Sturm v. Parish

1 W. Va. 125 | W. Va. | 1865

Berkshire, President,

delivered the opinion of the court.

The only error complained of by the appellant, is that of the final decree which requires him to refund and pay to the appellee, Parish, the sum of 212 dollars and 13 cents, with interest from the 20th of February, 1855, it being the residue of the purchase money due the ajopellant from the appellee Downs, which Parish had on that day paid to the appellant.

At the time of the payment, it appears that both Parish and Sturm knew that Downs had previously sold the residue of the premises in controversy to the appellees Patton and Sharp; and Parish had also filed his amended bills alleging the fact, and making them, and those claiming under them,parties to the cause; and a master of the court to whom the cause had been referred, had also filed his report stating distinctly that Downs had so sold to Patton and Sharp, and that the parts sold to them were liable for the residue of the purchase money due the appellant.

Previous to this time, to wit, on the 3d day of February, 1855, Sturm, as appears from his answer to the last amended bill, conveyed the part so purchased by Patton, to his ven-dee and retained no lien for the purchase money, and on the same day he received the purchase money from Parish, he also conveyed to him the part so purchased from Downs, and, of course, retained no lien for purchase money, as the same was then paid. A decree by default had also been rendered against him in the case of Tetrick, Hess and Nay, requiring him to convey to them the part so purchased by Sharp from Downs, which deed he subsequently, and before the final decree in the case, made to Tetrick, Hess and Nay, without retaining a lien for purchase money.

The appellant having thus conveyed the part sold to Parish and Patton, and being bound by the decree to convey the residue to Tetrick, Hess and Nay, and having also received the residue of Ms purchase money, which he was not bound to refund, the question of the vendor’s lien was no longer open. And the appellee, Parish, having by the payment of the money due to Sturm, and receiving his deed, taken upon himself the adjustment of the equities and priorities of liens between the parties, independently of the court, whose aid and direction he had already invoked for the purpose, the whole controversy would have been thus at an end if the case had stopped here. But on the 7th day of August, 1855, some sis months after the payment by Parish to Sturm, the latter signed the paper “N” filed as an exhibit with the last amended bill. This paper in itself is scarcely intelligible, but taken in connection with other facts in the cause, I think it amounts to a promise on the part of Sturm to refund to Parish the amount he paid Sturm, in the event it should thereafter turn out that the parts sold to Patton and Sharp should he liable for the same.

The appellee, Parish, having by his own act thus practically reduced the controversy to a contest between himself and the appellant, subsequently filed another amended bill, charging that the sales to Patton and Sharp were after the sale to him, and consequently would have been first liáble for the unpaid purchase money to Sturm; and also alleging the signing of the paper “N” by Sturm, and claiming a right to recover against Sturm by virtue of the promise contained therein, and asking a decree against him accordingly.

Sturm, in his answer to the amended bill, admits that he signed the paper at the instance of Parish, but insists that the sales to Patton and Sharp were before the sale to Parish, and therefore first liable to his purchase money, and this was the understanding he had when he received his purchase money and made the deed to Parish.

The cause being again referred to the master to ascertain thgse facts, he reported that the first sale was made to Parish, and that the sales to Patton and Sharp were subsequent to sale to Parish, and both made about the same time.

The appellant excepted to this report, which exceptions were overruled.

Tbe counsel for the appellant insisted here that the exceptions to the report should have been sustained, and that the conclusions of the commissioner were not justified by the evidence. I think, however, that the weight of the testimony sustains the report, and that the exceptions were, therefore, properly overruled.

It was further argued by the counsel for the appellant, that the paper “N” showed a parol contract or promise without consideration, and therefore null and void, and as the case must hinge on this fact, it becomes an important question.

That a parol contract or promise without consideration is void, is too well established to require any comment. A valuable consideration consists, ordinarily, in money or its equivalent, or marriage; but it is likewise held sufficient, to support such a contract or promise, if by making the promise the promisor is to receive some advantage or benefit, or the promisee may sustain some injury or damage. 1 Parsons on Contracts, 353 to 360.

Applying these principles and tests to the present case, it is clear, I think, that there was no consideration whatever, moving from the promisee to the promisor; for it is not pretended there was any pecuniary consideration; while the promisor Sturm, instead of being benefitted by the promise, (if bound by it,) would have been injured; and the promisee Parish, instead of being injured, would have been directly benefitted.

I think, therefore, that the decree, in so far as it requires the appellant to refund, &c., is erroneous, and for this cause and to this extent only, should be reversed. But as Parish in fact, paid the money for Downs, he should stand in the shoes of Sturm and have a decree over against Downs for the amount thereof.

Decree Reversed.