Craig v. Gauley- Coal Land Co

• Court: Supreme Court of West Virginia
• Writing for the Court: POFFENBARGER
• Citation: 80 S.E. 945,73 W.Va. 624
• Parties: CRAIG et al. v. GAULEY- COAL LAND CO.
• Decision Date: 03 February 1914

80 S.E. 945
73 W.Va. 624

CRAIG et al.
v.
GAULEY-COAL LAND CO.

Supreme Court of Appeals of West Virginia.

Feb. 3, 1914.

(Syllabus by the Court.)

1. Vendor and Purchaser (§§ 65, 164*) — Remedy or a Vendor — Construction of Deed.

A deed conveying a tract of land by metes and bounds in consideration of a stipulated price per acre, describing it as containing by survey 900 acres, reciting the total supposed amount of purchase money, and reserving a vendor's lien to secure deferred payments thereof as estimated or supposed, evidences a sale of the land by the acre and gives right to the grantors to demand compensation for an excess at the stipulated price per acre.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent Dig. §§ 93-96, 328; Dec. Dig. §§ 65, 164.*]

2. Vendor and Purchaser (§ 258*) — Vendor's Lien—Debt Secured.

But the vendor's lien, limited in terms to the two notes for deferred payments, does not secure payment of compensation for such excess.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 655-657; Dec. Dig. § 258.*]

3. Vendor and Purchaser (§ 267*) — Vendor's Lien — Extinguishment by Release —Compensation for Excess.

In such case, an instrument duly executed as a release, one part of which releases the right reserved in the deed, and the other stipulates against estoppel from collection of compensation for any excess that may afterwards be discovered, completely extinguishes the lien and saves only the right to sue for such compensation.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 751-758; Dec. Dig. § 267.*]

4. Equity (§ 87*)—Limitation of Actions-Application of Statute—Concurrent Jurisdiction.

The cause of action arising out of mutual mistake in the settlement as to the amount of purchase money in such case is one of concurrent jurisdiction and is subject to the bar of the statute of limitations.

[Ed. Note.—For other cases, see Equity, Cent. Dig. §§ 242-244, 395; Dec. Dig. § 87.*]

5. Limitation of Actions (§ 96*) — Commencement of Period.

In the absence of obstruction to the right of action for such a claim by fraud in some form, the statute runs against it from the date of the settlement.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 337, 475, 476; Dec. Dig. § 96.*]

6. Limitation of Actions (§ 99*) — Commencement of Period—Mutual Mistake— Settlement.

Acts between the grantees and strangers to the contract, and to which the grantors were in no way parties, do not constitute such fraud, even though they may have tended to conceal the cause of action.

[Ed. Note.—For other cases, see Limitation of Actions, Cent. Dig. §§ 477-479; Dec. Dig. § 99.*]

Appeal from Circuit Court, Nicholas County.

Bill by J. S. Craig and others against the Gauley Coal Land Company. From a decree for plaintiffs, defendant appeals. Reversed and remanded.

Alderson & Breckinridge, of Summerville, and Brown, Jackson & Knight and Angus W. McDonald, all of Charleston, for appellant.

Craig & Wolverton, of Richwood, and Mollohan, McClintic & Mathews, of Charleston, for appellees.

[80 S.E. 946]

POFFENBARGER, J. On a bill for compensation for excess of land in a sale and conveyance thereof by the acre, filed by J. S. Craig and the executor of the will of W. M. Tyree against the Gauley Coal Land Company, the trial court found the land conveyed had overrun the estimated quantity by 159.67 acres and entered a decree for the purchase money thereof at the rate of $5 per acre, with interest thereon from March 18, 1891, the date of the deed, which amounted at the date of the decree to the sum of $1,75S.35. It further declared said sum to be a lien upon the land by virtue of a reservation in the deed, and ordered a sale of the land, in case of default in the payment of the sum so ascertained and decreed.

The several defenses set up to the bill were: (1) That the sale was one in gross or at hazard, wherefore there was no right of recovery, even though the excess be conceded; (2) that the vendor's lien reserved in the deed does not cover the excess, even though the sale was by the acre and originally there was liability on the contract for compensation for the excess; (3) that the claim, if originally well founded, is barred by laches and the statute of limitations; and (4) that the Gauley Coal Land Company, the successor of the Gauley Coal Land Association, to which the conveyance had been made, is a purchaser for value without notice and so not liable for the excess.

The land was conveyed by metes and bounds as a tract containing by survey 900 acres, and the purchase money computed and agreed upon as $4,500, of which $1,500 was paid in cash and the balance left as a lien upon the land, payable in two installments, due, respectively, in six months and one year from the date of the deed. Reciting these two notes, representing the deferred payments of the purchase money, the deed reserved the vendor's lien in the following terms: "To secure the payment of which a lien is expressly reserved on the land hereby conveyed."

Reciting a consideration of "five dollars per acre, " the deed virtually says the contract of sale was by the acre and not of a tract of land in gross. If the specification of 900 acres as the quantity of the land and the recital of $4,500 as the purchase money, the latter being an exact multiple of the former, renders the deed ambiguous on its face as to whether or not the sale was by the acre, the recital of $5 per acre as the consideration of the grant resolves such ambiguity in favor of the grantors, for presumptively it is a recital pro tanto of the contract, pursuant to which the conveyance was made, whether that contract was verbal or written. When considered as raising an ambiguity as to the character of the contract, the recitals of quantity and total amount of purchase money are treated as mere circumstances, not as terms of the contract, importing agreement. As circumstances, they raise a doubt as to the character of the contract, removable by resort to extraneous evidence. In the recital as to the consideration there is deeper and more potent significance. The terms thereof are contractual...