62 W. Va. 231 | W. Va. | 1907
R. G. Trump-and- Margaret, his wife, February 17, 1890, by deed conveyed to C. E. Tolley and Paulina M., his wife, a tract of 460 acres of land in Raleigh county, upon which C. E. Tolley thereafter resided with his wife and children until his death in 1896. While said' deed was joint, the land was paid for by him- individually. By his will, made August 29, 1896, probated November 23, 1896, C. E. Tolley undertook to dispose of this land regardless of the interest of his wife therein. By the second item thereof he devised to his wife all his household and kitchen furniture, farming tools, horses, cattle, hogs, sheep and other stock of which he died possessed, and “also all that portion of me/ farm upon which I now reside, and recently purchased of R. (x. Trump, situated on the north side of Marsh Creek, being that portion of the farm upon which the dwelling house now occupied by myself and family now stands, * * * upon the condition that she remain a widow, and should she marry then the said bequeath
November 26, 1902, Paulina M. Tolley, together with her children and others, joined in an-option contract with the defendants C. T. Jones and G. A. Poteet (a brother of L. E. Poteet), by which they gave the said Jones and Poteet for six months from the date thereof the exclusive right to purchase at $50 per acre the coal in various tracts of land in Raleigh county, upon the terms of one-third of the purchase money cash upon delivery of the deeds and the residue in two equal payments in one and two years from date of deeds with interest payable annually. Included in the contract is tract No. 4 of 226 acres, owned by Virginia. Clark, wife of Luther Clark, Mrs. C. E. Tolley and Eva Tolley, composed of eight parcels, described in the will of C. E. Tolley and deeds from A. P. Farley as special commissioner to Virginia Clark and from Lee Cole and wife and J. J. Tolley and wife to Virginia Clark. Tract No. 4 docs not include the land devised to W. P. Tolley or Josephine Hutchinson.
In explanation as to how, without previous agreement, he inserted this consideration in the deed, L. E. Poteet significantly says: “I learned from Air. Clark it would take $50 per acre to get the 16 acres -which she owned in fee, therefore I knew what to fix it at; secondly, I knew what I was willing to pay for the other, but I paid more than I instructed my brother to pay, but I don't remember whether I put all this in the face of ¡the deed or not.’’ It is important to say that there is no mention in the deed of any other consideration except the $800.
On the same day this deed was made L. E. Poteet, as he claims, accidentally met his brother George at the hotel in* Beckley. Luther Clark, the son-in-law of the plaintiff, by invitation of George, as the latter represents, and without any prearrangement with his brother, was there to assist in “looking up íjnd locating the different tracts of land.” In response to the question, “And agreed to give him $500 did you not?” George answers, “I told him if he came that he would not lose by it.” Notwithstanding L. E. Poteet knew his brother George and Jones liad the option on the lands of Mrs. Tolley and her children, he says: “I placed the deed in the hands of G. A. Poteet, who was accompanied by Mr. Clark. Mr. Clark told me he would do what he could to get the old lady to sign the deed.” He also says in the same connection: “I further told him (George) that I had no money with me, and had none in Raleigh and none in the town of Beckley, and further that I did not know how much money she would want for her interest, and for that reason I told him to pay her the money provided she signed the deed, and would pay him later. I knew he had the money in bank at Beckley, and for that reason asked him to pay her; I told him * * * about the 16 acres which Mr. Clark had told me she owned in fee, and I told him, what interest she had above that I did not know, but I was willing to pay a couple of hundred dollars, because it was uncertain. I did not know whether what she had was worth anything or not. It was a mere gamble, and I did not like at the outset to risk more than $200.” He also says ho had a conversation with Clark at the hotel regarding his mother-in-law’s interest in the tract of land; that he told Clark in the presence of George that he -wanted to buy his mother-in-law's interest in that land; that he showed Clark the deed he had written, and read it to him; that Clark read it and asked him a few questions about it, which he answered, and that
Before we allow G. A. Poteet to proceed on his journey with Clark to get the old woman to execute the deed to his brother L. E. Poteet and thus to deprive himself and his partner Jones of their rights under’the option contract, we should have his explanation. He says in response to a question: “My experience with Mrs, . Tolley, or rather the statements of Mr. Jones to me concerhing how hard she was to deal with, led me to believe that I could purchase the coal from L. E. Poteet, if I wanted .t.o,-as easily as 1 could from
Luther Clark’s version of what took -place at the hotel does not accord with that of the Poteets. He says they claimed Mrs. Tolley had signed an option to make a deed she had no right to make, but that she had a dower right in the land on which she resided, which at her age according to the statute was not worth over' $100, but that he (L. E. Poteet) was willing to paj^ her more than that but did not saj^ what ho would pay her; that G. A. Poteet said the time was up and he was going to have the old lady sign a deed according to option, or know the reason why.
After these preliminaries, George Poteet and one Sum-merfield, a notary employed by him, preceded by Clark, went to the' residence of Mrs. Hutchinson in the country where Mrs. Tolley was visiting, taking with them the deed prepared by his brother, for the purpose of persuading her to sign it. On reaching the place Clark preceded Poteet into the house; Poteet spoke to Mrs. Tolley, called her into an adjoining room, after which he also called Clark in, and said to Mrs. Tolley that he had come down to close up the deed on the option she had given for the coal under the 16 acres, and that he also wanted a deed covering her dower right in the land on the north side of the creek and would give her $250 for it, but that the law would allow her only a little over $100; and he also stated to her that she had signed an option agreeing to make them a deed for something she did not have. Clark sajrs: “After we had explained to her that the deed was for 16 acres of coal and for her dower right on the north side of the creek she signed it;” and Sum-merfield was then called in and took her acknowledgment. Clark says the deed was not read to Mrs. Tolley in his presence.
G. A. Poteet’s statement of these negotiations with Mrs. Tolley is substantially as follows: that he told her he had come to get her to acknowledge a deed of conveyance to his brother L. E. Poteet for her entire interest in a tract of land on Marsh Fork called the Trump tract, and to see if she would make a deed of that kind; that she replied she thought she might as well sell her interest, as she was getting old and it would not do her much good; that he asked her what she was
Mrs. 'Tolley, whose memory is evidently poor, when examined as a witness did not recollect of the deed having been read to her before signing and acknowledging it, nor of Po-teet telling her what the deed was for. She says it was the coal she was selling; that she sold the coal under one piece; that she did not want to sell it, but did so because Poteet was so bothersome and annoying; that when she signed the deed she did not know anything about having any other interest in the land; that she thought the deed was for the coal under the 16 acres. Summerfield, the notary, who was not in the house at the time, says the window was open and he thought he heard Poteet reading the deed; that when called in he asked Mrs. Tolley if she understood the contents of the deed, or if she wanted him to read it to her; that she replied she had heard the deed read and understood its contents, and that it was not necessary to read it to her again.
In explanation why, if his business was separate and distinct from that of Jones and his brother George, he did not himself go- and get the deed" from Mrs. Tolley, L. E. Poteet answered that from what he had -heard from Mrs. Tolley he felt like he would rather send some one else; that he sent his brother George because it suited him to send him.
May 29, 1903, six days after the Poteets had with’the aid of Clark procured the deed of May 23rd, which they formerly asserted was understood by and explained to not only Mrs. Tolley but also to Clark, who were satisfied therewith, and which was intended by L. E. Poteet, as ho claims to have explained it to George and Clark beforehand, to cover all the interests of Mrs. Tolley in the entire tract of 460 acres, they suddenly concluded the deed covered too much; that by it, if valid, Mrs. Tolley had actually sold the very roof over her head and her life-estate in the part of the land devised to her for life. This situation was not likely to comport well with their alleged explanation, or the understanding either of Mrs. Tolley or Clark, as to the effect or purpose of the deed. This was the infernal machine which had to be gotten rid of, if the fruits of their scheme were to be preserved. At pnce L. E. Poteet prepared another deed and sent George A., his brother, and
While L. E. Poteet says he did not know what interest Mrs. Tolley had in the land, yet his purpose, plainly concealed, as he practically admits, was to acquire from Mrs. 'Tolley the entire half interest which he thought, after discovery of the deed from Trump and wife, was still invested in her, and which in his opinion her husband could not have disposed of by his will. ’
At the time G-. A. Poteet and Jones secured the option contract from Mrs. Tolley and her children and others, they were promoting the formation of the Marsh Fork Coal and Land Company, and were securing these options for the purpose of turning them over to that company, and, as stated by himself, G. A. Poteet was willing to become the agent of his brother in securing the deed from Mrs. Tolley because bo thought he could get the land from him if he wanted it. L. E. Poteet says he has no pecuniary interest in that company, his only interest being that of his friends who are stockholders. He was along with Jones and the notary and sat outside about May 18th, a few days before he got the deed from her, when they tried to get Mrs. Tolley and her daughter Eva to renew the option contract. Notwithstanding all this, he says he claims to have acquired by the deed from Mrs. Tolley one-half undivided interest in the 460 acres, and that he intends to hold whatever he got by that deed, not only against his brother and Jones and their Marsh Fork Coal and Land but against everybody else.
In the face of all these facts, G.. A. Poteet and Jones proceeded to procure deeds from the children of Mrs. Tolley covering the same lands, and to execute their notes therefor, knowing of the claims of L. E. Poteet under the deed procured for him from Mrs. Tolley; and afterwards, when these notes became due, they brought suit against some, if not all,
The facts recited constitute tlie basis of the present suit. They develop the well-planned conspiracy of shrewd traders, combined with a lawyer’s knowledge of legal rules and precedents, to cheat and defraud an old and infirm woman and her confiding children out of half or more of their lands. That they may not have succeeded doe's not detract one whit from their plans and purposes, which they practically admit, and which a bare recital of the facts is all that is necessary to make plain.
Suit was begun against L. E. Poteet alone, October 24, 1903. In March following, process to answer an amended bill was sued out against L. E. Poteet,. Gr. A. Poteet and G. T. Jones. In both the original apd amended bills the plaintiff sets up the facts substantially as. herein detailed. She charges that she is old and feeble and was not at the time able mentally to transact business at all; that by means of the option contract and by the conspiracy, falsehoods, conceal-ments and deceptions practiced on her. she was induced to sign the deeds of May 23 and 29, 1903, in ignorance of the fact, discovered by L. E. Poteet and concealed from her, that the deed from Trump and wife conveyed the land to her and her husband jointly; that she supposed the effect of these deeds was, as represented to her, to convey the coal under the 16 acres and her dower interest in the coal under the land devised to her for life; that-she did not learn the facts until months afterwards. She alleges that at the time her husband purchased the land from Trump he took possession of the same and held it exclusively until his death as his own; that in his lifetime he, with her- knowledge, placed some of his children in possession, of parts of it, who had made valuable improvements thereon, she not knowing that the deed invested in her any interest therein; that on the death of her husband she accepted the provisions of his will and claimed under it; that on the death of her son R. L. Tol-ley his portion was partitioned among her and his other heirs, one lot of 16 acres falling to her; that all the devisees took actual, open, exclusive possession of all the lands devised to them, she with her daughters the home place north
The answers of the defendants L, E. and G. A. Poteet are general denials of fraud, conspiracy and deceit; they charge that the deeds were fully explained to and understood by the plaintiff, and that they were intended to convey her whole interest in the land. The answer of Jones denies any knowledge regarding the purchase of the interest of Mrs. Tolley in the tract of land as charged in the bill, and neither admits nor denies its allegations relating thereto, except that he admits the use of the money of himself and G. A. Poteet to pay Mrs. Tolley.
The plaintiff and the defendant each proceeded in the court below, and in this Court up to the time of the argument here, upon the theory that the two deeds of the plaintiff in fact operated to invest in L. E. Poteet a one-half undivided interest in the 460 acres, regardless of the will of C. E. Tollesp her acceptance of the provisions thereof and the suit partitioning the land of R. L. Tolley among his heirs. If such was the effect of those deeds, the pleadings and proofs would undoubtedly entitle the plaintiff to a cancellation or reformation thereof, and a restoration of the status quo. In their brief filed in this Court, counsel for defendants- in an addendum say: “After the brief had been printed, counsel became impressed with the view that the plaintiff, having-elected to take the benefits bestowed upon her under the will, is estopped from asserting title to a one-half undivided
The cases referred to by counsel fully sustain the propositions for which they are cited. As a corollary of these propositions, however, it is equally true that where one is required to make an election lie is entitled to know all the facts affecting his choice and to inquire into and ascertain all the circumstances; and, where the election has been made in ignorance or under a mistake as to the real nature of the properties, or as to the nature of his own rights, such a mistake is regarded as one of fact rather than of law, and the election is not binding and a court of equity will permit it to be revoked, unless the rights of third persons have intervened which would be interfered with by the revocation. 1 Pom. Eq. Jur., § 512, and cases cited; Tooke v. Hardeman, 7 Ga. 20; Wilbanks v. Wilbanks, 18 Ill. 17; Linton v. Crosby, 61 Ia. 401; Adsit v. Adsit, 2 Johns. Ch. 448, 7 Am. Dec. 589; Hindley v. Hindley, 29 Hun 318; Huston v. Cone, 24 Ohio St. 11; Millikin v. Williver, 37 Ohio St. 460; Andersons Appeal, 36 Pa. 476; Bradford v. Kent, 43 Pa. 474; Elbert v. O'Neil, 102 Pa. 302; In re Woolburn’s Est., 138 Pa. 606; U. S. v. Duncan, Fed. Cas. No. 15002; 4 McLean 99.
As the bill does not allege that the plaintiff accepted under the will, and she has not since her discovery in regard to the deed from Trump and wife chosen to revoke it; even if she could yet do so under our statute limiting the time for revocation to one year from the date of the probate of the will, we think she is by her acts and conduct concluded from now making an election contrary to the terms of the will. She participated ¡in the partition proceeding, and accepted under a final decree of the court a deed for the 16 acres partitioned to her. By that decree she is forever concluded and estopped from asserting any claim as against the parties to that suit, and any attempt to make an election not to accept under the will would disturb her co-partitioners and involve injuriously the rights of third parties, particularly the purchasers under
This leads us to inquire what was the real contract if any between the plaintiff and defendant L..-E. Poteet, what was the real subject matter thereof, and whether the minds of the parties ever concurred on the subject matter of the contract so that the same became binding alid conclusive; and if not, has a court of equity power and authority to correct any error therein? The bill charges actual fraud, conspiracy, deceit and concealment of facts. If these charges are sustained, although the plaintiff may not be. entitled to relief in all respects as prayed for, yet under the- prayer for general relief the court can’and ought to administer that measure of relief to which she is justly entitled.'
We have passed by the question of competency of the plaintiff to transact business. We conclude from the evidence that, although she was old and infirm in mind. and body, she had that degree of mental capacity which this Court has recog
Let us recapitulate the operations of the scheme, all based upon the option contract with G, A. Poteet and Jones for the coal: first, the unsuccessful attempt to obtain an extension of the contract from the plaintiff and her daughter Eva, in which L. E. Poteet participated; then the discovery by L. E. Poteet that the Trump deed invested the title to the 460 acres in C. E. Tolley and wife; the sending for Clark by G. A. Poteet, on the pretense that he desired him to assist in looking up the lands in that vicinity, and upon this pretense enticing him to town, where he at once met L. E. Poteet; the employment of him for á different purpose — to go with G. A. Poteet to induce the old woman to sign a deed already prepared; the recital in that deed of the actual consideration stipulated in the option for the coal only in the 16 acres; the omission in the description of land of the number of acres; the claim of the defendants that they explained to Clark and the old woman the nature of the deed, that Clark and she fully understood the nature of the deed, and that it was intended by her to convey all her interest in the entire tract, they themselves now admitting that L. E. Poteet did not intend to take away from the old woman her home, he six days af-terwards reconveying a life interest. This deed, if it had accomplished the purpose of L. E. Poteet, would not only have deprived the old woman of her home, but also her children of interests in the land devised and partitioned to them, and would injuriously affect them in their contract with G. A. Poteet and Jones for the sale of the coal in these lands. Almost immediately afterwards G. A. Poteet and his partner
If the deeds of May 23 and 29, 1903, .are to stand, L. E. Poteet will have acquired the entire estate in fee in the 16 acres and the entire life estate in the coal, timber and all other minerals in the tract devised to the plaintiff; whereas
Fraud in the procurement of a contract avoids it; and where a party intentionally or by design misrepresents a material fact or produces a false impression, in order to mislead another or to entrap or cheat him, or to’ obtain an undue advantage of him; in every such case there is positive fraud in the truest sense of the term; there is an evil act with an evil intent; dolum makm ad circumveniendum. And the misrepresentation may be as well by deeds or acts, as by words; by artifices to mislead, as well as by positive assertions. Dickinson v. Railroad Co., 7 W. Va. 390; 1 Story Eq., § 192.
It is said by the defendant L. E. Poteet that he represented to Clark and his brother George, whom he constituted his agents to secure the plaintiff the deed in question, that he did not know what interest the plaintiff had in the land. He admits he had seen the deed from Trump and wife and the will of C. E. Tolley; that he knew the devisees and partitioned had been and were in possession of their lands; that Mrs. Tolley had elected to take under the will, as evidenced by the option contract and by the partition proceedings; and, as a lawyer, he should have concluded, as his counsel have on due consideration concluded, what actual interest the plaintiff had in the land. If a statement of fact, actually untrue, is made by a person who honestly believes it to be true, but under such circumstances that the duty of knowing the truth rests upon him, which, if fulfilled, would have prevented him from making the statement, such misrepresentations maybe fraudulent in'equity. 2 Pom. Eq. Jur., § 888. A false representation may be made by presenting that which is true, so as to create an impression which is false, and then profiting by the false impression thus created. Lumberman v. Johnson, (N. J. Eq.), 24 Am. St. Rep. 410. Mr. Pomeroy
It is claimed by the defendants that the means of information regarding the title were open to botli parties, But it is equally true that when from the circumstances one is induced to rely upon the other party’s representation the contract may be rescinded for the fraudulent misrepresentation. False representation or fraudulent concealment in respect to the subject matter of a contract will entitle the' injured party to a rescission thereof. Engeman v. Taylor, 46 W. Va. 669. In Goshorn v. Snodgrass, 17 W. Va. 717, it is said that a deduction of fraud may be made not only from deceptive assertions and false representations, but from facts, incidents
In this case the deeds were obtained by the shrewd artifices of the trader, accompanied by the knowledge of forms and precedents of the lawyer guiding the hand of the scrivener in the preparation thereof. The plaintiff was evidently ignorant not only of the facts, but also of the law relating to the subject matter of her contract. The defendant who obtained the deeds was mistaken as to neither, as he falsely represented. She had confidencé in him and his agent. She was not on equal terms with them. While mistake of law .alone will not, as a general rule, relieve one of the effect of his contract, yet such mistake occasioned by the fraudulent representation or culpable negligence of the other will warrant a court in granting the necessary relief. Crislip v. Cain, 19 W. Va. 438, 469, 470; Schuttler v. Brandfass, 41 W. Va. 201, 207; Bruner & McCoach v. Miller, 59 W. Va. 36, 40; Newberger v. Wells, 51 W. Va. 624, 631. In 2 Pom. Eq. Jur., § 842, it is said: “If the mistake of law is not pure and simple, but is induced or accompanied by other special facts giving rise to an independent equity on behalf of the mistaken person, such as inequitable conduct of the other party, there can be no doubt that a court of equity will interpose its aid.”
The prayer of the bill is for rescission, and the question is: •Can the Court, under the prayer for general relief, do more than set aside the deeds ? As in our opinion the minds of the parties never met on the subject matter and terms of the contract, and the deeds of May 23 and 29, 1903, should be set aside for the reasons assigned, yet inasmuch as the plaintiff has evinced a willingness that the defendant L. E. Poteet should take and hold such interest in the land as she agreed to convey under the option and at the time the deeds were made and 'as the parties to the controversy may be willing that the matters in difference between them may be settled upon this basis, we are of opinion to reverse the decree of the circuit co'urt and to remand the cause with directions that, if the defendant L. E. Poteet shall execute and deliver to the plaintiff a deed of quit claim reconveying to her all her right and interest in and to the said 16 acres and the land devised to her — except only the coal under the 16 acres with
Reversed. Remanded.