Big Huff Coal Co. v. Petitioner

• Court: Supreme Court of West Virginia
• Writing for the Court: WILLIAMS, J.
• Citation: 76 W.Va. 161
• Parties: Big Huff Coal Co. v. Thomas et als.
• Decision Date: 13 April 1915

76 W.Va. 161

Big Huff Coal Co.
v.
Thomas et als.

Supreme Court of Appeals of West Virginia.

Submitted March 2, 1915.
Decided April 13, 1915.

[76 W.Va. 161]

1. Quieting Title Cloud on Title Bill Allegation of Possession,

A bill by a grantee to cancel a prior contract of sale, executed to another by his grantor, as a cloud on his title, must aver possession of land. (p. 164).

2. Same Remedy at Law.

Equity will not entertain a suit to cancel a contract for the sale of land, solely on the ground that it was procured by fraudulent representations. In such case the law affords full, adequate and complete remedy. (p. 164).

3. Cancellation oF Instruments Remedy at Law.

Although equity jurisdiction to cancel written instruments does not depend upon the adequacy of a legal remedy, yet it will decline to exercise it if complainant's remedy, either by action or defense at law, is plain, adequate and complete. (p. 164).

4. Same Failure of Bill Effect on Cross-Bill-Independent Issues.

Where plaintiff files a bill, praying for the cancellation of a written contract, and defendant files a combined answer and crossbill, alleging affirmative matter, not only as defensive, but also as cause for affirmative relief, and prays for specific enforcement of the contract, the bill and cross-bill present independent issues, and the failure of the original bill does not necessarily carry with it the cross-bill. (p. 167).

[76 W.Va. 162]

5. Specific Performance Right to Belief Discretion.

Specific performance is not a remedy, existing as a matter of right, but rests in the judicial discretion of the chancellor, and to entitle a complainant to the relief, he must show that he has acted in good faith, and has been ready, willing and eager to perform the contract on his part. (p. 167).

(Lynch, Judge, absent.)

Appeal from Circuit Court, Wyoming County.

Suit by the Big Huff Coal Company against S. B. Thomas and others. From decree for plaintiff, the defendant named appeals.

Reversed and remanded.

R. F. Dunlap, for appellant,

Holt, Duncan & Holt, for appellee.

Williams, Judge:

On October 1, 1909, L. B. Cook, by written contract, sold to S. B. Thomas the mineral underlying two certain tracts of land in Wyoming county, described as containing 900, and 416 acres, respectively, and all the timber thereon, for mining purposes, except the poplar, ash, cucumber and walnut, at the price of $35 per acre, the quantity to be ascertained by survey, to be thereafter made. A survey was to be made by J. W. Heron of Huntington, and was to be begun within twenty-five days, and completed as soon as possible. Cook was then to execute to Thomas, or to anyone whom he might in writing designate, a deed with covenants of general warranty and against all encumbrances. One-third of the purchase money was to be paid in cash, on delivery of the deed, and the remaining two-thirds in one, and two years thereafter, with interest, and was to be secured by retention of a vendor's lien. Cook was also required to give Thomas five days written notice of the time when he would be ready to deliver the deed. The contract was signed by L. B. Cook and his wife, and by Thomas and acknowledged by him only, and recorded in Wyoming county October 14, 1909. The paper is spoken of throughout the record, by witnesses and attorneys, sometimes as a contract, and sometimes as an option. But it is, in express terms, a contract of sale. It recites a cash considera-

[76 W.Va. 163]

tion of $1.00, and Cook testified that nothing was actually paid. This point is not material to the validity of the contract, for it is under seal, which imports sufficient consideration. But it is important in determining whether or not plaintiff's bill is bad on demurrer, for not averring its readiness to restore Thomas to his status quo. Nothing having been paid by Thomas, there was nothing to be restored to him, and no tender was necessary.

For reasons hereinafter to be given, the sale was never completed, and, on the 16th of September, 1911, Cook sold the same, and other lands, to James D. Lowry, and, on the 21st of October, following, he and L. B. Cook made a joint deed therefor to the Big Huff Coal Company, a corporation, the respective wives of the grantors uniting in the conveyance. The deed conveyed all the mineral in both tracts, and all the timber on the larger tract, under eighteen inches in diameter, except the poplar, ash, cucumber and walnut, and all the timber, without regard to size, except the poplar, ash, cucumber and walnut, on the smaller tract. The 900 acre tract was found to contain but 850 acres, and will be hereafter so designated in this opinion.

Lowry and the Big Huff Coal Company purchased with knowledge of the Thomas contract. In his deed to the Big Huff Coal Company, Cook expressly assigned to it all the rights he had in his contract with Thomas, and authorized said company "to sue for its benefit to enforce said option or agreement, or to cancel or set aside same." But it was expressly stipulated that the acceptance thereof was not to be considered an acknowledgment of the validity of the Thomas contract, or of his right to enforce it.

Shortly after the recordation of its deed, the Big Huff Coal Company brought this suit to cancel the Thomas contract, as constituting a cloud upon its title, alleging that he had procured it through false and fraudulent representations made to Cook; that he had made material alterations in it, after he had procured Cook and his wife to sign it, without their knowledge or consent; and that he had failed and refused to comply with it, after he had received written notice from Cook, that he was ready to make him a deed, in compliance with its terms. The bill further alleges abandonment of the contract by

[76 W.Va. 164]

Thomas, long before Lowry purchased the land; also that he was not, on the 1st of October, 1909, or at any time since, ready, able and willing to comply with his contract by making payment for the land; and that said Cook and wife had taken no steps to have the contract cancelled for fraud, because they were lulled into a state of quietude and inaction, by the continuous and repeated misrepresentations of said Thomas. L. B. Cook and wife and James D. Lowry, as well as S. B. Thomas, were made defendants to the bill. Thomas demurred and also filed a combined answer and cross-bill, denying the allegations of fraud, and failure, on his part, to comply with the contract, and denying that he had, in any way, altered or changed the terms of the contract. He averred that he was always, and is now, ready and willing to comply with his contract, but that L. B. Cook had not cleared his title of certain defects, which made it impossible for him (Cook) to perform the contract, until about the time he sold the land to Lowry, and that he had no knowledge of that sale, until after it had been consummated by deed to the plaintiff. The crossbill answer made L. B. Cook and wife, C. F. Cook and A. H. Cook, who claimed a conflicting interest in the larger tract of land, parties defendant, and prayed for specific performance of his contract, averring his ability and readiness to comply with its terms. L. B. Cook and wife, and Lowry and the Big Huff Coal Company, all demurred and replied specially to the cross-bill answer. Their replies deny the allegations of the cross-bill, and contain, in substance, the same matter averred in the original bill. On the issues thus joined, numerous depositions were taken; and on the 29th of May, 1912, the cause was heard and a final decree entered, overruling the demurrer to the original bill and cancelling the contract of October 1, 1909. Thomas has appealed and assigns numerous errors.

One is that the demurrer to the plaintiff's bill was improperly overruled. The bill does not aver actual possession of the land by plaintiff, and it is insisted that this omission is fatal. This court has held, in numerous cases, that to entitle a plaintiff to maintain a bill to remove cloud from title, he must have the legal title and must also be in actual possession. Iguano Land &c. Co. v. Jones. 65 W. Va. 59; Whitehouse v. Jones, 60

[76 W.Va. 165]

W. Va. 680; Poling v. Poling, 61 "W. Va. 78; and Clayton v. Barr, 34 W. Va. 290. The mere constructive possession, which, in the absence of actual possession, follows the title, and is good for some purposes, is not sufficient to support a bill to remove cloud from title. Plaintiff must have a pedis possessio on the land, else he will be left to his remedy at law. Mackey v. Maxin, 63 W. Va. 14, and Hitchcox v. Morrison, 47 W. Va. 206. But counsel for appellee insist, that the rule respecting possession does not apply where other distinct grounds of equity jurisdiction exist, and that jurisdiction exists, in the present case, to cancel the contract on the ground of fraud. That equity will relieve against fraud, is generally, though not always true. It declines jurisdiction, even in matters of fraud, where the party complaining has a full, adequate and complete remedy at law, either by action or defense. The contract here involved is simply executory. It does not purport to pass title, and, if Cook were the party complaining, he could not maintain the suit without having possession. The court would not entertain his suit to cancel the contract, on the sole ground that it was fraudulently procured, simply because he might be personally...