46 W. Va. 582 | W. Va. | 1899
On the 9th. day of December, 1897, James B. Sandusky and Moses W. Spencer executed a written agreement of gale and purchase of a certain tract of land lying in Har
The cases of Broyles v. Bee, 18 W. Va. 514; Wamsley v. Stalnaker, 24 W Va. 214; Kimports v. Rawson, 29 W. Va. 488, (2 S. E. 85;) and Heavner v. Morgan, 30 W. Va. 335, (4 S. E. 406,) — are not in point here, for the reason that in all those cases the contracts had been carried out by the execution of a general warranty deed, and possession delivered and-taken thereunder, while in this case the contract is wholly executory, the purchase money being unpaid, except the one hundred dollars down, and possession has not been delivered but remains with the vendor. The contract has not been so far executed that either party would be injured by its rescission, except probably Sandusky or his creditors would lo;se the benefit of a good sale. Yet in these piping times of prosperity the land should be increasing, and not decreasing, in value. Specific performance of a contract to sell land will not be decreed in favor of the vendor unless his ability to make a title be unquestionable. Griffin's Ex'r v. Cunningham, 19 Grat. 571. “A defendant in proceedings for specific performance shall not be compelled to accept a title in the least degree doubtful. It is not necessary that he should satisfy the court that the title is defective, so that he ought to prevail at law. It is enough if it appears to be subject to adverse claims which are of such a nature as may reasonably be expected to expose the purchase to controversy to maintain his title or rights incident to it. He ought not to be subjected, against hi<s agreement or consent, to the necessity of litigation to remove even that which is only a cloud on his title.’’ Jeffries v. Jeffries, 117 Mass. 184; Butts v. Andrews, 136 Mass 221; Commissioners v. Armstrong, 45 N. Y. 234; Cunningham v. Blake, 121 Mass. 333 In the case of Christian v. Cabell, 22 Grat. 82, it was held: “ (1) In the contract
Sandusky not only concealed the existence of the various liens against the property, but stated that the original Coplin trust was the only existing lien, which was controlled by himself. The plaintiff, as he ,says, is an old man,
Reversed,