85 W. Va. 15 | W. Va. | 1919
The decree complained of enforces the lien of a deed of trust on two certain tracts of land, securing the payment of a note for $2,200.00, less payments thereon amounting to $1,100.00, and denies the prayer of a cross-hill answer filed by the defendants and seeking specific performance of a contract of sale of other land and prevention of enforcement of the trust deed lien, on the theory of an agreement on the part of the holder of that lien, to apply the lien debt on purchase money due from him to the defendants under the alleged contract of sale.
Whether the bill stated a good cause of action seems to be doubted by counsel for both plaintiff and defendants, but they insist that the situation disclosed by the pleadings read as a whole make out a cause of equitable cognizance. They treat the defect in the bill as having been cured or supplied by matter disclosed by the answer. In as much as the question is one of procedure, not jurisdiction, and the parties desire a decree determining their rights, there is no occasion for an inquiry as to the technical correctness of the procedure or the sufficiency of the pleadings in point of form. The bill ought to have set up the agreement relied upon in the answer and the controversy growing out of it, as constituting an impediment to a sale by the trustee, but this is admitted by the answer.
The deed of trust was executed by H. M. Bourn and R. H. Bourn, husband and wife, Dec. 12, 1914, to secure payment of their $2,200.09 note executed in favor of (X R. Bourn and dated, Hay 4, 1914. Rollyson, while indebted'to H. M. Bourn and R. H. Bourn for purchase money of land, bought the O. H. Bourn note subject to credits amounting to $1,100.00, with the understanding that H. M. Bourn & R. H. Bourn would allow him to off-set it against his indebtedness to them in the sum of $2,-100.00. Having attempted to rescind his purchase and claiming he had done so, or was excused from performance of-the contract, he brought this suit to enforce the lien of the deed of trust.
His retention of the residence lot constitutes an insuperable obstacle to rescission, if the contract was entire and inseparable, for, in the absence of an agreement otherwise providing, rescission must be total. Hutton v. Dewing, 42 W. Va. 691; Castle v. Gibson, 11 W. Va. 116. Realizing this, he claims the two deals were separate and distinct, although entered into at the same time and evidenced by the same paper. This position is untenable. It cannot be assumed that the Bourns would have sold or traded only one of the two pieces of property. As both were combined in a single contract, it must be assumed that both pieces constituted the subject matter of their side of the contract, notwithstanding the fixing of separate prices or recitals of separate considerations. Hermann v. Goddard, 82 W. Va. 520.
Within a year from the date of the contract, the Bourns tendered their deed. At that time they had paid the vendors lien debt on the land, which amounted to only $67.00, and obtained a release, but had not paid the Philip S. Perkins debt amounting to $850,00 and secured on the land by a deed of trust. It seems not to be disputed that the amount due the Bourns from Bolly-son was sufficient to discharge the C. E. Bourn note and the Perkins debt, at the date of the tender of the deed. Under these circumstances, the existence of the liens did not justify repudiation of the contract. Armstrong v. Maryland Coal Co., 67 W. Va. 589, 611; Hudson v. Max Meadows & Co., 97 Va. 343; Garnett v. Macon, 6 Call. 308, 369. Though the contract does not mention the liens on the property, it is evident that the purchaser was aware of them, for consummation of the deal was delayed on account thereof, and, -in the meantime, he took possession of the land. Nor is it shown that any change had oc
Although at tbe dates of tbe contract and the filing of the answer praying cross-relief, tbe legal title was outstanding in a trustee, tbe trust deed lien was only an encumbrance susceptible of removal by payment by either vendor or vendee. No reconveyance by tbe trustee was necessary. Tbe title was held only as security for tbe debt, and payment and a release terminated or defeated it. Tbe trustee’s title was legal, but de-feasible by payment of tbe debt secured by tbe deed of trust. Taylor v. King, 6 Munf. 358; Harris v. Harris, 6 Munf. 367; Angel v. Marshall, 55 W. Va. 679.
Tbe alleged defect in tbe title did not justify repudiation of tbe contract. If there is any at all, it is insignificant. According to the vendee’s own testimony, tbe adverse bolding by Mollohan, if any, does not amount to more than one-half of an acre, and that is not shown to have any peculiar value. He can obtain substantially all be contracted for, with an abatement of purchase money for tbe deficiency, if there is any, and tbat suffices. Creigh v. Boggs, 19 W. Va. 240; McKeen v. Bailey, 11 Gratt. 340; Jackson v. Ligon, 3 Leigh 161; Evans v. Kingsberry, 2 Rand. 131.
Taken and considered together and regarded as a whole, the matters of defense specifically set up do not constitute ground
The deed tendered by the vendors contains a provision not warranted by anything in the contract, namely, one requiring the vendee to pay the taxes on the oil and gas in the land, one-half of which was reserved.
Our conclusion is to reverse the decree complained of and enter a decree here, requiring specific performance of the contract set up in the cross-bill answer, subject to an abatement of purchase money on account of deficiency in the land, if any; application of the C. R. Bourn debt and its interest to partial payment of the purchase money and interest theTeon from the date of the contract; and release of the deed of trust securing payment
Reversed, decree for defendants, remanded.