Brown v. Gray

• Decision Date: 31 January 1911
• Citation: 70 S.E. 276,68 W.Va. 555
• Parties: BROWN et al. v. GRAY.
• Court: West Virginia Supreme Court

70 S.E. 276

68 W.Va. 555

BROWN et al. v. GRAY.

Supreme Court of Appeals of West Virginia.

January 31, 1911

Submitted March 2, 1910.

Syllabus by the Court.

Where a verbal contract is entire, and relates to a matter which renders it necessary, under the statute of frauds, that the promise should be in writing, the whole promise is void.

While partnership real estate (standing timber in this case) may in equity be impressed with the character of or converted into personalty, for partnership purposes, it is not out and out personalty so as to take it out of the statute of frauds.

A deed conveying standing timber to the grantee, his heirs or assigns, construed to invest in him a present estate in land, conditioned on his removing the timber within the period prescribed by the deed.

As a general rule the sale of standing timber is a contract conveying an interest in land, and within the inhibition of the statute of frauds.

The statute of frauds was as much designed to protect the vendee as the vendor of land; and its primary effect is to prohibit an action for the breach of an oral contract falling within its terms either against vendor or vendee.

Error from Circuit Court, Randolph County.

Action by M. M. Brown and others against John G. Gray. Judgment for defendant, and plaintiffs bring error. Affirmed.

W. B Maxwell, for plaintiffs in error.

Jared L. Wamsley, W. E. Baker, and Talbott & Hoover, for defendant in error.

MILLER J.

In an action of assumpsit, plaintiffs sought to recover of defendant, $50,000.00, damages for breach of an oral contract to purchase from them, at the price of $237,500.00, their lumber plant, consisting as the declaration alleges of all kinds and character of property, which usually go to make up a large modern plant, the same being all the property of every kind and character owned by the plaintiffs, as partners, and of which they were seized and possessed.

The declaration was in four counts. The last three counts, in addition to the description in the first count, describing the property as including "several hundred acres of land in fee simple," "several hundred acres of real estate in fee simple," and "real estate."

The defendant's demurrer to each count was overruled. He then pleaded and relied upon his pleas of nonassumpsit, and the statute of frauds, to which latter plea the plaintiffs proposed to file two special replications in writing, which were rejected. The plaintiffs then moved the court to amend their last three counts, by striking out the words above quoted, "several hundred acres of land in fee simple," "several hundred acres of real estate in fee simple," and "real estate," which motion was denied. The order of the court recites that the plaintiffs thereupon suffered a nonsuit as to the said last three counts. A question is presented which we need not decide, however, whether this action of plaintiffs did not amount to a re-traxit as to these three counts, rather than a nonsuit. Railway Co. v. Long, 26 W.Va. 692.

The conclusions we have reached on the merits renders it unnecessary for us to decide the several questions presented involving the rulings of the court below on the pleadings.

It is conceded in the agreement of facts that although the alleged sale to the defendant included personal property, not within the statute of frauds, it also included standing timber on 2,000 acres of land, the title to which had been previously acquired by the plaintiff Brown from McCabe and wife, by deed of July 27, 1904, an undivided half interest wherein was subsequently, by deed of December 31, 1904, conveyed by Brown and wife to his partner Hill, and that the timber thus acquired and held was, by the terms of the latter deed invested in the individual partners, subject to the terms and provisions of the partnership contract.

The law is: "Where a verbal contract is entire, and relates to a matter which renders it necessary under the statute of frauds, that the promise should be in writing, the whole promise is void." Engleby v. Harvey, 93 Va 440, 25 S.E. 225; Noyes' Ex'x v. Humphreys, 11 Grat. (Va.) 636; Burruss v. Hines, 94 Va. 413, 26 S.E. 875; Hilliard on Vendors, (2d Ed.) 103.

The contract being oral, it is conceded that if the timber included in the contract be real estate, and not a mere personal chattel, the statute of frauds is a bar to plaintiffs' claim, and that, as the court below decided, they should take nothing by their action.

Plaintiffs, however, rely, first, on the proposition that the timber being partnership property, it is out and out thereby personalty, not requiring a contract in writing to bind defendant. We cannot accede to this broad proposition. Partnership real estate is not out and out personal estate, unless converted into personalty by the agreement of the partners, or the manner in which it is conveyed to them. Davis v. Christian, 15 Grat. (Va.) 11, 11 Anno. 728. Partnership real estate may in equity be converted into personalty for the purposes of the partnership, but such conversion is equitable only, the legal title remaining in the partners, and can, under our statute, be divested out of them only by deed or will. Davis v. Christian, supra; Cunningham v. Ward, 30 W.Va. 572, 5 S.E. 646; Zane v. Sawtell, 11 W.Va. 50; 30 Cyc.§§ 434, 435, and 438. Our conclusion is that if the timber sold be real estate the case is not taken out of the statute of frauds, by the mere fact that the title thereto is held by the individual partners as partnership property.

Another proposition relied on is, that the timber, thus held, is not real estate. This is the controlling question in the case. Its answer depends mainly upon the construction to be given to the deed of July 27, 1904, from McCabe and wife to Brown. The words of that conveyance are, "have granted bargained, sold, assigned and set over, and by these presents do hereby grant, bargain, sell, convey, assign, transfer, and set over unto the said M. M. Brown, his heirs and assigns, all the timber, bark, wood and trees standing, lying and being upon that certain tract or parcel of land lying on the west side of Shaver's Mountain and on the waters of Shaver's Fork of Cheat River in Randolph County, State of West Virginia, and bounded and described as follows." After describing the land by metes and bounds this deed contains also the following provisions: "The party of the second part and his heirs and assigns shall have the right to enter upon the premises for the purpose of cutting and removing said timber, wood, trees and bark for and during the time of 10 years from May 4, 1904, and at the expiration of 10 years from May 4, 1904, all the rights of the said second party hereto shall cease and determine, and the timber, bark, wood and trees then remaining on said premises shall revert to and become the property of the party of the first part hereto as aforesaid as if this deed had never been made. The party of the second part shall have the right, however, to remove his mills, machinery and all other property at any time within six months after the said term of 10 years has expired, but this shall not operate to extend the term for removing the timber." "In case the said party of the second part shall sell the...