Andrew Davis v. Prince E. Lilly

• Citation: 96 W.Va. 144
• Parties: Andrew Davis v. Prince E. Lilly
• Decision Date: 01 April 1924
• Court: Supreme Court of West Virginia

96 W.Va. 144

Andrew Davis

v.Prince E. Lilly

Supreme Court of Appeals of West Virginia.

Submitted March 18, 1924.

Decided April 1, 1924.

1. Equity. Where Allegations in a Bill Sufficient to Support Decree, Specific Prayer Not Necessary.

Where the allegations of fact in a hill are sufficient to support a decree and there is a prayer for general relief, a decree may be based thereon although there is no special or specific prayer for the relief granted, (p. 152).

2. Principal and Agent. Agent Personally Responsible on Contract Where Agency Undisclosed.

A person contracting as agent will be personally responsible, where, at the time of making the contract, his agency is undisclosed. (p. 153).

3. Reformation of Instruments. To Warrant Reformation for Mistake, It Must be Mutual; Mistake of Scrivener in Drawing Deed Mutual, for Which Equity Will Reform. Generally, to warrant equity to reform a deed for mistake the mistake must be mutual; but the mistake of a scrivener in preparing a deed is regarded as the mistake of both parties, he being regarded as the agent of both. (p. 153).

4. Compromise and Settlement. Compromise Between Parties

Competent to Contract Cannot be Affected by a Subsequent Investigation or Result.

A compromise of a doubtful question, either of law or fact, where fairly made between parties competent to contract, is binding and can not be affected by any subsequent investigation or result. (p. 154).

McGinnis. Judge, absent.

Appeal from Circuit Court, Raleigh County. Suit by Andrew Davis against Prince B. Lilly. From a decree for plaintiff, defendant appeals.

Reversed.

McGinnis & McGinnis, and C. W. Dillon, for appellant. J. W. Maxwell, for appellee.

Meredith, President:

This is a suit in equity to enforce payment of an alleged balance due on the purchase price of certain land and buildings sold and conveyed defendant. No lien being reserved in the deed, plaintiff invokes equity jurisdiction on the ground of mutual mistake. Plaintiff was awarded part of the relief prayed for and defendant appeals.

The controversy arose in this way. On August 29, 1919, plaintiff with his wife entered into a written contract with defendant whereby they agreed to sell and he agreed to buy all the coal, with the customary mining rights, in, upon and under two tracts of land containing approximately 120 acres and 23 acres respectively, at $150 per acre, $7000 of the purchase price to be paid on delivery of deed, the balance to be paid in two equal payments at six and twelve months, with interest. This contract also contained the following optional clause:

"Said deed shall also contain a provision that said Lilly and his assigns, may at any time within two years thereafter, npon written notice to said Andrew Davis, select so mnch of the surface of said land lying between the C. & 0. track and the county road, and running back from Cabell up Big White Stick Creek to the Perry Davis line, for the operation of said coal, and thereupon shall have the right to purchase the said surface at the price of Three Hundred Dollars ($300.00) per acre, cash; and further, if sufficient surface is not included in the above described area shall also have the right likewise to select surface area on the opposite side of the railroad track, and adjacent to the above described area, at the price of Four Hundred Dollars ($400.00) per acre, and if this store house and dwelling is taken the said Lilly shall pay $3000.00 therefor and about an acre of land around them, cash, and in addition to the payment per acre for said surface, if the dwellings now located thereon shall be included in such selection, said Lilly or his assigns shall pay for each of said dwellings so selected the price of Seven Hundred Dollars ($700.00), to said Andrew Davis", the said parties of the first part will thereupon execute apt and proper conveyance of such surface."

By deed dated November 22, 1919, plaintiff and his wife conveyed to defendant the coal and mining rights at $150 per acre. There is no controversy over the purchase price of the coal; but in the coal deed there was inserted an option clause for the sale and purchase of the surface land and buildings mentioned and described in the option clause in the original contract. The option in the coal deed reads as follows:

"In consideration aforesaid the said parties of the first part do further grant unto the said party of the second part, his heirs or assigns, the exclusive right and privileges for the term and period of two (2) years from and after the date hereof to select and purchase so much of the surface of the lands aforesaid lying between the Chesapeake and Ohio Railway track and the county road running back from Cabell up Big White Stick to the Perry Davis line for the operation of said coal at the price "of Three Hundred ($300.00) Dollars per acre to be paid in cash, and if sufficient surface is not embraced in the above described area, the said party of the second part, his heirs or assigns shall also have the right to select surface area on the opposite side of the railroad track and adjacent to the above described area and purchase the same at the price of Four Hundred Dollars ($400.00) per acre to be paid in cash, and if the store-house and dwelling on said land is taken, the said party of the second part, his heirs or assigns, shall pay therefor the sun. of Three Thousand Dollars ($3000.00) in cash for the same about one acre of land around them, and in addition to the payment per acre of the price aforesaid for said surface, if the dwelling now located thereon shall be included in the area of surface selected, the said party of the second part, his heirs or assigns, shall pay therefor the sum of Seven Hundred Dollars ($700.00), and the said parties of the first part hereby agree and bind themselves to convey said surface then selected as herein provided to the party of the second part, his heirs or assigns by an apt and proper deed with general warranty of title, free from all encumbrances."

By deed dated October 9, 1920, plaintiff and his wife conveyed to defendant two parcels of land, except the coal, one of 26.93 acres and the other of 21.52 acres, parts of the tracts mentioned in the original contract; however, they do not include the portions of surface land covered by the option contained therein, and this deed distinctly provides that "nothing herein contained shall be construed as in any way affecting the right granted by the parties of the first part to the party of the second part by the deed aforesaid (referring to the coal deed of November 22, 1919) to purchase certain surface and buildings in said deed mentioned and described."

A short time before the expiration of the option defendant notified plaintiff, after having made a survey of the properties, that he elected to buy a tract of 6.20 acres lying between the Chesapeake and Ohio Railway track and the county road, and also a tract of 1.15 acres on the opposite side of the railway track. On the two tracts there were four houses, two four room dwellings on the 6.20 acre tract, and a storehouse and a dwelling house on the 1.15 acre tract. On November 19, 1921, plaintiff and his wife conveyed these two parcels with the buildings located thereon, "in consideration of one hundred dollars cash in hand paid and other considerations not herein set forth, the receipt of all of which is hereby acknowledged," as stated in the deed. The transaction was closed between plaintiff and defendant's attorney, the defendant being absent. At that time a controversy arose over the amount that was to be paid, plaintiff contending that he was to be paid $300 per acre for the 6.20 acres, or $1860, and $700 for each of the dwelling houses located thereon, making $3260 for that tract; he does not seem to have contended then that he was to receive more than $3000 for the 1.15 acre tract, though that tract included a dwelling house as well as the storehouse. Defendant's attorney contended that plaintiff was not entitled to $700 each for the dwellings on the 6.20 acres, nor for the dwelling on the 1.15 acres, but finally agreed that he would pay $1860 for the 6.20 acres including the dwellings thereon, and $3700 for the 1.15 acres, or a total of $5560. Deducting $5.50 for revenue stamps for the deed, he paid plaintiff $5555.50 and plaintiff delivered the deed. This suit is to enforce payment of the purchase price of the two dwellings located on the 6.20 acre tract, under the original option; it purports to be a suit for specific performance of that original optional contract, which plaintiff asks the court to enforce by requiring the defendant to pay him $1400 for the two houses, and in default of payment that the 6.20 acres may be sold to satisfy his claim. It will be observed that there is a material difference between the option of purchase of the surface land and buildings as shown in the original contract dated August 29, 1919, and that shown in the coal deed dated November 22, 1919. That difference gives rise to the present controversy.

Plaintiff in his bill says that this variance in the two options was brought about by the mutual mistake of the parties; he does not in terms ask for a correction of the option clause in the deed of November 22, 1919, but says that the option contained in the contract of August 29, 1919, is the true and correct agreement and this is the contract which he prays may be enforced. He further says that all the deeds mentioned were prepared by defendant's attorney; that when the last deed, that of November 19, 1921, conveying the 6.20 acres and 1.15 acres, was executed and delivered, a discusion arose between him and defendant's attorney over the amount to be paid him, plaintiff insisting that he was entitled to receive $1400 more for the two houses on the 6.20 acres and the attorney contending that he was not; that the attorney took him to the county clerk's office and there read to him from the records the option clause...