching the question of compensation between said Preston and his assignee, Massie, and the other parties to the suit, cannot be satisfactorily put in issue and adj udicated with-, out a cross-bill, it is decreed and ordered that said Preston
Decree reversed.