Curry v. Hale et al.

Decision Date20 December 1879
Citation15 W.Va. 867
PartiesCurry v. Hale et al.
CourtWest Virginia Supreme Court

1.When it is expressly or impliedly agreed that an incumbrance shall be deducted from the consideration, or paid by the purchaser, the vendor stands in the position of a surety, and is entitled to exoneration at the expense of the land.

2. Where a person deals with an agent, it is his duty to ascertain the extent of the agency; he deals with him at his own risk; the law presumes him to know the limit of the agent's power; and if the agent exceeds his authority, the contract will not bind the principal, but will bind the agent.

3. But if the agent exceeds his authority, the act may be ratified by the principal; and it is not necessary that there should be any positive or direct confirmation.

4. Where with a knowledge of the facts the principal acquiesces in the acts of the agent, under such circumstances as would make it his duty to repudiate such acts if he would avoid them, such acquiescence is a confirmation of the acts of the agent.

5.It is not necessary that such knowledge shall be shown by positive evidence; it may be deduced, or inferred from the circumstances and facts of the case.

6. The undivided interest of a tenant in common may be levied upon and sold under an attachment.

7. The co-tenants of the debtor are not proper parties to a suit for such purpose.

8.In an attachment suit in equity it is not necessary, or proper, to

direct an enquiry, whether the rents and profits of the real estate will pay the debt within a reasonable time.

Appeal from two decrees of the circuit court of the county of Kanawha, rendered one on the 18th day of December, 1876, and the other on the 28th day of May, 1878, in a cause in said court then pending, wherein C. B. Curry was plaintiff and J. P. Hale and others were defendants, allowed upon petition of A. G. Richey and G. A. Perdicaris.

Hon. Joseph Smith, judge of the seventh judicial circuit, rendered the decrees appealed from.

Johnson, Judge, furnishes the following statement of the case:

This is an attachment in equity, under the statute. The plaintiff filed his bill at April rules, 1876, of the circuit court of Kanawha county. The bill alleges substantially that, on tlie 12th day of September, 1873, the plaintiff was the owner of a certain tract of three hundred and seven acres of land in said county, on which there were trust liens, then recorded, amounting to some $1,500.00; that on that day the defendant, Hale, as the agent of the defendants, Fisk, Hotchkiss, Perdicaris and Richey, negotiated for and purchased the said land for himself, and as agent for the other defendants, lor the sum of $7,000.00, of which $2,000.00 was paid in cash, and two notes of $2,500.00 each were executed for the deferred payments; that at the time of said sale and purchase the said liens were well known to said Hale and his said principals, and at Hale's request the'plaintiff and his wife executed a deed to said Fisk for said land, and for the convenience and accommodation of said Fisk, Hotchkiss, Perdicaris and Richey, who were wealthy non-residents, said Hale executed the said notes for the said deferred installments of the purchase-money; that the said $2,000.00 which was paid in cash was furnished by said defendants, Perdicaris and Richey, and that they are jointly and severally bound with said Fisk, Hale and Hotchkiss for the residue of the purchase- money; that it was understood and agreed between the parties, that upon the maturity of the first of said notes, the amount ot the said lien was to be paid out of said payment, to the credit of said vendees, on the purchasemoney; that said Fisk held the title to said land under the deed irom plaintiff to him intrust for the said Perdicaris, Hotchkiss, Hale and Richey, to the extent of their interests therein. About the time of the maturity of the first note a crisis came, real property decreased in value, and the defendants failed utterly to make said payment. The plaintiff says that no part of said deferred installments have been paid; that without the said payment, or a part thereof, he was unable to pay off said losses, and that said property was advertised by the trustee, and said defendants still failing in fraud of plaintiff's rights to furnish the money to pay them, the land was sold at public auction on the 31st of August, 1875, for $1,775.00, and was so lost to him.

The bill further alleges that the defendants, Perdicaris and Richey, have interest in lands in Fayette county, West Virginia, which he has attached in this suit. The bill describes the lands, as in the return of the sheriff to the attachment, which regularly issued upon proper affidavit in the case, and was levied upon the interests of the defendant in said lands. Upon the issuing of the attachment the plaintiff, under the statute designated Francis Calvert, Cornelius Calvert, Joseph Patchell and Win. A. Quarrier guardian of William Calvert and Jas. F. Hansford as persons indebted to or having in their possession the effects of the defendants, Pliny Fisk, G. H. Perdicaris and A. J. Richey, and in his bill alleges that said persons, except Hansford, are indebted to the defendant, Fisk, in about the sum of $1,000.00, and that Hansford was a judgment debtor of said Fisk in the sum of $2,800.00, with interest and costs. Summons issued against each of the persons thus designated, requiring them to answer. The bill prays a decree against the said defendants for the residue of said purchase-money, and that said property might be subjected to pay it, &c.

The deed to Fisk, and the notes of Hale, are filed as exhibits with the bill.

On the 9th day of May, i876, the defendants, Richey and Perdicaris, appeared and filed a general demurrer to the bill which was set down for argument, and the same defendants at the same time tendered a special plea. On the 18th day of December, 1876, upon argument the court overruled the demurrer; and rejected the plea.

In March, 1877, at rules, the defendants, Richey and Perdicaris, filed their joint answer. They deny all the allegations of the bill, not expressly admitted. They admit that they were interested in the purchase of the tract of land described in the bill; but that they each represented an undivided third interest in said purchase; and that they each contributed one-third of the down payment of $2,000.00, made on said land; that the remaining one-third interest in said land was represented in equal proportions by Hale, Hotchkiss and Pliny Fisk. They deny however that John P. Hale at the time of said purchase, or at any time, was acting as agent for them, or either of them, in the matter. They deny that they at anytime had any knowledge of encumbrances on said land. They aver that they never knew or heard of such encumbrances, ''until about the time the first note for deferred payment was due." On learning this fact they at once caused examination of the title to said tract to be made, and then ascertained that there were two unsatisfied liens on said land, and that plaintiff had no title to a considerable and material interest in said tract of land.. They therefore declined to make further payments. They proceed to state the liens, and the difficulty about an undivided fourth of the coal in said land, which E. S. Arnold and others claimed and held, as they aver. They also aver that there were other claims to interests in said land. They aver that the only inducement the yhad to purchase an interest in said property, was its value as coal land. They further aver, "that before they had'any connection whatever with the transaction aforesaid, the complainant represented himself to be the owner of the aforesaid three hundred and seven acres, with a good and valid title thereto; that it was in view of their belief in such representations, and their own ignorance of any of the aforesaid defects, that they engaged in such transaction at all. They afterwards learned what they now here charge, that complainant misrepresented his title, and thereby fraudulently induced them to become interested in the purchase aforesaid, to the extent aforesaid. This fact and the defects in the title to the aforesaid tract, constituted the reasons which caused respondents to refuse to make any other payment, after the cash payment, on the said purchase." They pray that plaintiff may be required to refund to them the purchase-money they had paid, and that they may be discharged from any liability in the bill charged, &c.

The plaintiff filed a special replication to this answer, in which he denies making any fraudulent representations as to his title, and insists that under his contract with their agent it was their duty to discharge the liens on the land, and relies on the fact that he conveyed with special warranty.

Hansford answered the bill, and insisted that he did not owe Fisk anything; that the judgment recovered in his name was not his, and was not for his benefit. The other defendants did not answer the bill; and as to them, except the defendant Pliny Fisk, the bill was taken for confessed; and as to him, it was matured for hearing upon an order of publication, duly executed.

On the 28th day of May, 1878, the court entered a decree, on the pleadings, exhibits and depositions, and adjudged and decreed that the plaintiff recover against A. G. Richey the sum of $1,506.57, with interest from that date, which was one-third of the purchase-money due, after deducting from the whole balance the amount of the two trust liens, which the plaintiff alleged in his bill was to Lave been paid out of the proceeds of the first single bill when it became due; and that plaintiff also recover against G. A. Perdicaris a like sum; and of Jed. Hotchkiss $502.15, with interest, being one-ninth of the purchase-money yet due; and that execution might issue for said sums: and that unless the defendants, Richey and Perdicaris, should within sixty days pay the amounts decreed...

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