33 W. Va. 375 | W. Va. | 1889
The plaintiffs H. W. Straley and David E. Johnston filed their bill at November rules, 1885, in the Circuit Court of Mercer county against George W. Perdue, charging that on the 14th day of December, 1881, they purchased by contract in writing from said Perdue all of the coal contained on, in, beneath and over the surface of all and every part, parcel and acre of two tracts or parcels of land, one of which is situated on the waters of Simmon’s Creek, of Blue-stone river, the same on which said Perdue then resided and which was conveyed to him by Henry Bell, but there was
When the laud was shortly afterwards surveyed by one J. A. Welch, the quantity of the first named tract was ascertained to bel55¿ acres, including said twenty five acres reserved as aforesaid, and in the second named tract forty and one half acres. The plaintiffs claim that they regarded the survey made and reported by said Welch as correct at the time it was made, as the defendant was familiar with the said lands, their boundaries, etc., and was interested in seeing they were correctly surveyed, and that defendant also regarded said survey as correct, as he raised no objection thereto and paid the expenses of the surveys without question as to the correctness of the same; that plaintiffs knew the locality of said tracts of land, but were wholly ignorant as to- the lines and corners thereof or the exterior boundaries thereof, with
In the contract with reference to the purchase of said fifty acre tract lying on Mill Creek, it is stated that it is understood that one W. S. Witten, was setting up a claim to some thirty acres thereof, which was to be excluded from the sale if Witten held the same, of this tract the defendant only conveyed to plaintiffs seven and seven eighths acres, it being then understood that Witten would hold the residue, but plaintiffs allege that they have learned that defendant now claims that he will hold said residue against said Witten, and does not
Plaintiffs claim that they are not advised as to whether defendant’s claim is superior to Witten’s, but if such should be the case, they allege the fact was well known to the defendant at the time he conveyed to plaintiffs the seven and seven eighths acres of said tract, or rather the coal therein, and that they have a right to a conveyance of the same if defendant has title thereto.
Plaintiffs further allege that the defendant being well acquainted with the lines and corners of said “home tract,” purpose^ and intentionally misled said surveyor as to the true lines and corners of said survey for the express purpose of excluding said nineteen acres therefrom, the coal in which he well knew he had sold to plaintiffs, or else acting in honest mistake and ignorance of the true lines and corners misled the surveyor and thereby caused said nineteen acres to be omitted from said survey; and that at the time of said 'conveyance he either knew the same had been omitted and concealed the fact from plaintiffs, or was ignorant and innocently mistaken and misled the plaintiffs, which resulted in mutual mistake, and in either event plaintiffs had failed to get what they contracted for, and he has not conveyed to them what he contracted to convey.
Plaintiffs farther state that a careful and accurate survey of said “home tract” recently made, shows that said tract including the nineteen acres aforesaid, contained 196 56-100 acres, and within the lines of defendant’s deed to plaintiffs there are instead of 155-J- acres 177J acres, making an excess of twenty two acres within the boundaries contained in said deed, and 19 50-100 acres inside of said boundaries, thus making 41-|- acres, for which plaintiffs have not paid defendants ; that as soon as they ascertained the true, number of acres contained in said tract, they tendered the purchase-money for same with its accrued interest and demanded a deed- for same, from defendant, which said defendant declined, and plaintiffs pray a specific execution- of said contract.
Upon the calling of this cause on the 13tlrday of March, 1886, the defendant moved to dismiss the same for want
The defendant by his answer denied every material allegation in the plaintiff’s bill contained,, and especially any attempt to deceive or defraud the plaintiffs in regard to the number of acres of coal contained in said “home tract,” claiming that being ignorant of the locality of the lines and corners of said tract, he employed a man by the name of Belcher, who professed to be acquainted with said lines and corners to go with said surveyor Welch, and point them out, which he attempted to do, and said Welch cursed him and refused to be guided by him, and declared he would run said land by the papers in his possession, and the defendant claims that after he was advised that said surveyor had left out said strip of land not included in the survey made by him, he informed said David E. Johnston about the matter and asked him if he was going to take the strip of land supposed to have been left out of the survey made as aforesaid, and said Johnston replied he would not take it, as it might get the defendant into trouble over it some time; that when said fifty acre tract was surveyed, it was found to contain only forty two acres and that seven and three eighths acres was all the land in said tract not conveyed by said supposed Witten claim, and when defendant executed the deed for said seven and three eighths acres, said Johnston positively refused to accept a deed for the balance of said tract, to wit: 34-g acres, or to pay him for the same, and it was then and there understood between the parties that the plaintiffs would have nothing to do with said
The defendant also claims that the plaintiffs purchased an adjoining tract known as the McNutt tract, and that in having the same run off they embraced in the boundary thereof, said 19 39-100 acres above mentioned, and afterwards sold said McNutt tract for a much larger price than the adjoining lands, and being unable to make a good title for said strip of land they are now seeking to obtain a titlefor said land for which they declined to receive a deed when the other portion of said “home tract” was conveyed, after they have admitted the contract to be fully complied with by accepting a deed, drawn ■ by •themselves, for a tract of land surveyed by their own surveyor, who fully apprised them as to all the facts in regard to said boundaries.
Several depositions were taken and filed in the cause by plaintiffs and defendants, and on the 25th day of February, 1887, the court proceeded to enter a decree in this cause, directing that the plaintiffs pay to the defendant George W. Perdue, or to B. L. Iloge, general receiver of the court, the amount of $3.00 per acre with accrued interest for the 41 39-100 acres of the “home tract” of land in the bill and proceedings mentioned, and the farther sum of $3.00 per acre and accrued inserest, for the 34§ acres of the Mill Creek tract mentioned in the bill and proceedings in this cause, amounting at the date of said- decree to- $267.14, and directed that upon payment of said sums of money, George W. Perdue should execute and file among the papers in the cause a deed in -which his wife should unite convoying to plaintiffs the coal under the 19 39-100 acres of land mentioned in the plaintiff's bill,
There can be no question as to the sale made by the defendant, George W. Perdue, on the 14th day of December, 1881, by written contract of that date, of all the coal in the tract known as the “home tract,” with the exception of twenty five acres thereof expressly reserved, or that by the same agreement he sold all the coal in another tract in the-tract conveyed to him by Zachariah Perdue, situated on the' head branches of Mill Creek, both of which tracts are situated in Mercer County, and that the ’ plaintiffs became the purchasers thereof, for the price of three dollars per acre. It however, appears that in surveying said “home tract” for the purpose of properly describing the same, that the surveyor (although furnished by the plaintiffs with the courses and distances and aided by the defendant and one Belcher, who claimed to have known the tract-for years,) either frond his refusal to be guided or directed by the defendant or said Belcher, as to the locality of the lines and corners, a strip of
The plaintiffs in their bill allege that at the time they paid to defendant the purchase-money for said coal, and took the deeds aforesaid, and surrendered said title-bond, they then believed they had paid for all the coal embraced in their said contract made with the defendant on the 14th day of December, 1881, except that claimed by W. S. Wit-ten out of the fifty acre tract, until a few months before the bill was filed, they incidentally heard that the defendant was offering to sell the coal in and under a parcel of some nineteen acres, part of defendant’s “home tract,” and that he claimed to not have conveyed said parcel of nineteen acres to the plaintiffs. The defendant in his answer denies this allegation and claims that the surveyor J. A. Welch, agent of plaintiffs, informed the plaintiffs at least, II. W. Straley, one of the plaintiffs, about the 19 39-100 acres left out of said survey, and he himself talked with D. E, Johnston about it, and for that reason said Johnston refused to have a deed made for it: 1'n regard to notice, that said 19 39-100 acres was not included in the survey made by Welch, or embraced in the deed, the plaintiffs having the affirmative their evidence must preponderate. Upon this question, while it is true that the plaintiff, David E. Johnston, in his deposition states that he was not aware that said 19 39-100 acres had been left out of the survey made-by Welch, and conveyance made by Gf. W. Perdue, until a short time before this suit was brought, and H. W. Straley in his deposition states that he did not know or discover that
The plaintiffs, as to the allegation in their bill that the defendant prevented said 19 39--100 acres from being included in. said survey and conveyance either by fraud or mistake, and that it was accomplished by the defendant whether wil-fully. and fraudulently, or mistakenly, by stopping the surveyor short on a given line of said survey of the true and proper corner, and running off at right angles, by which the nineteen acre parcel was left out or excluded from said survey and calcu'ation of quantity, must also assume the affirmative and preponderate in the testimony; but when we refer to the evidence of the parties who accompanied said surveyors and heard his declarations and witnessed his conduct, it appears that he cursed those who proposed to give him any information in regard to the lines and corners, and told them he was running by the papers; and the evidence discloses the fact that the papers referred to were the courses and distances which had been copied by plaintiffs and furnished to him, and the evidence shows that he was in no manner con-troled, guided or deceived by any person who attended said survey; and said surveyor Welch, whose testimony was taken in the cause, does not pretend that he was misled or deceived by any one in regard to the lines and corners of said survey. H. D. Belcher, who was present, states that he was unable to find the corner in Broad Hollow, although he had helped to run the survey before, but showed him a point in ten or fifteen steps of where the corner has since been found, but said surveyor went back to a point where he had made a corner and run through towards Caswell’s branch, and when asked by said Belcher to run in another direction he said “Ho, the company had furnished him courses and he had to run by them.” It can not then be claimed that this surveyor was misled by any person, or in any manner deceived by representations made to him as to the locality of said lines or corners.
In the case of Ballard v. Ballard, 25 W. Va. 471, this Court held that a written contract for the sale of land may be rescinded by a subsequent parol agreement, but to make such agreement effectual it must have been fully executed and be established by clear and conclusive proof. In the case under consideration the agreement, so far as said 19 39-100 acres was concerned, was certainly rescinded, the plaintiffs declining to include it when their attention was called to it; and the deed was executed and delivered omitting to convey said strip; and the title-bond was surrendered.- What more could have been done tq fully execute the rescission of the contract as to said 19 39-100 acres?
In the case of Glass v. Hulbert, 102 Mass. 24, which was a case somewhat similar to this, “The defendant made a conveyance
• And in the case of Miner v. Edwards, et al., 12 Missouri 137, it is held that “The acceptance of a deed of inferior value to that to which a grantee is by his contract entitled, is equivalent to a waiver of such better deed.” See Phelps v. Seely, et als., 22 Gratt. 573; Hilliard on Vendors, ch. 10, § 19, p. 173, also Dearborn v. Cress, 7 Com. R. 48, and Balwin v. Satter, 8 Paige R. 473, Jarrel v. Parrel, 27 W. Va. R. 743. If any evidence was wanting as-to the intention of the defendant George W. Perdue to sell the coal under his land at $3.00 per acre, and that he had no purpose of excluding any portion of his coal in said land from sale, it is found in the fact that on the same day he executed and delivered a deed for the coal under the Rome-,tract, he also executed and delivered a deed to plaintiffs for the twenty five acres he had reserved around his house. The evidence in the case clearly indicates to my mind that the parol agreement to rescind was not only made but fully executed as to the 19 39-100 acre’tract. As to the fifty acre tract on Mill Creekj it appears that there were but forty two acres of it, and on account of a claim set up to a part of it by one Scott Witten, which the plaintiff Johnston regarded as a better title, he declined to accept a deed for
For these reasons the decree rendered in this cause on the 25th day of February 1887, must be reversed and the plaintiff’s bill dismissed, and the appellees must pay the costs of this appeal.
Reversed.