Davis v. Buery *

• Decision Date: 16 November 1922
• Citation: 114 S.E. 773
• Parties: DAVIS et al. v. BUERY et al.*
• Court: Virginia Supreme Court

114 S.E. 773

DAVIS et al.

v.BUERY et al.^*

Supreme Court of Appeals of Virginia.

Nov. 16, 1922.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Marketable Title.]

Appeal from Circuit Court, Alleghany County.

Suit by D. C. T. Davis, Jr., trustee, and another against Thomas C. Buery and others. From the decree rendered, plaintiffs appeal. Amended and affirmed.

This is a suit in equity instituted by D. C. T. Davis, Jr., trustee, and D. A. Langhorne (revived as to D. A. Langhorne upon his death in the name of his administratrix), against Thomas C. Buery and others, the object of which is to recover and enforce by attachment the claim of appellants against said Buery and others, appellees, for damages in a large amount alleged to be owing to the appellants by said Buery and others by reason of the alleged breach by the latter of a certain contract of sale of real estate, in writing, to which the said Buery and others, the vendors, were parties of the first part and the said Davis and D. A. Langhorne, the vendees, were parties of the second part.

The parties to the contract will be hereinafter referred to as vendors and vendees, respectively, or by their individual names.

The damages sought to be recovered are for the loss to the vendees of the bargain, consisting of the difference between the contract price and the alleged market value of the land, which was the subject of the contract of sale at the time of the alleged breach of the contract, and also a certain sum of money expended by D. A. Langhorne in having the titles to the land examined, and for the value of time alleged to have been occupiedin advertising and developing the property for resale.

Possession of the property was not delivered by the vendors to the vendees.

The decree under review allowed the vendees to recover the two payments of $10,000 each, made on account of the purchase money for the land, and entered judgment therefor, with interest from the dates of such respective payments, but declined to allow any other damages. From that decree the appellants have appealed. The appellees assign as cross-error the action of the court in allowing interest on one of the said payments, to wit, the $10,000 paid on the date of the contract.

The aforesaid contract bears date August 4, 1905, and was acknowledged for record on the next day. The sale which is involved in controversy in this suit embraced the fee and mineral rights in approximately 32, 000 acres of land, lying in Fayette, Greenbrier, and Nicholas counties in West Virginia, at the price of $27 per acre. The land consisted of about 200 different parcels, with a great number of different chains of title. The vendors were the widow and heirs of J. L. Buery, deceased, and derived such title as they had to said lands from the latter, who died heavily indebted, much of the indebtedness consisting of unpaid purchase money for and liens upon said lands, the vendors having the equitable title only to some of the Sands, the deeds of conveyance of certain of such lands to the vendors being in escrow at the time of said contract.

Prior to said contract a chancery suit had been instituted in the circuit court of Fayette county, W. Va., by said vendors, the object of which was to sell the said land or so much thereof as might be necessary to satisfy said indebtedness. This suit was pending at the time said contract was entered into, but no decree of sale of the land had been as yet entered therein. Creditors to a large amount existed at the time, who were pressing for the payment of their debts; and it was mutually understood by the vendors and vendees that said suit was available to both in order to properly apply the purchase money which had to be paid to satisfy liens and to obtain escrow deeds.

The aforementioned situation was in a general way well known to the said vendees at the time the said contract was entered into; and they knew and understood fully that the object of the sale on the part of the vendors was to pay off said debts and liens and to obtain said escrow deeds.

The said contract provided that the payment for said land should be as follows:

" * * * One-third cash, and the residue in three equal installments, with interest at 6 per cent., in six, twelve, and eighteen months from the delivery by the parties of the first part hereto unto the said D. C. T. Davis, Jr. trustee, or his assigns, of an apt and proper deed conveying said lands with covenants of general warranty."

The contract also contained, among other things, the following provisions:

"This agreement further witnesseth:

"3. That the said D. C. T. Davis, Jr., trustee, has this day paid unto the said Thomas C. Buery, Joseph E. Buery, Harry B. Buery, Daisy E. Nichol, and Julia A. Buery, the sum of $10,000 to be credited upon the cash payment for the lands, * * * which said payment is evidenced by a sight draft drawn by D. A. Langhorne to the order of D. C. T. Davis, Jr., trustee, on the First National Bank of Lynchburg, Va., and indorsed by the said Davis to the order of A. S. Guthrie, agent for the said Thomas C. Buery and others and parties of the first part hereto, and the said parties of the first part hereby acknowledge the receipt of the same. It is understood, however, that, if the parties of the first part should request, the said Guthrie may apply said $10,000 to the purchase of the said Myles, Bennett, and Crook-shank tracts of land hereinbefore mentioned and described, and in event said sum of money should be so used, the same shall not be deducted from the cash payment on the lands described in this contract, but shall he credited upon the deferred payments thereon.

*******

"4. Parties of the first part hereto shall furnish to the parties of the second part an abstract of title of the lands. * * * as speedily as possible, and not later than the 1st day of October, 1905, and may at the same time tender to the said D. C. T. Davis, Jr., trustee, or his assigns, an apt and proper deed conveying said lands according to their metes and bounds as now known, and with covenants of general warranty, and at the expiration of 15 days thereafter, (which time is given to the parties of the second part to examine said abstract of title and deed) the cash payment upon said lands shall at once become and fall due, provided said deed be found to be satisfactory by the parties of the second part.

"5. If, however, the parties of the second part should desire to survey said tracts of land, or any of them, they may do so at their own expense, but such survey shall not postpone the settlement of the cash payment on said lands as hereinbefore provided. The parties of the first part, in the event of a demand for any such survey, shall send at their own expense a surveyor with the surveyor of the parties of the second part, whose duty it shall be to point out. the boundary lines of said lands and verify the survey of the parties of the second part. In the event any such survey should decrease the number of acres in any of the tracts of land described in Exhibit 1, there shall be a compensatory abatement of the purchase money unto the parties of the second part, and in the event the number of acres in said tract of land, or either of them, should be found to be greater than the number contained in the deed tendered, then the parties of the second part shall pay unto the parties of the first part for such excess at the rate per acre named in the contract. Neither shall any survey that may bedemanded by the parties of the second part, or their assigns, postpone any of the deferred payments as they may fall due."

The $10,000 mentioned in the contract as paid as a credit on the cash payment of one-third of the purchase money was paid upon the execution of the contract as stated therein.

Oh October 4, 1005, the vendee, D. A. Langhorne, made a loan to the vendors of the sum of $10,000, which it Was mutually agreed In writing, while in the form of a loan, should in fact be accepted and credited as a further payment in part of the said cash payment when and if the same should become due and payable under the terms of the contract, with interest on such $10,000 from October 5, 1005.

On October 7, 1905, the vendors, through their attorneys, delivered to counsel for the vendees a number of memoranda pertaining to the title to the various tracts of land embraced in said contract and also draft of the form of the proposed deed provided for in the contract; and this furnishing of memoranda of abstracts of title to counsel for the vendees continued thereafter until the 14th day of November, 1905. On the last-named date the vendors, through their attorneys, advised the vendees, through their counsel, of certain defects in the chain of title to certain of the lands situated in Greenbrier county, and embodied a communication from counsel employed at Lewisburg, W. Va., setting forth certain defects not pointed out in the abstracts of title theretofore furnished.

Thereafter, on November 24, 1005, the vendees, through their attorneys delivered to the vendors through their attorneys written objections to the title to said land, setting forth some 671 objections to the title, consisting of alleged defects in the various chains of title, such as unreleased vendor's liens, defective acknowledgments to deeds, irregular court proceedings, failure of proper parties to unite in certain deeds, certain portions of the land as to which the vendor's title depended upon title by adverse possession, and asking for more definite evidence which would make it appear that title had been so acquired, etc., etc., showing various alleged defects in the record title.

Meanwhile, since shortly after October 7, 1905, being in pressing need of money to satisfy the creditors aforesaid, who were impatient of the delay, the vendors had been urgent in their requests that the vendee, Langhorne, would advance them some more money for use in satisfying the...