Blue v. Blue S.

• Decision Date: 12 December 1922
• Citation: 92 W.Va. 574
• Court: West Virginia Supreme Court
• Parties: Charles E. Blue v. Campbell W. Blue et als.

92 W.Va. 574

Charles E. Blue

v.Campbell W. Blue et als.

Supreme Court of Appeals of West Virginia.

Submitted November 21, 1922.

Decided December 12, 1922.

1. Reformation of Instruments Equity will not Reform Deed for Alleged Mutual Mistake Unless Shown by Clear and Unequivocal Evidence.

A court of equity will not reform a deed because of alleged mutual mistake therein, unless it is shown by clear, convincing and unequivocal evidence that a mutual mistake was made. (p. 580).

2. Equity Cannot Grant Under General Prayer Relief Inconsistent with Special Prayer.

Where a bill contemplates, and the prayer asks for specific relief, in this case reformation of a deed, the court cannot grant relief inconsistent therewith, under the clause in the prayer for general relief, (p. 582).

3. Appeal, and Error Where Specific Relief Denied, Appellate Court May Remand with Leave to Amend Pleadings that Equities May be Judicially Determined.

But where such specific relief is properly denied upon the final hearing, and the case has been so developed as to show there are equities between the parties arising out of a joint adventure which should be speedily determined and without the delays incident upon a new suit for that purpose, the appellate court may remand the cause, with leave to either of the parties to amend or supplement his pleadings, if he so desires, as to form a proper basis on which the equities may be judicially determined. The situation of the parties and the exigencies of this cause warrant such procedure, (p. 582).

Appeal from Circuit Court, Jefferson County.

Suit by Charles E. Blue against Campbell W. Blue and others. Prom the decree rendered, the plaintiff appeals.

Modified and affirmed.

George M. Beltzhoover, Jr., and Walker, Itilmer & Byrer, for appellant.

Brown & Brown, for appellees.

Lively, Judge:

This suit was instituted solely for the reformation of a deed dated May 30, 1910, executed by W. 0. Norris and others to Charles E. Blue, the plaintiff, and Campbell W. Blue, the principal defendant, conveying to them a tract of about 190 acres of land in Jefferson county, on the ground that there was a mutual mistake in the preparation of the deed. The plaintiff in substance contends that the fee simple title was intended to be and should have been conveyed to him. Defendant says that there was a mistake in the making of the deed, but contends that the mistake is only that it conveys to him a one-dalf undivided interest, whereas he was only entitled to and should have a one-third undivided interest, by virtue of a contract existing between himself and the plaintiff.

Plaintiff and defendant are cousins, and married sisters; and prior to 1910 resided in the city of Wheeling where the plaintiff owned and operated a mould and foundry shop, ' in which defendant was employed at a monthly wage of $125.00. Defendant, prior to his employment in Wheeling in the mould and foundry shop, had had considerable experience in raising and marketing peaches and apples in the eastern part of the state. Both parties appear to have been desirous of embarking in the orchard business, and a tentative verbal agreement seems to have been entered into by them by which the plaintiff, who had financial means, should buy and pay for a suitable tract of orchard land if one could be found, and defendant, who had experience and skill in the orchard business, should take charge of, develop and operate the farm, putting in his time, skill and experience in lieu of his share of the necessary capital, he to have one-third interest therein and the plaintiff a two-thirds interest therein. Defendant, by mutual agreement, about the year 1908, made a trip to some of the northwestern states, the apple growing sections, for the purpose of finding a suitable farm for the purpose indicated, but found that the prices and conditions were not suitable, and returned to Wheeling where he continued his work in the mould and foundry shop. Later, in 1910, plaintiff learned, through Col. McDonald, a personal friend who resided in Jefferson county, that the farm now the subject of litigation, was suitable for that purpose and could be purchased. The two cousins, about the 4th of May, 1910, in company with Col. McDonald and his son, went and personally inspected the farm, and concluded to buy. Plaintiff left Jefferson county the night of the clay of the examination of the property, and placed the details of the purchase in the hands of his agent, Col. McDonald. The defendant, after visiting some other farms which were for sale, left the county on the following day. An executory contract was entered into by Norris and others, the owners, with plaintiff, setting out the terms of the prospective purchase. The farm was to be purchased for $16,320.00, $8,320.00 of which was to be paid by the first of June following, and the remainder in payments secured by a vendor's lien. On the 30th of the same month the deed in question was executed, Col. McDonald, who is now dead, representing the plaintiff and paying the purchase price and delivering the purchase money notes for the deferred payments, which notes remain unpaid, and the deed was duly admitted to record in the county clerk's office, remaining there until in 1920 when it was delivered to the plaintiff. Neither plaintiff nor defendant was present at the time the deed was executed and delivered. The vendors testified that the deed was made to the plaintiff and defendant jointly at the direction of Col. McDonald, the agent of the plaintiff. Marshall McDonald, the son of Col. McDonald, who accompanied his father and the plaintiff and defendant when the property was visited and agreed to be purchased, testified that he understood from both plaintiff and defendant that they were jointly interested in the purchase. His evidence on that point is: "The understanding I had at that time, and have since held, was that they were purchasing the farm as partners C. E. Blue Was putting up the money to buy the farm, and C. W. Blue was putting in his services and expert knowledge of fruit growing into the partnership." He also says that his father gave to the draftsman of the deed instructions to prepare the deed as it was afterwards drawn. Defendant says that prior to the visit to Jefferson county to inspect the farm a verbal agree- merit was made between himself and plaintiff concerning their joint interest in the proposed purchase, which afterwards (and he is not sure whether it was before the execution of the deed or afterwards) was reduced to writing by the plaintiff, one copy of which plaintiff signed and delivered to defendant, and the other copy of which defendant signed and delivered to plaintiff, the substance of which was that plaintiff was to furnish the money for the purchase and operation of the farm, and have a third interest therein, and he, defendant, was to take charge of the land, plant and develop the orchard and have a one-third interest therein, to be paid for out of the profits, if any profits were made therefrom, and if none were made he was to owe nothing to the plaintiff. Plaintiff denies that any such contract was ever reduced to writing. The copy of the alleged contract which was in possession of defendant was burned up in a fire which destroyed his dwelling house on the farm, in the year 1913. William V. Ilogue, a brother-in-law to plaintiff and defendant, and who at that time worked for plaintiff, testified that he saw the contract which was in a small safe at the office of the Wheeling Mould and Foundry Company, of which he had charge at the time, and that the contract was afterwards transferred to plaintiff's safety deposit box in the National Exchange Bank in Wheeling. His recollection of the contents of the contract is as follows: "Mr. C. E. Blue and C. W. Blue were to buy Orchard Crest Farm jointly. Mr. C. E. Blue was to put up the necessary purchase price and money to operate same until they had planted the orchard and the profits from same were such that C. W. Blue could buy his interest in same. C. E. Blue was also to pay C. W. Blue a nominal salary from the time that they bought until the orchard paid enough to pay off his indebtedness." This copy of the contract, if it existed, was never produced.

In the early part of 1911 defendant moved upon the farm, took charge of it, and in due course of time planted an orchard of about 80 acres, consisting of about 8, 000 fruit trees, which at the time of the institution of the litigation had begun to bear and bring in considerable profits. He testified that the sale from the farm of the orchard products amounted to $6,790.27; sale of live stock and wool, $29,698.37; farm products, $12,690.70; and miscellaneous receipts from the farm, $1,539.19; that he had kept a strict account of all of the expenditures and had deposited all the receipts in banks designated by plaintiff and had paid practically all of the expenses of the farm by checks drawn thereon. Plaintiff seemed to take a great interest in the development of the property, made frequent visits thereto and furnished considerable money for its operation. He testified that he had furnished, including purchase money and interest on the advancements, something like $50,000.00 for its operation and development. Defendant testified that the amount furnished by plaintiff for that purpose would not exceed $20,000.00, including the cash purchase money and interest. Defendant was to receive a salary of $75.00 per month, and from 1911 until 1916 was paid $50.00 a month, only, the other $25.00 being retained by plaintiff as part payment on defendant's interest in the farm. A great many letters passed between the parties concerning the joint venture, which are in evidence, and which are not of particular value to the issue, except one written by plaintiff to defendant, dated at Wheeling, West Virginia, on January 19, 1916, the opening paragraph of which is the pertinent part and which is as follows: "Dear Campbell. ...