25 W. Va. 387 | W. Va. | 1884
It appears that Bond filed a petition and bond lor the removal of the cause to the circuit court of the United States and that the State court refused to remove the same. But as that error, if it is error, is expressly waived here, it will not be considered. It is here insisted for appellant, that under the pleadings and proof in this case no personal decree could have been rendered against him. The evidence is clear, that Bond was not acting for himself at all, when he entered into the contract with Dungan, but was the agent of the Great Kanawha Land Association, and that Dungan knew the fact at the time, and that Dungan knew that the greater part of the $30,000.00 then paid in cash was paid by the said Bond as agent for Bishop "Whitehouse on the $100,000.00 mortgage, which ho held on the lands; and the evidence further shows, that Dungan gave the checks for the other $30,000.00 not to Bond but to Bishop Whitehouse. There is no evidence in the record, that at the time Thomas Bond had any interest whatever in the lands he was selling. The contract does not provide that in any event the money was to be paid personally by Bond, but in case of the election of either Bond or Dungan was to be paid “out of the proceeds of the sale of said estate.” It seems that there never was any election by either.
The decree was erroneous in holding Bond personally liable for the repayment of the $30,000.0(1
It is insisted, that there is no evidence, that Dungan was acting for Smith. It seems to me that the weight of the evidence shows, that he was so acting, and that he was making an investment of Smith’s money for the benefit of Smith.
It is also claimed, that equity has no jurisdiction in this cause except under the statute permitting a foreign attach
But it is insisted, that a groat portion of the land has already been sold, and the money ought to have been paid out of that. Bond in his answer says, that the proceeds of the sale of lands was not sufficient to pay the taxes and expenses, and the proof is not clear how this is. At the time the suit was brought it is not clearly shown how much land had been sold and to whom, nor whether the purchaser had any notice of the contract sot up in the bill.
It is insisted for the defendants, that, as the $60,000.00 was not paid but only $30,000.00, the latter was forfeited, and there is no liability to pay it back. It is a fact undenied, that the $30,000.00 was paid, and the defendants got the benefit of it. The contract did not provide in any event for the forfeiture of the amount paid, and the payment of the whole $60,000.00 in cash was modified by taking the one half in cash and the other in checks.
Under the circumstances in this case it would be inequitable not to require the repayment out of the proceeds of the land of the $30,000.00 and its interest; and it should be decreed to be a charge on the unsold lands and on such as was purchased with notice of the contract. And if the lands have been all sold to innocent purchasers, then there should be a personal decree against those who were, when the contract was made, partners in the Great Kanawha Land Association.
But it is insisted that the claim is barred by the statute of limitations. The statute would not apply to an equitable demand of the character of the one shown in this cause; and under the circumstances the doctrine of laches could not apply.
The court clearly erred in dismissing the bill as to the members of the Land Association.
The whole frame of the bill proceeds against Thomas
The decree of the circuit court of Putnam county rendered on April 30, 1877, is reversed with costs to the appellant; and this cause is remanded with leave to the plaintiff to amend his hill as herein indicated, and for further proceedings to be had therein.
Reversed. Remanded.
