95 Va. 50 | Va. | 1897
delivered the opinion of the court.
One of the errors assigned in this case is that the court ought to have allowed an abatement of the purchase price of the land for the loss of 119 walnut trees standing upon the land when sold and conveyed, which had theretofore been sold to other parties, but were not excepted or reserved in the deed.
On the first day of January, 1887, the appellee executed and delivered to W. T. Miller a writing in the following words: “I hereby authorize and empower Wm. T. Miller, of Wise Courthouse, Ya., to sell a certain boundary of land owned by me, situated in Wise county, Ya., on Indian Creek, Indian Ridge and Glady Fork of Pound River, being the land on which I now
“But should said Miller fail to make said sale by the 1st day of September, 1887, or should he, or his assignee, fail to make said first payment by the 1st day of September, 1887, then this agreement, at the option of either party, is to be null and void.
“Witness the following signature and seal the 1st day of January, 1887.
J. T. CHASE. [Seal.]”
Miller was informed by the appellee that he had sold the trees to Horsely, Tate & Co., and that they would not pass with the land. This contract, or writing, after several assignments, was acquired by J. E. Gilliam. On the 30th day of May following, Gilliam entered into a contract with Myers and Gerow, who were maldng contracts for the purchase of lands for the appellant, a corporation not then organized, by which he undertook to make or cause to be made to Myers and Gerow a good and sufficient deed to the land with covenants of general warranty, if they, after thirty days’ time given them to examine the land, determined to purchase. The terms of sale were part cash, and the residue on time. Very soon after Myers and Gerow determined to take the land, they learned from the abstract of title furnished them by their attorneys that the appellee had sold and assigned the walnut trees to other parties, who had recorded their deed therefor, and were also informed by the appellee that the trees had been sold. In August following,
Having knowledge of all the facts before it executed its notes for the land, if it intended to make any objection to the sale, or to demand an abatement of the purchase price on account of its failure to get the trees, such objection or demand ought to have been made at that time. Good faith and’ fair dealing required this, for it knew that the trees had been sold to other parties, and that the appellee did not intend to sell, and could not convey, them to it. Its conduct then and afterwards shows that it waived that objection to the sale, and that its demand nearly five years afterwards for an abatement of the purchase money was an afterthought. Its claim was properly disallowed under all the circumstances and facts of the case.
Another error assigned is to the action of the court in rendering a decree against the appellant for a definite sum before it had ascertained the amount of the Poindexter overlap.
It was claimed by appellant in its answer, and admitted by appellee in his deposition, that an adjoining parcel of land, known as the “Poindexter Tract,” lapped upon the land in con
The release deed ought to have been filed, or the extent of the overlap ascertained before a decree for sale was rendered. The record shows, however, that a release deed was subsequently filed, and also that the overlap was surveyed, and ascertained to be only about one half an acre of land. This is a case where the maxim “de minimis non curat lex” clearly applies, the value of the land in controversy being only about $2.00.
The action of the court in adopting the survey of the land made by Pox, instead of the survey made by Habem, is assigned as error.
Without discussing the evidence upon this point it is sufficient to say that we see no error in the court’s action.
Another ground of error assigned is that the decree which directed the sale, provided that the commissioner who was to make it should, before acting under the decree, execute and acknowledge bond required in such cases before the clerk of the .Circuit Court of Wise county, instead of before the clerk of the Circuit Court of Eussell county, where the suit was pending and the decree entered.
It is plain from the provision of that section that a decree which directed such commissioner to give bond before any other person or tribunal than those named in the statute would be erroneous. By the terms of the statute the bond is required to be given before the court or before the judge of the court, or before the clerk of the court in his office — and the clerk of that court is required to certify that this has been done.
If the court had fixed the penalty of the bond in the decree complained of, and said nothing about the officer before whom it should be executed, there would have been no error in the decree, as the statute provided before whom this should be done; but the decree provides that he shall execute and acknowledge bond before the clerk of the Circuit Court of Wise county, which is in plain violation of the express provision of the statute. The statute is a wise one, passed to protect purchasers at judicial sales, and to prevent them from being compelled to pay the purchase price of land a second time, as they were frequently compelled to do prior to its enactment, and should be carefully upheld and enforced by the courts.
The appellee insists that the court erred in directing the survey of the land to be made by horizontal instead of surface measurement, and to that extent the decree complained of is prejudicial to him, and asks for its reversal upon this point under Rule IX of the court.
It is claimed that there was a parol agreement between appellee and Gilliam, who sold the land to appellant, that it was to be surveyed by surface measurement, and that the appellant is bound by such agreement. Rone of the writings between the parties show that it was to be so measured, and the evidence does not show that the appellant, or Myers and Gerow, who made the purchase, knew of any such agreement.
It is also claimed that it was the custpm in that country or locality to make surveys by surface measurement, and that the parties are therefore presumed to have contracted with reference to such custom.
It is well settled in this State that a local custom or usage cannot be relied on where it is inconsistent with the terms of the written contract between the parties. Harris v. Carson, 7 Leigh 639; Mason v. Moyers, 2 Rob. 613; Gross v. Criss, 3 Gratt. 250; Delaplane v. Crenshaw, 15 Gratt. 457; Richlands v. Hiltebeitel, 92 Va. 91; Reese & Co. v. Bates, 94 Va. 321, and Hansbrough v. Neal, 94 Va. 722.
Neither, it would seem, can it be relied on when it is in conflict with the well-settled rules of law. 2 Minor’s Inst. 1061 (4th Ed.); Barnard v. Kellogg, 10 Wall. 390; 2 Smith’s Leading Cases (7th Ed.), p. 915, and note, where many cases are cited.
The accurate and legal mode of surveying land is by hori
But if, in any view of this case, the appellee was entitled to show that the contract was made with reference to a local usage or custom, it could not avail him, because he has failed to prove that there was an established usage, general and notorious in that locality, with that degree of certainty which the law requires in such cases. The only witness who testified upon that point was the appellee. He was asked: “What has been and was at the time you made this deed the custom of the county in reference to making surveys?” And in reply said: “Surface measurement. I had heard of horizontal measurement, or I should not have been so particular about having it mentioned that the land was to be surface measurement, though the custom was surface measurement.”
It has been doubted in some cases whether one witness is sufficient to prove a local custom or usage, but it seems now to be settled that a jury may be justified in regarding the usage as established by one witness where it appears that he has full knowledge and long experience on the subject about which he speaks, and testifies explicitly to the duration and universality of the usage, and is not contradicted. Robinson v. United States, 15 Wall. 363; Jones v. Hoey, 128 Mass. 584; 1 Greenleaf on Ev., sec. 260 and note. There is nothing in the record to show that this witness, who was an interested party, had any such knowledge or experience on the subject as would enable him to prove the custom. Neither does he prove, as the law requires, that it was an established usage or custom, general and notorious in that locality. Hansbrough v. Neal, supra.
We are of opinion, on the whole case, that there is no error in the decree complained of for which it should be reversed, but that the decree should be amended, and, as amended, affirmed.
Amended and affirmed.