Bros v. Peck

• Decision Date: 14 March 1905
• Citation: 50 S.E. 432,57 W.Va. 360
• Court: West Virginia Supreme Court
• Parties: BUSKIRK BROS. v. PECK et al.

57 W.Va. 360

50 S.E. 432

BUSKIRK BROS.

v.PECK et al.

Supreme Court of Appeals of West Virginia.

March 14, 1905.

SALE—EXECUTORY CONTRACT — DIVISIBILITY — PASSING OF TITLE—SALE OF TIMBER—MEASURING—PAYMENT—FORFEITURE — WAIVER — DECEDENT'S ESTATE—BIGHTS OF CREDITORS— RECEIVER.

1. An entire executory contract of sale may be divisible in the execution thereof, so as to vest title to parts of the property in the vendee as they are delivered; and whether, in any case, such partial transfer of title takes place, is a question of intent.

2. The point at which title passes in the progress of the execution of a contract of sale is a question of intent to be gathered from the terms of the contract, the nature of the property, its condition and situation, the purposes for which the contract was made, and the circumstances surrounding the parties, when the terms used are such as to make them admissible in evidence.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, § 517.]

3. Though, generally, a sale is not complete until the property has been ascertained and designated and made certain as to its identity, quantity, quality, and price, title will vest in the vendee without final and complete ascertainment of the aggregate quantity and price, if the intent that it shall do so be made manifest.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 517, 525.]

4. Title to property may pass under a contract of sale, though there be neither payment of the purchase money nor complete delivery of

possession.

[Ed. Note.—For cases in point, see vol. 43, Cent. Dig. Sales, §§ 529-551.]

5. If, by the terms of an executory contract of sale, the vendee is required to expend money and perform labor upon the property so as to change its character and situation, title to it as so altered will vest in the purchaser, unless a contrary intention be shown.

6. Under a contract of sale of the timber on a tract of land to be cut and removed by the vendee within a specified time, and measured and paid for each month and before removal, as the work progresses, title vests in the purchaser as the timber is cut down, and the vendor has a lien thereon for the purchase money.

7. The purpose of a clause in such contract providing that, in case the purchaser shall fail to have the timber measured and pay for the same each month as cut and hauled, he shall forfeit all right and title to the timber, whether cut or not, and all payments made on account thereof, is to prevent the accrual of a large indebtedness under the contract and the cutting of large quantities of timber without paying for it; and, if the vendor suffers large quantities to be cut down without such monthly measurement and payment, he will be deemed to have waived the benefit of such clause.

8. Equity will not permit the perversion of a forfeiture clause in a contract to a use or purpose for which it was never intended.

9. By permitting the accomplishment of the general result for the prevention of which a power of forfeiture has been inserted in a contract, and standing by in silence while large expenditures are made in the prosecution of the work, after the accrual of the right of forfeiture, under the belief that it will not be exercised, the party having such right of forfeiture waives it.

10. Creditors of a decedent's estate may resort to a court of equity for the ascertainment and preservation of the property and assets of the estate and subjection of the same to the payment of the debts against it, when the personal representative refuses to perform his duty in the premises, and, if necessary to full and adequate relief, a receiver may be appointed to take charge of the property.

11. A receiver may be appointed to take charge of, care for, put in marketable condition and sell timber belonging to a decedent's estate, lying on the lands of a stranger, subject to his purchase-money lien, at the instance of creditors, when the personal representative has refused to do so.

(Syllabus by the Court)

Appeal from Circuit Court, Logan County; E. S. Doolittle, Judge.

Bill by Buskirk Bros, against R. W. Peck, curator, and others. Decree for defendants, and complainants appeal. Reversed.

J. S. Miller, F. C. Leftwich, and J. S. Marcum, for appellants.

McComas & Northcott, for appellees.

POFFENBARGER, J. Buskirk Bros., merchants, to whom the estate of George A. Lilly, deceased, is indebted in an amount slightly exceeding the sum of $3,000 for merchandise furnished him while engaged in certain logging and timber operations, in the course of which he died, brought this suit in equity against the curator of said estate and Henry Mitchell, who claims a large amount of timber, which, according to the allegations of the bill, belongs to said estate, for the purpose of subjecting said timber and all other property of the decedent to the payment of his debts. This timber seems to constitute tbe chief assets of the estate. It was cut from the land of the defendant Henry Mitchell under a certain contract containing a forfeiture clause, under which Mitchell has taken possession of the timber, claiming Lilly's title thereto has been forfeited. The contract reads as follows:

"This agreement, made and entered into this 20th day of June, 1903, by and between Henry Mitchell of the first part and George A. Lilly of the second part, both of the county of Logan and state of West Virginia,

"Witnesseth: that the said Henry Mitchell is the owner in fee of a large tract of landon the East side of the Guyandotte river about five miles below the town of Aracoma and situate in Logan county, West Virginia, and that as such owner he has this day sold unto the said party of the second part all of the merchantable poplar, cucumber, ash and oak saw-log timber from sixteen inches in diameter and up 6 feet above the ground (small built trees not included) for which the said George A. Lilly agrees to pay the sum of eleven cents per cubic foot for all poplar, cucumber and ash timber and eight cents per cubic foot for all oak timber five hundred dollars of which is to be paid in cash before any part of the timber here mentioned shall be cut which shall be held and not accounted for until all of the timber herein mentioned shall be cut and measured and the said party of the second part further agrees to have the said timber which is cut and hauled to the measuring place measured over each month and not removed therefrom until fully paid for and in case the said Lilly fails to make such monthly payment then this contract is to be void and the said Lilly is to forfeit all the payments which he has made and the timber whether cut or not is to revert to the said Mitchell and the said Mitchell on his part is to give the said Lilly such rights of way as he may need in removing said timber which is under the contract of the said Mitchell together with such unmerchantable timber as the said Lilly may need in constructing roads or shanties for the purpose of marketing said timber the said Lilly to do as little damage as possible to said real estate and the said Lilly is to commence work on said timber on or before the 10th day of July, 1903, and is to have eighteen months to complete the removal of the same.

"Witness the following signature and seals this 20th day of June, 1903.

"Henry Mitchell, [Seal.]

"G. A. Lilly, [Seal.]"

Lilly began in July, 1903, and cut large quantities of poplar, cucumber, ash, and oak timber, continuing his work until sometime in February, 1904, when he was attacked by typhoid fever, and died in March, 1904. Within that period he paid Mitchell $1,600. As to the application of these payments by Lilly, if he made any, there is no competent evidence in the record. Mitchell, in his answer, and in an affidavit filed, says it was applied on the cucumber, poplar, and ash timber cut, and was sufficient to pay all the purchase money on account of that timber, except the sum of $309, which was paid by Nye & Bro., to whom Lilly sold that part of the timber cut by him. The bill charges that Lilly had cut, in addition to that timber, about 3, 000 oak logs, and had hauled to the banks of the Guyandotte river about 2, 000 of them, leaving the remainder in the woods, and that in the cutting and logging of this timber Lilly had spent about $6,000. It is further charged that the oak timber so cut down is worth $10,000 or more, after deduct ing the purchase money due thereon. The bill prayed for the appointment of a receiver to take charge of the timber and other property of the decedent, for the disclosure by Mitchell of the accounts between himself and Lilly, and for a reference to a commissioner to ascertain the property belonging to the estate and the debts against it and their priorities.

On the 28th day of April, 1904, R. P. Peck was appointed special receiver, and directed to take charge of the property admittedly belonging to the estate, make a complete inventory thereof, sell and convert the same into money, remove the timber cut and lying upon the lands of Mitchell, and sell the same, and keep ah Itemized account of his expense incurred in the removal and sale of said property.

Subsequently, Belle Lilly, widow of the deceased, was appointed administratrix, and an amended and supplemental bill was filed, making her and S. M. Hudson additional defendants, and process thereon was issued and served. This bill averred that Mitchell had sold the oak timber to S. M. Hudson, instead of to the Hudson School Furniture Company, as erroneously alleged in the original bill; that the curator was not a necessary party, he never having taken charge of the timber; that the administratrix had declined and refused to take charge of it; that the timber was worth, over and above the amount due Mitchell, $10,000 or more; that Lilly had expended about $6,000 In the work which he had done upon it; and that Mitchell, by his conduct, in permitting all this work to go on and large expenditures to be made in cutting and logging...