55 W. Va. 30 | W. Va. | 1904
William Ratliff filed his bill in the circuit court of Lewis county against Martha M. Sommers el al., heirs at law, and administrator da bonis non with the will annexed of G. D. Camden, deceased, for the purpose of enforcing specific performance of a contract made with the said G. D. Camden in his lifetime, for a tract of eighty-eight and three-fourth acres of land on Oil Creek, setting forth the metes and bounds thereof in his will, alleging that negotiations were commenced as early as 1874 for the purchase of said land, and filed with his bill as exhibits, certain letters and fragments of letters from
“Win. Ratliff, Esq. Your letter was duly received some weeks before we left home and I expected to have written jrou before we left but was too busy to look over your account since coming here T have looked it over and find it alright. I wish 3rou would buy the land and you can have it for $4 an acre. I will let your account of $150 go as payment on the land. If you wish it and you can have all the time you wish to finish paying for the land. Please see that no one cuts any of the timber on adjoining- lands. Yours truly, G. D. Camden, per Mrs. G. D. Camden, Florida, March 28th, 1884.”
“Eureka Springs, March 20th, 1888. Wm. Ratliff, Esq. I received your letter and I am glad to hear you are well. I am much improved since I came here. I thank you very much for the money you sent $160. This about or quite pays off your land and you better take the other little piece that joins you and you will have a nice farm on Oil Creek. My lands give me so much trouble to keep people from stealing the timber that I am going to sell them all. Please regard this letter as a receipt. I will be home soon and will make a deed. Yours truly, G. D. Camden, per Mrs. Camden.”
He alleged that said letters so received constitute a valid and binding contract against said Camden and his estate for the specific conveyance by deed to plaintiff of said tract of land; that plaintiff had control and management of quite a quantity of said Camden’s lands in Lewis county and was employed by Camden to watch and look after the same and keep trespassers from cutting timber and doing damage to the same, and for which work Camden promised, verbally and in writing, to pay him therefor, and the same was to go as a credit on said land purchase, which work, with the cash shown by said receipts to have been paid on said land had fully and more than paid for said tract at the price of $4 per acre; that at the date of the letters, written from Florida, Camden possessed a large number of tracts in Lewis county and had extensive business interests generally, and about the date of the said letters his health became impaired but he retained his mental vigor up to the time of his death, and during the period of 1884 and up to 1889 his wife, Mrs. Camden, was authorized by him, to do
The defendant, Charles W. Lynch, administrator, filed his demurrer and answer to the bill, and for ground of demurrer said that Myra EL Camden who was named in the process, but not made a party by the bill, but expressly stated therein not to be a necessary or material party, was a necessary party to the bill, and pleaded the statute of limitations, and answered denying that G-. D. Camden had ever sold the land to _ plaintiff as claimed in his bill, and averring that John D. Davis and T. 23. Camden, trustees named in a settlement made between the heirs and Myra H. Camden concerning the contest of the will, by deed dated the 21st of March, 1895, conveyed to the said heirs at law “All and singular, all the unsold and remaining lands that were conyeved to parties of the first part (trustees) by the deed aforesaid for the purposes in said deed mentioned, in the State of West Virginia, and elsewhere in any other state or country, and all the lands conveyed by said G. D. Camden to said Myra H. Camden and not sold and not conveyed by the said G. D. Camden, or sold and conveyed to her by parties of the first part." The defendants, Martha M. Sommers et al, heirs at law, also filed their demurrer and answer, insisting that Myra El. Camden was a necessary party to the suit, and denying the sale to the plaintiff, as alleged in the bill. Depositions were taken and filed in the cause, and on the 18th day of March, 1899, the plaintiff tendered his amended bill which was filed and remanded to rules for the purpose of issuing process thereon and maturing the cause for hearing. The amended bill alleged that Myra H. Camden, who had intermarried with G. W. Atkinson, was a necessary party to the suit, and alleging in said bill, that said G. W.
On the 23rd of June, 1899, the defendants, the heirs at law, and R. M. Ramsburg,. administrator of G. D. Camden, deceased, who had been appointed in the place of Charles W. Lynch, moved the court to reject the said amended bill for the reasons set out in a paper filed with the. said motion, and also excepted to much of the deposition of Louis Bennett, filed March 11, 1899, and the depositions of R. B. Brinkley and W. C. Ratliff, filed March 1, 1899, as related to the alleged contract or writing made by W. B. McGary referred to in the amended bill. The court overruled the motion to strike out the amended bill, but sustained the exceptions to the depositions of Louis Bennett, R. B. Brinkley, and W. C. Ratliff, and suppressed so much of said depositions as related to the alleged
T'he defendants, Dora B. Bamsburg, Genevieve B. Parr, Martha M. Sommers, and Wilson L. Camden, appealed from said decree, asigning as errors that the contract was not proved as alleged; that the evidence in support of plaintiff's preten-
It clearly appears from the record, that Myra H. Atkinson was a necessary party to the suit as the legal title to the land in question remained in her, if the negotiations between Ratliff and Camden in his lifetime amounted to a sale of the land and if the court should so hold it would then become necessary for her to make the conveyance to the plaintiff, so that, as far as parties to the suit were concerned, an amended bill was necessary to bring her and her husband in as parties. In Rexroad v. McQuain, 24 W. Va. 32, (syl. pt. 1), it is held: “It is a cardinal rule in equity that all persons materially interested, either legally or beneficially in the subject matter of the suit must be made parties to the suit.” Gall v. Gall, 50 W. Va. 523; 1 Hogg’s Eq. Proc. sections 36, 333 & 334. When the proofs in a cause show that the plaintiff had a cause of action which entitled him to relief, that it is of similar nature to that alleged.in Ms bill, and much as might be made available by proper amendments of his bill, the court will not dismiss the original bill without giving plaintiff an opportunity to amend within a reasonable time. Doonan v. Glynn, 26 W. Va. 225. “A plaintiff in a suit in chancery can only obtain relief upon the case made in his bill and not on a substantially different case made by the proof. But where the case made by the proof shows a right to relief and is not so different from the case made in the bill that under the rules of chancery pleading it could not be amended the plaintiff will be allowed to amend his 'bill to conform to the true state of the case.” Lamb v. Cecil, 25 W. Va. 388, (syl. pt. 3); Lamb v. Cecil, 26 W. Va. 653; and to the same effect 1 Enc. PL & Pr., 485, and cases there cited. The amended bill in case at bar in no wise contradicts the allegations of the original bill or is inconsistent therewith. It alleged a parol sale of the land in 1886 or 1887, as shown by the original bill showing negotiations and acknowledgments of plaintiff’s payments and rights; and, as further evidence of said sale and its payment the amended bill also refers to the writing made by McG-ary at the instance of Camden and at the request of plaintiff. Section 12, chapter
Where the purchaser has been placed in possession and held under the contract and paid all or part of the purchase money, and made valuable and permanent improvements upon the land and such possession having been actual, and exclusive, and not as a tenant of the vendor, when this can be shown to the satisfaction of a court of equity he can maintain his bill for specific performance. Miller v. Lorentz, 39 W. Va. 160; Gallagher v. Gallagher, 31 W. Va. 9; Goodwin v. Bartlelt, 43 W Va. 332; Middleton v. Selby, 19 W. Va. 167, (syl. pt. 4).
The original bill does not set up the writing made by W. B. McGary, agent of Camden, dated the 24th day of June, 1888. While tire paper written by McGary is some times referred to as a sale of the land, jret it was not, strictly speaking, a sale. It was a mere memorandum to show that the sale had formerly taken place, and that the purchase money for the land had been paid by Ratliff, and that he was entitled to a deed. The evidence of Brinkley, and McGary, touching the interview between Camden and Ratliff at the Bailey House, leading to the making of the paper by McGary, was competent to be given under the original bill as it referred to negotiations which had taken place between Camden and Ratliff at times prior to that and to statements then made by Camden as to Ratliff’s right to. the land and to a deed therefor.
As to the introduction of the paper writing prepared by Mc-Gary, it is insisted by appellant that the foundation is not sufficiently laid to prove its contents as a lost paper. Witness Louis Bennett, states that W. C. Ratliff brought the paper to him and showed it to him; that he made a memorandum of it, and he thinks he gave it back to Ratliff, intending to make it a part of his deposition as proof of the sale; that he-had looked carefully through his papers first, wherever he thought it might be found and had insisted upon W. C. Ratliff making a like search; that they had not succeeded in finding it, and that witness did not know where it was; that the paper was dated June 24, 1888, and was in the handwriting of W. B. McGary; that it bore evidence of some age and described the paper upon which it was written, and states that his memorandum taken from the paper at the
It would seem that this evidence of the fact that Camden had placed plaintiff in possession of the land which he has ever since held under the contract of sale and promised to make a deed to the plaintiff would be quite sufficient to entitle the plaintiff to relief, but taken in connection with the evidence of services rendered to Judge Camden by the plaintiff after March, 1884, the date of the allowance for services of $150.00 seems to me to fully meet the requirements of the law as laid down in Gallagher v. Gallagher, 31 W. Va. 9; Boggs v. Bodkin, 32 W. Va. 566; Harris v. Elliott, 45 W. Va. 245; Hogg’s Eq. Prae. 398, and cases cited. In addition to the oral testimony just mentioned the two exhibits filed with the original bill being letters dated March 28, 1884, and March 20, 1888, together with the evidence establishing the genuineness of these letters and receipts makes a decided preponderance of evidence sustaining the decree. The principal defence attempted in this ease is to establish a conspiracy in which Mrs. Camden, now Atkinson, was the chief actor, to injure and destroy the estate, as far as it might be, of Judge Camden, and appellants have injected into the case in the way of testimony quite a large part of the trial of Owens and Mrs. Camden upon indictments against them in Gilmer county. But all this goes for naught here, if these two letters aro proved genuine and they fail to connect the plaintiff with such conspiracy, if such there was, and if the letters were written at the dates they bear they utterly fail to connect him with it. Such conspiracy if it existed, could not have been even thought of at the dates the letters bear. Without mentioning the testimony of Elizabeth C. Ratliff, the wife of plaintiff, in regard to the payment of the $160.00 mentioned in the letter of the 20th o£ March, 1888. The fact of the money being sent and letters received, as well as the receipt of the letter of March 24, 1884, is proved by W. G. Ratliff. The letter of March 20, 1888, is also proved by Martha A. Ratliff; and Joseph O. Keith testi- • fies that he saw these two letters with Ratliff’s papers in 1888,
As to the question of the statute of limitations, the plaintiff was in possession from 1887, and being in possession the doctrine of laches does not apply. Abbott v. L'Hommedieu, 10 W. Va. 678; Zane v. Zane, 6 Munf. 406; Ballard v. Ballard, 25 W. Va. 470, (syl. pt. 3). Appellants in their brief raise the question as to the propriety at least, of attorneys for appellee testifying in the cause, and cite authorities disapproving the practice. We agree with appellants that as a rule it is not proper, but like all other rules, there are exceptions; as stated in Potter v. Inhabitants of Ware, 1 Cush. 519, cited by appellants where it is held: “In most cases counsel cannot testify for their client without subjecting themselves to just reprehension. But there may lie cases in which they can do it not only without dishonor, but in which it is their duty to do it. Such cases, however, are rare; and whenever they occur they necessarily cause great pain to counsel of the right spirit.” We think it clearly appears that this case is a just exception to the rule; especially in the case .of the attorney and witness, Louis Bennett, to whom the witness, W. C. Ratliff, had delivered the writing which was lost and it could not be accounted for without the testimony of Bennett who was the only person who had possession of the paper besides W. 0. Ratliff after Brinkley delivered it to said Ratliff and it was absolutely necessary for him to show what he did with it or to account for it by showing that if left with him it was lost or mislaid and could not be found, the possession of it laid between him and W. C. Ratliff and neither one of them alone could account for it; the evidence of both was necessary.
Appellants in their brief assert that the Judge who heard the case and rendered the decree was disqualified, and base their charge of - disqualification upon the affidavit of R. M. Ramsburg, administrator, of G-. D. Camden, deceased, to the effect that in a suit pending in Harrison county in the name of Despard et al., plaintiffs, v. G. D. Camden and J. M. Bennett, defendants, wherein the heirs and devisees of J. M. Bennett, the said Judge being one of the heirs, and the heirs and devisees of Despard and
It appears from the brief of counsel for appellants that the theory of the disqualification is the fact of the judge having an interest in the litigation mentioned in Harrison county wherein his brother, Louis Bennett, and Mrs. Camden, witnesses for appellant in this case, are also witnesses in the litigation mentioned in Harrison county, and that it was improper for the Judge in this case to pass upon the weight of their tesitmony, as he would be interested in sustaining the testimony of the witnesses; that he is interested in maintaining their credit. It is not contended that he has any pecuniary or other interest in the case at bar. In Forest Coal Company v. Doolittle, 46 S. E. 328, (syl. pt. 3), it is held: “In order to disqualify, the interest of the Judge must be in subject matter of the cause, and not merely in a legal question involved in it.” It may not be out of place to say here, that the first appeal mentioned in the affidavit of Ramsburg as pending in the Supreme Court of Appeals was dismissed by the Court, 49 W. Ya. 225; and the second appeal from the order of refusing the filing of the bill of review was affirmed by that Court, 50 W. Ya. 119.
There being no reversible error in the decree the same is affirmed.
Affirmed.