24 W. Va. 214 | W. Va. | 1884
The questions involved in this cause can be much better disposed of after we have taken a general view of the law with reference to the jurisdiction of a court of equity to enjoin or stay the collection of the purchase-money of a tract of land by the vendor, when there are covenants of warranty, of good right to convey, against incumbrances, and other usual covenants, where the vendor has no title to the land or a part thereof, or when the land is encumbered by judgment or other liens. If we were not bound by precedents we should consider, that the correct principles were laid down in the following language taken from Judge Tucker’s opinion in Beale v. Seiveley et al., 8 Leigh 673:
“It may happen however that the vendee will not take the • hazard of the title. The vendor on his part may be willing to assure it to a certain extent but no further. He may be very willing to encounter the hazard of eviction taki ng the chances of his title being strengthened in its weak points by lapse of time, before a superior title is enforced. He may therefore be willing to give a general warranty, which cannot be enforced until eviction, but not a covenant for good' title which he may not have, and which covenant would of course be broken the instant it is entered into, if his title be defective. * * * * When he enters into a general warranty without other covenants, he makes himself only responsible for*221 eviction, and secures to himself the advantage of every doubt which hung over his title being removed by lapse of time. In these cases therefore the vendee is confined to the covenant of general warrant}’. He has chosen, or at least has agreed upon, his remedy, and to that remedy he must be tied down. However bad his title, ho cannot sue upon his warranty unless he be evicted; and if ho can not do so at law, upon what principle can equity make the vendor liable beyond the terms of his contract? A contract without other covenants than a warranty, is in eficct an agreement between vendor and vendee; that the vendor is never to be responsible nutil the vendee is turned out by superior title. How can equity make him responsible further ? ‘It can not mend men’s bargains, though it sometimes mends their assurances.’ Per Lord Nottingham in Maynard v. Mosely, 3 Swanst. 651. It can not do so without making a new contract for the parties or interpolating a new and substantive principle into that already made. Accordingly it is the established principle in courts of equity in England, that if the conveyance has been actually executed, the purchaser can obtain no relief against the payment of the purchase-money. He must look to his covenants; he has contracted for his remedy, and to that remedy he must resort. lie has no right, I take it, after such a purchase with warranty, to call for the title of his vendor, to sift it to the very bran, and enjoin or -recover back the purchase-money upon its supposed defects. See Urmiston v. Pate, 4 Cruise’s Dig. Tit. 32, ch. 25, § 90, p. 420; Sugden on Vendors, 558. So far from it that if he knew of the defects and did not provide against them he is without remedy. Co. Lift. 384, Butler’s note. For if there be no covenants for good title, it is, as I have said, equivalent to the deduction that the vendor is not to be responsible for the defect of title but only for eviction. Were it otherwise an inducement would be held out to the vendee to hunt up defects and expose flaws in a title, which but for his intermeddling, might in a few years have been removed and repaired by time; and thus he would be converted from an ally into an enemy and a spy, engaged industriously in sapping the foundations of his vendor’s title, instead of supporting and strengthening it, as he is bound to do upon every principle*222 oí equity and good faith. Possessed of the title papers and (if the vendor has acted fairly) possessed also of all his secrets; fully informed of all the weak points of the title, he makes the confidence reposed in him the means of betrayal, and seeks to get rid of a disadvantageous bargain by treachery towards one whom the law considers as conjunct in interest with himself, and from whom it rigorously enforces a disclosure of all the facts in relation to the subject of the contract.”
Such, I take it are the considerations in part, which sustain the rule of the courts of England. To that rule there has recently been admitted an exception. Where the seller is aware of a fact from which a defect of title arises and lohich the vendee had no means of knowing, the purchaser may either maintain an action at law for the deceit, or have a rescission of the contract itself by an appeal to a court of equity. Such is the principle laid down in Edwards v. McLeay; Cooper’s Chancery Cas. 308 as modified by Lord Eldon on an appeal in same case; 2 Swanst. 287; see also Sugden on Vendors 565; Co. Litt 384; A. Butler’s notes, ad finem. The same principle has been followed in the courts of New York. Abbott v. Allen, 2 Johns. Chy. 519.
These principles thus stated by Judge Tucker I would be disposed to adopt, if I did not feel constrained to depart from them by the decisions in Virginia both prior and subsequent to the rendition of this opinion, and also by the decisions in West Virginia. Judge Tucker admits, that these principles have been departed from in Virginia. He says on this subject, p. 675: “ With us it cannot be denied that the practice has been more lax. But even with us relief is only given to a purchaser who has obtained his deed, when there has been an actual eviction, or where a suit is depending or threatened, or when the vendee placing himself in the attitude of the superior claimant can show' a clear outstanding title or incumbrance. Ralston v. Miller, 3 Rand. 44; Yancey v. Lewis, 4 H. & M. 390; Grantland v. Wight, 5 Munf. 295; Koger et al v. Kane’s Adm’r, 5 Leigh 606; Richards v. Mercer, 1 Leigh 125. * * * But notwithstanding these relaxations I am aware of no case in which the rights of the party have been extended in equity beyond his covenants.”
In Clarke v. Hardgrove, 7 Gratt. 399, it was held, that as the appellant has clearly shown, that at the institution of his suit the title to a portion of the land conveyed to him was defective, he had a right, notwithstanding a deed with general warranty had been made, to enjoin the collection of
But the decisions in reference to when a court of equity ■will enjoin the payment of purchase-money due the vendor in the different States are very conflicting, and High in his work on Injunctions, sec. 382, says very properly: “It is exceedingly difficult, if not impossible, by any process of generalization to deduce from the decided cases principles of general application which shall serve as rules for the guidance of courts or practitioners.” But enough has been said with reference to the principles on this subject, which prevail in Virginia and West Virginia, to enable us without difficulty to decide this cause.
In the cause before us the bill asking for an injunction to prevent the vendor from collecting a judgment at law for the purchase-money makes no allegation, that the vendor had not a good title to every portion of the land conveyed and had not a good right to convey the same; all that it does allege is, that there were sundry judgments exceeding the value of the land conveyed, which were liens upon this land; but it does not allege, that there were not other lands greatly
The covenants were first a covenant of warranty, then a covenant that the vendor was seized in fee, and had a good title and right to convey the land, neither of which covenants is it pretended were broken, and lastly a covenant “that this land should not be subjected to any liability from in-cumbrances thereon.” This on its face shows, that the vendor knew of these judgments, which were liens on this tract of land, aud •was content as a protection against them, that the vendor should covenant “that this land should not be subjected to any liability because of these judgments.” The bill did not allege, that it had been so subjected or that it was threatened to be so subjected or that there was any probability or even possibility of its being so subjected; nor
The second motion to dissolve this injunction ought clearly to have been sustained by the court. It was made January 11,1882, and when made, the plaintiff had taken no depositions to 'show, that it was possible to amend his bill and make it a good bill entitling him to any relief. The court however instead of dissolving the injunction and dismissing the bill at the plaintiff’s costs improperly referred the cause to a commissioner to ascertain the liens existing and unsatisfied upon this tract of land, the amount and priority of these liens and to whom the same were due. The commissioner made his report, on the face of which it appeared, that it was materially erroneous. It reports in class ífo. 1 a judgment in favor of J. H. Kindig and Peter Wein against Jacob H. Arbogast for sixty-nine dollars and seventy-two cents debt, interest and costs, and in class Eb. 3 another judgment for two thousand two hundred and one dollars and thirty-six cents debt, interest and costs in favor of same parties, allowing no credit on these judgments; yet in a subsequent part of this report he states, that one thousand five hundred dollars had been paid on these judgments, and he refers to the deposition of R. P. Dennis filed in the papers of the cause for other credits and payments on these judgments. On examination of this deposition we find, that as counsel for the plaintiff in these judgments he had received one thousand five hundred dollars in cash upon them, and one
The final decree of September 30, 1882, is right, so far as it dissolves the injunction and dismisses the bill at the cost of the plaintiff, but is in all other respects erroneous. It should not have been heard on the report of the commissioner, as the cause should not have been referred to a commissioner, and therefore his report should not have been confirmed though not excepted to, and because it was grossly erroneous on its face. It attempted to ascertain the amount óf the judgment, interest and damages due from the plaintiff on the judgment in favor of Arbogast for the use of Stalnaker and then rendered a decree against him therefor, but in so doing there were clerical errors made to a considerable extent. The calculation is made in paper X annexed to the decree. This calculation when correctly made is as follows:
“Judgment in favor of Jacob H. Arbogast use of Hamilton Stalnaker rendered may 15, 1880.$1,765.37
Interest at 6 per cent, per annum from date of judgment to date of injunction-bond, October 7, 1880, 4 months and 22 days. 41.78
Add cost of common law suit. 12 05
“$1,819.20
*229 “Damages on §1,819.20 from October 7,1880, date of injunction-bond to the 30th day of September, 1882, date of the decree, at rate ol' 10 per cent, per annum (1 year, 11 months and 24 days).$ 361.47
“§2,180.67”
The interest on this should run from September 30, 1882, so that the decree should have been for two thousand one hundred and eighty dollars and sixty-seven- cents with interest thereon from the 30th day of September, 1882, till paid, but this was a clerical error, and when corrected this part of the decree should be affirmed. But the next and all the other errors in this decree are judicial errors and as to them the decree should be set aside and reversed. The first of these is the statement in this decree of the liens on this tract of land, an error produced by omitting the credit of one thousand five hundred dollars as shown on the face of the commissioners’s report on the two judgments in the first and third class, and in truth there should equitably have been a further credit on these judgments of one thousand three hundred dollars, which amount in good bonds had been long before placed in the hands of the counsel of the plaintiff to be collected, and out of the proceeds these judgments were to have been paid off, and doubtless they wqjuld have thus been entirely paid off and so constituted no lien on this land.
The next error consisted in treating the debt in class Ho. 2 as a lien on this land; for when the plaintiff in this suit paid the judgment, which he had improperly enjoined, this payment at the same time satisfied this judgment in the second class, as the claim against the plaintiff was assigned to Hamilton Stalnaker for the express purpose of satisfying this judgment in favor of Stalnaker named as constituting this second class. There was therefore in fact no real lien on this tract of land. If however there had been, the court would still have erred in adjudging that Jacob S. Wamsley had a right to have his purchase-money applied to extinguish these liens.
The court again erred in directing, that the supposed right of Wamsley should be preserved by directing Hamilton Stalnaker, when he collected his judgment against Wamsley, to apply the same to the payment of these supposed liens.
The next provision, though badly worded, is right and should he affirmed. It in substance dissolves the injunction and dismisses the hill at the plaintiff’s costs.
The last provision of this decree is erroneous and should be reversed. It provides, that if "Wamsle}? did not pay oil the debt, interest and costs decreed against him within ten days after the rising of the court, the clerk should issue a fieri facias for the amount directed to the sheriff of Randolph county endorsed, “no security to be taken.” The law fixes the penalty to be imposed on a party on the dissolution of an injunction staying the collection of a judgment, and it is no part of this penalty that when the injunction is dissolved and a new execution awarded, the defendant shall not, if he chooses, give a forthcoming bond, when his property is levied upon. This direction to the clerk to endorse on this execution l‘no security to be- taken” was not proper; nor was it proper to stay the issuing of this execution for ten days after the rising of the court.
My conclusion therefore is, that this final decree of September 80, 1882, so far as it dissolves the injunction granted and dismisses the bill at plaintiff’s costs, and so far as it decrees the payment of an amount made up of the judgment enjoined including the costs of obtaining said judgment and interest on the same, till the injunction-bond was given at the rate of six per cent, per annum, and the damages on this aggregated sum at the rate of ten per cent, per annum till the date of this decree is correct; hut as a direct error was committed in calculating the amount to be decreed, this error should he corrected, and thus corrected, this portion of said decree should be affirmed. In all other respects this decree should be set aside and annulled; and the appellees should
Aeeirmed in Part and Reversed in Part.