| W. Va. | Nov 30, 1878
delivered the opinion of the Court:
It is avcII settled, that “Avhen there has been a part performance of a contract for the sale of land by the
' The plaintiff alleges a parol contract with his father for one hundred and fifty acres of land, known as the “ Maud Hollow Place,” for which he agreed to pay for his father $100.00 on a certain note, which James M. JByrnside held against his father, and that he did pay the $100.00 to said JByrnside pursuant to said contract; and he files the note with his bill. He alleges further, that his father went with him upon the land, and marked out the boundaries thereof, and put him in possession thereof, and that he has continued in possession thereof continuously ever since, and has placed thereon valuable permanent improvements, which have enhanced the value thereof to the extent of three or four hundred per cent on its original value. With the exception of the Shumates, the bill is taken for confessed by the adult defendants ; and as to the infants it is answered by their guardian ad litem.
The Shumates, who set up claim to the land as purchasers under the deed of trust, deny, that plaintiff over made such a contract with his father, or that he ever paid one cent of money under such a contract either to Byrn-side or any other person. Does the proof sustain the plaintiff's allegations as to the contract ?
Thomas B. Crawford in a rigid examination testified, that he knew the “Maud Hollow” tract of land; that he had heard Edward H. Tracy say he had sold his son, the plaintiff, the land; that his understanding was that plaintiff was to pay $100.00 to Byrnside; that it had been twenty years since plaintiff contracted for the land (his deposition was taken May .24, 1871); that plaintiff
Elizabeth Crawford states, that the contract was made “in the year 1850, in the corn field.” She says, “Mr. Edward Tracy came to us in the field. He says: ‘Roland, if you want this piece of land you can take it, and pay Mr. Byrnside $100.00, and you can have the land.’ Roland> replied back: ‘I don’t think I can pay for it.’ The old man replied back: he‘reckoned Byrnside would not push on him; he could have his own time for it.’ Roland replied to him, ‘he was willing for Reuben Granston and N. B. French to value the land.’ Mr. E. H. Tracy replied : ‘Roland, the land is worth §100.00.’ R. J. Tracy said he would take the land and pay Byrnside $100.00.” After that conversation in the field, she says : “Mr. Edward H. Tracy came to my house, and put an ax over the yard fence, and said : ‘Me and Roland has been marking out some land up here.’ ” She corroborates her husband’s statements, as to the time plaintiff has held the land, and the improvements made by him.
Thomas Little knew the land ; it has been in plaintiff’s possession for about twenty years, and there arc improvements made on it; thinks it is worth $6.00 to $8.00 per acre. He wrote the will of Edward H. Tracy, by which
Calvin Fletcher corroborates the other witnesses as to the time plaintiff has held the land, and the improvements made thereon.
Herman White testified: that he heard a conversation between plaintiff and his father at French’s mill, about the commencement of the war, or before. “R. J. Tracy said to his father, he wanted him to make a deed to that land, as there were two acting justices present that day. His father said to R. J. Tracy, he could not do it that day, for “Rhoda is sick and I have come for medicine for her. I will make it some other time. It ought to have been done long ago.”
L. M. Stinson, estimates the improvements at about $900.00.
Elijah Bailey was sheriff in 1857 or 1858, and held an execution in favor of Byrnside against E. H. Tracy et al., and received an order from Byrnside requesting him to enter a credit on the execution, his.recollection is that Edward H. Tracy told him that Roland Tracy should have paid something upon that debt, and some time after that, and while the execution was still in .his hands, Roland Tracy furnished him the order referred to. (The order was filed with the papers of the cause, but has been mislaid and is not now in the record.)
John C. Corner saw plaintiff pay Byrnside $40.00 for the benefit of plaintiff’s father, paid in Peterstown about nineteen years ago.
On behalf of the defendants, Rhoda Tracy, widow of Edward, testified, that she often heard her husband say he owed Byrnside a debt.
James S. Archer testified, that Edward H. Tracy said, he owed Byrnside a debt, “and my understanding .was that R. J. Tracy was to pay it, but he failed to do it, and
On the part of the plaintiff James M. Byrnside testified, that Edward H. Tracy owed him a debt a good many years ago, nearly twenty. It is his impression he heard him say, that he had sold that land to the plaintiff, but is not positive, that he heard him say so. He, witness, saw by an endorsement on the bond exhibited, that plaintiff paid to him $40.00, the other credit of $30.00 was endorsed in the hand writing of his father-in-law the late Capt. Peters, with whom he left the note for collection. He has no idea of the number of payments plaintiff made to him in witness’s business transactions, “could not even guess at it.”
Such is the character of the testimony, and I am impressed with its weight towards establishing the contract as alleged. The circuit judge must have given great weight to it, because ho not only allows the plaintiff a credit for the $100.00, but states in the decree specifically, that the plaintiff paid it for Edward-H. Tracy; and in the very sums as alleged in the bill. Yet, notwithstanding the court was thus satisfied that the plaintiff did make those payments for his father, and as the testimony showed, that the contract was as alleged in the bill, and that the plaintiff had performed his part thereof, it nevertheless declared by its decree, that the contract was not fully established, and actually undertook to make a contract for the plaintiff, not set up by the pleadings, and not justified by the proof, as a contract between the parties, by decreeing that the plaintiff is entitled to the said tract of land upon the payment of the sum of $500.00,
The decree in that respect is erroneous, and should bo reversed; and, as the appellant’s counsel has well said, the contract should be enforced. The vendee had been in possession for twenty years, when the bill was filed, twenty-three years at the time of the hearing; had taken the land when in a state of nature; improved it by clearing seventy or eighty acres, fencing and improving generally; the vendor put the vendee in possession under the contract; the lasting and permanent improvements were made by the vendee under the eye of the vendor and with his consent; the price agreed on was paid by the vendee as required by the vendor. Certainly it is as strong and clear a case as Hedrick v. Hern et al., 4 W. Va. 626, and the contract should be enforced.
As to the pretensions made by the Shumates, although the bill prays that they be enjoined from prosecuting their action of ejectment against the plaintiff, then pending in the same court, the record docs not show, that the court ever took any notice of the plaintiff’s error in that respect, as no order of ejectment appears to have issued. But the court does not by its decree declare its opinion, that said Shumates “have no title or color of title to the said ‘Maud Hollow’ tract of land, the same not being embraced in the trust deed, under which they purchased.” The court being, I think rightly of that opinion, should have decreed costs in this suit against said defendants, Shumates. [Ross v. Gordon, 2 Munf. 239.]
And as the motes and bounds of the said “Maud Hollow” tract have not been fully established, I am further of opinion, that said tract .of land should bo surveyed,
Decree Reversed, Cause Remanded.