141 F. 500 (4th Cir. 1905), 579, Wood v. Deskins

Docket Nº:579.
Citation:141 F. 500
Party Name:WOOD v. DESKINS et al.
Case Date:November 15, 1905
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 500

141 F. 500 (4th Cir. 1905)



DESKINS et al.

No. 579.

United States Court of Appeals, Fourth Circuit.

November 15, 1905

Malcolm Jackson (Brown, Jackson, & Knight, on the brief, for appellant.

L. D. Vickers and C. C. Watts (Watts & Ashby, on the brief), for appellees.

Page 501

This is a suit in equity by vendors of land against the vendee to enforce the specific performance of the contract of sale and the payment of the balance of the purchase money. The contract was made April 15, 1889, between William H. Deskins, L. S. Deskins and his wife, and Anne Blackham and her husband, William Blackham, and Isabella Deskins, wife of James Deskins, all of the first part, and Stuart Wood, of the second part. By the contract the parties of the first part sold to Stuart Wood all the lands in Logan county, W.Va., on Miller's creek, formerly owned by James Deskins, containing 5,185 acres, more or less, at $4 per acre; also a track adjoining near the mouth of Miller's creek containing from 150 to 200 acres at $20 per acre. Wood was to have both of said tracks surveyed so as to ascertain the acreage by May 15, 1889, and the title thereto was to be perfected by the parties of the first part on or before the said May 15, 1889, and if the title to the 150 to 200 acres could not be perfected by that time it was to be perfected within a reasonable time thereafter. The contract then recites that Wood had paid $1,000 on April 12th, and on April 15th an additional $2,000, on account of purchase price, and, subject to the provisions of the contract, was to pay the balance of the purchase money on May 15, 1889. The contract then provides that, if there should be any delay in perfecting title to the 150 to 200 acre tract at the time specified, reasonable additional time should be given to perfect the same before payment of the purchase money on that tract; but, in the words of the contract, 'the payment of the balance of the purchase money on said 5,185-acre tract shall be made on said 15th day of May if the survey is then completed, and, if not completed, then shall be paid when the said survey is completed, which shall be completed as soon thereafter as it can by pushing the same with all reasonable dispatch. The settlement for said lands under this contract shall be made within five days after the completion of said survey at the First National Bank of Huntington, W.Va. If upon the delivery of such deed as hereinafter provided for said land or for the boundary of 5,185 acres (if the title to the other is not then perfected) to said party of the second part, or the same be ready for delivery at the place of settlement above specified and the balance of said purchase money is not then paid, this contract shall be void, and $1,000 part of said money already paid, shall be forfeited to the parties of the first part. And upon payment of the balance of the purchase money by said Stuart Wood to the said parties, then the said parties of the first part shall deliver a deed conveying said land with covenants of general warranty, free from all incumbrances or defects of title, including the release of the right of dower of the wife of James Deskins. A certificate of the clerk of the county court of Logan county showing the release of the liens against said land shall be procured, and, if not, then the party of the second part shall retain sufficient of the purchase money to satisfy the liens against said land appearing on the records of said county. Possession of said land shall be given on the 1st of March, 189 , but the parties of the second part shall have the right of ingress and egress for any purpose whatever; but if by reason thereof any damage should be done to the possession, the same shall be paid by said party of the second part, and while the said land is the possession of the said parties of the first part or their tenants proper care shall be taken of the premises.'

Wood proceeded without delay to have the land surveyed and the surveys were completed in the latter part of June, 1889. In the meantime, before the survey was finished, a suit was entered in the circuit court of Logan county, W.Va., by Clay and Headley, attacking a sale by Special Commissioner Shumate to W. H. Deskins, by which he acquired title to the 5,185-acre track, as fraudulent and void. Stuart Wood was made a party defendant. This suit

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was proceeded with and the Logan county court pronounced a decree setting aside the judicial sale by which W. H. Deskins acquired title. The decree was entered October 19, 1889, and on March 18, 1891, W. H. Deskins appealed to the Supreme Court of West Virginia, and that court, at its April term, 1892, reversed the decision of the circuit court of Logan county and dismissed the bill. The said Clay and Headley, after the suit in the Logan county court had been finally decided against them, on December, 1892, entered another suit in equity in the United States Circuit Court for the District of West Virginia, against L. S. Deskins, W. H. Deskins, william Blackham, anne E. Blackham, and Stuart Wood, praying a decree requiring Wood to pay the balance of purchase money for the 5, 185-acre track of land to Clay and Headley, and obtained a restraining order enjoining Wood from paying the balance of the purchase money to the extent of $7,240, which the complainants alleged belonged to them. On December 5, 1893, a decree was entered dissolving the injunction and dismissing the bill. An appeal was allowed upon giving bond for costs and damages, and the decree of the circuit court was affirmed by this court on October 2, 1894. It further appears that the 5,185-acre tract had been forfeited for the nonpayment of the taxes of 1885, and sold for said nonpayment and purchased by the sheriff for the state, and not redeemed within the time prescribed. Upon a bill filed to set aside the forfeiture upon the ground that the taxes for 1885 had been actually paid, a decree was entered January 15, 1897, annulling and setting aside the sale and forfeiture of the land. The land had been acquired by W. H. Deskins at a judicial sale made by W. K. Shumate, special commissioner, in a proceeding by Patton Bros. against L. S. Deskins and others; but it appears that no deed was executed by W. K. Shumate, commissioner, to William H. Deskins, until August 3, 1897. There were some judgments of record which were liens on the land, amounting to between $3,000 and $4,000, which Wood acquired and was entitled to deduct from the purchase money.

On July 6, 1889, Stuart Wood paid on account of the purchase money $8,000 and took the following receipt:

'Received July 6, 1889, of Stuart Wood, eight thousand dollars on account of purchase money on lands described in a certain contract of sale. * * * The balance to be paid and receipted for by me at a reasonable time after the disposition of the suit of Clay & Capital v. Deskins et al., and when the liens are removed from the land. The back taxes are to be paid by me out of the above amount.

On the same day Wood paid $2,000 to Mrs. Blackham, taking the following receipt:

'Received Logan, C. H., July 6, 1889, of Stuart Wood, his check of two thousand dollars on account of the purchase money coming to Anne E. Blackham, for her interest intended to be conveyed to said Wood in a certain contract for land on Miller's Creek. * * * The balance of the purchase money to be paid to and be receipted for by me at a reasonable time after the disposition of the suit of Clay & Headley v. Deskins et al., and when the liens are removed from the land. Anne E. Blackham, (seal) 'By William Blackham.'

In March 1890, the lands being vacant or about to be left vacant, Wood assumed possession of them in order to protect them. The track was nearly all wild mountain forest, not susceptible of cultivation and only valuable for the prospective value of the timber. The taxes paid by Wood from that time on were about $400 a year, and he did not receive from the property $50 a year. Mrs. Blackham, a daughter of James Deskins, the original owner of the tract, by an understanding with the other owners, was entitled to a certain portion of the 5,185-acre tract, which upon survey was found to contain 1,500 acres, and by reason of this ownership was made a party to the contract of purchase by Wood and was entitled to receive $6,000. Of this amount Wood had paid to her $4,800, but could not pay her the balance, because of a dispute between her and the other owners as to the proportion of certain expenses in clearing the title for which they contended she was liable. She and her husband had executed a deed for her interest to Wood and left it in escrow with Mr. Shumate to be delivered when the balance due her was paid. On the same

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date on which the $2,000 to her, July 6, 1889, Wood had signed and delivered to her attorney a statement that there remained due to her about $1,500, 'payable when title is perfected and suits finally disposed of. ' She did not at any time demand of Wood the payment of interest on her share or the purchase money, but at all times expressed her willingness to waive any claim to interest, but did dispute the claim made by the other owners that out of her share of the purchase money she should refund them certain expenses connected with clearing the title of suits and incumbrances.

There was considerable correspondence during the 1896 and 1897 between the attorneys of the Deskinses and Mr. Wood, or his attorney, Mr. Asbridge, each urging the other to bring a about a final settlement but without practical result. The attorneys for the Deskinses urged that Wood should pay the balance of the purchase money, and Wood urged them to put the title in proper shape to give him a deed clear of defects of title or incumbrances, stating that he was anxious to get a final...

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