20 W. Va. 272 | W. Va. | 1882
announced the opinion of the Court:
The material facts contained in the record, gathered from the bill answers, exhibits and depositions, as I understand them, are as follows:
On the 17th day of March, 1874, the plaintiff purchased from the defendant, Core, a tract of one hundred and ninety-three acres of land, lying on French creek in Pleasants county, at the price of one thousand six hundred dollars, to he paid as follows: April 1, 1874, four hundred dollars; April 1, 1875, three hundred dollars; April 1, 1876, three hundred dollars; April 1, 1877, two hundred dollars; April 1, 1878, two hundred dollars, and April 1, 1879, two hundred dollars, and by deed of same date, the said Core and wife conveyed said land by metes and hounds to the plaintiff, with covenants of general warranty, retaining therein a vendor’s lien, to secure the payment of the several notes given for said purchase-money. At the time of said sale there was a controversy about the title to a portion of said land and an agreement, in writing, was, on the same day, entered into between said White and Core by which the said Core agreed and hound himself to pay White nine dollars peí acre for such portion of said land as he might lose by action at law or chancery and indemnify him against all costs that may arise in any suit in consequence of said controversy as soon as the controversy or suits may he decided and Hie land or any part of it lost. White paid the first payment and took possession of the land, and at the instance of said Core brought an action of ejectment in the circuit court of Pleasants county against one John Marple to recover a part of the said one hundred and ninety-three acres of land and, also, obtained an injunction from the judge of said court, on June 13, 1874, to prevent said Marple from cutting timber and committing waste
“Received of William White for Samuel White, one hundred dollars, on land purchased of Core; and said Core agrees to divide the said land, and let the said Samuel White have the lower half of said land for nine hundred dollars, this June 13, 1876.
“W. G. II. Coke.”
The said Samuel White purchased but one tract ofland irom said Core, and that was the one hundred and ninety-three acres described in the deed aforesaid from Core to White. After the said agreement White continued to reside on Core’s half of the land as the tenant of said Core and paid rent therefor. Sometime in the year, 1878, Core instituted a suit in the circuit court oi Pleasants county against the plaintiff, White, to enforce the vendor’s lien retained in the aforesaid deed of March 17, 1874, for the balance of the purchase-money with the interest thereon then amounting to about one thousand two hundred dollars. When the summons was served on said White he immediately went to Core and enquired of him, what the
“On consideration the court is of the opinion that the defendant, W. G. II. Core, should convey with’ covenants of general warranty to the plaintiff, Samuel White, the lower half of said 193 acres of land, upon the payment of the nine hundred dollars to said Core, as set forth in the receipt marked “E,” and that before a decree can be made in this cause the lower half of said land should be distinctly ascertained by a survey; it is, therefore, adjudged, ordered and decreed that the surveyor of this county do go upon said land and divide the same in two equal parts and return a plat and report to this court; that said White pay the balance of the said nine hundred dollars, to-wit: The sum of two hundred dollars with interest from June 13th, 1876, till paid, together with the value of the mare given by defendant, Core, to plaintiff’s wife, the money due said Core upon store account if any, and any other amount due the said Core by note or otherwise, not including the land notes executed to said Core over and above said nine hundred dollars that were agreed to be cancelled; and that defendant, Core, shall pay all costs that have accrued in the various suits both at law and equity between plaintiff, White, and John Marple touching the said land sold by Core to White; and that before a proper decree can be entered in this cause it should be referred to a commissioner of this court to ascertain the state of*277 accounts -between the parties.” Tlie decree then refera the cause to a commissioner to take an account between the parties of the matters therein recited and determined. From this decree an appeal with supersedeas was allowed by this court on the petition of the defendant, Gore.
The appellant in his petition has assigned four errors. The first is that, “the court erred in enforcing the specific execution of the pretended contract set out in the receipt to Wm. White from petitioner, marked “E,” and filed with complainant’s bill, as the defendant, Gore, denied the making thereof in his answer, and said receipt is not produced nor its absence accounted for.”
This is the only assignment of error argued in this Court for the appellant; and the sole question discussed is, that said receipt “E,” being a copy, is not evidence of any agreement in the absence of the original without any excuse for such absence or evidence of the loss of the original. The facts shown by the record in relation to this receipt or agreement are as follows : The plaintiff in his bill avers, that he made an arrangement with his father, William White, to make a payment on said land to the defendant, Core, and that said William White paid to the said Gore one hundred dollars in pursuance of said arrangement on the lower half of said land, and required the said Core to set out the said agreement in a receipt taken at the time for the said one hundred dollars paid as aforesaid. A certified copy of said receipt is herewith filed as Exhibit “E.” Then follows a copy of the receipt as hereinbefore given, certified by J. L. Richardson, the counsel who filed the hill. The only reference made by Gore to this paper in his answer to the bill is this: “Your respondent denies making the paper filed with the complainant’s bill and marked ‘Exhibit E,’ and that Core & Son never, sold complainant any laud.” Both the bill and answer are sworn to. To this answer there was a general and a special replication, also sworn to by the plaintiff. The plaintiff in his deposition says, that his father told Mm that he had paid Core one hundred dollars, and “my father, also, showed me a receipt signed by W. Q-. II. Core showing that he had paid one hundred dollars for me on said land. The receipt also said I was to have the lower part of said
It will be observed, that the defendant does not deny the making of a receipt of which Exhibit “E” is a copy, but he contents himself with denying the “making of the paper filed with the complainant’s bill marked Exhibit ‘E,’ and that Core & Son never sold complainant any land.” There is no allegation in the bill that Core & Son sold the land, or that defendant signed the paper Exhibit “E.” The averment is that he signed a paper of which Exhibit “E” is a copy. This equivocation may be an inadvertence or it may have been intentional, but whether the one or the other the answer is certainly not a direct denial of the execution of said receipt “E.” But conceding that the answer contains such a denial as, under section 40 of chapter 125 of the Code, would put the plaintiff upon proof of the execution of said paper “E,” I am clearly of opinion that its execution is sufficiently proved. But it is insisted that said copy is not evidence in the absence of the original or a sufficient excuse for its non-production. There was no exception or objection to the reading of said copy in the court below, nor was there any exception to the depositions taken to prove that such a paper had been executed by the defendant. Where a fact is proved by secondary evidence without exception or objection in the court below, the Appellate Court will presume that all objection to such evidence was waived, and objection can not be taken for the first time in the Appellate Court on the ground that the fact was not proved by the best evidence. It is unquestionably true that a fact in issue must be proved by the best evidence and that a matter which the law requires
In the case at bar exhibit “E,” doubtless, was accessible and this fact known to the appellant, and for that reason no objection was made to the copy. The appellant did not testify that he did not execute such a paper, or in any manner contradict or question by proof or otherwise, except by the evasive language used in his answer, that he made fhe said agreement and that the paper produced was a true copy. To permit him, therefore, to surprise the plaintiff by an objection made for the first time in this Court, and that'too by a matter which it was competent for him to have waived in the trial court, would operate not as a furtherance of justice but as a reward for negligence or, perhaps, a premium for sharp practice and bad faith. The law does not require the courts to sanction such a course or proceeding.
Our next enquiry is, did said paper exhibit “E” constitute such an agreement in writing for the sale of lands as satisfies the statute of frauds? It is signed by the party to be charged; it is based upon a valuable consideration and it is mutual. 'The only other requisite is. certainty. Does it describe the land with that certainty required by the law in such cases? The price fixed is nine hundred dollars, and the property as the lower half of the land purchased by Samuel "White from the defendant, Core. It is proved that said White purchased of said Core one hundred and ninety-three acres of land on Erench creek in Pleasants county, the same conveyed by a deed exhibited with plaintiff’s bill. By reference to this deed the laud is fully identified and described, and it is proved that this was the only land ever purchased by White from Core. This is sufficiently certain to describe and identify the land provided the parol testimony, which connects the land mentioned in the agreement with the land
The agreement or receipt “E” refers to the land as the same that was purchased by White of Gore, and the proof is that the only land purchased by White of Core is the one hundred and ninety-three acres in the deed from Gore to White described and mentioned. This, we think, folly identifies the subject matter of the sale and is a sufficient compliance with the statute of frauds. Having thus shown that the contract is in its nature and circumstances unobjectionable, it is as much a matter of course for a court of equity to decree a specific performance of it as it is for a court of law to give damages for a breach of it. Abbott v. L’ Hommedieu, 10 W. Va. 677. The court, therefore, did not err in declaring that said agreement “E” should be specifically executed.
The second error assigned in the petition of appellant is, “that the court improperly decreed that petitioner should pay all the costs that have accrued in the various suits at law and in equity between the plaintiff and John Marple touching the land sold by Core to White, because the writteu agreement between the parties provides that said Core was to pajr the costs only in case the land or some part was lost, and there is no proof that any land has been lost.”
This assignment has no foundation in fact, because the facts in this cause do show that the injunction obtained by White against Marple was dissolved at the costs of the plaintiff, White, and a non-suit was entered in the ejectment suit by consent of appellant, Gore. So far, at least, as these suits show anything they show the loss of the land for which they were brought to recover, both having been determined adversely to the claim of the qfiaintiff, White. The appellant, was, therefore, by the terms of his contract with White, bound to pay all costs incurred in said suits.
The fourth and last assignment is, that “the court erred in not allowing said Core the interest which had accrued on the original purchase-money prior to the making of the contract for the division of the land.” The plaintiff', White, in his testimony states, that said interest was released by Core and this is sustained by the terms sot forth in the written receipt Exhibit “E.” Core does not testify on the subject or furnish any evidence to contradict this statement. There is no error shown, then, as to the action of the court on this point.
For these reasons the .said decree of March 17, 1881, is affirmed, with costs and thirty dollars damages to. appellee, White, against the appellant; and this canse is remanded to the circuit court of Pleasants county for further proceedings.
Decree Aeeirmed.