Davis v. Lilly
| Decision Date | 01 April 1924 |
| Docket Number | (No. 4946.) |
| Citation | 122 S.E. 444 |
| Parties | DAVIS. v. LILLY. |
| Court | West Virginia Supreme Court |
(Syllabus by the Court.)
Appeal from Circuit Court, Raleigh County.
Suit by Andrew Davis against Prince E. Lilly. From a decree for plaintiff, defendant appeals. Reversed and bill dismissed.
McGinnis & McGinnis, of Beckley, and C. W. Dillon, of Fayetteville, for appellant.
J. W. Maxwell, of Beckley, for appellee.
MEREDITH, P. This is a suit in equity to enforce payment of an alleged balance due on the purchase price of certain land and buildings, sold and conveyed to defendant. No lien being reserved in the deed, plaintiff invokes equity jurisdiction on the ground of mutual mistake. Plaintiff was awarded part of the relief prayed for, and defendant appeals.
The controversy arose in this way: On August 29, 1919, plaintiff, with his wife, entered into a written contract with defendant whereby they agreed to sell, and he agreed to buy, all the coal, with the customary mining rights, in, upon, and under two tracts of land containing approximately 120 acres and 23 acres, respectively, at $150 per acre, $7,000 of the purchase price to be paid on delivery of deed, the balance to be paid intwo equal payments, at six and twelve months, with interest. This contract also contained the following optional clause:
"Said deed shall also contain a provision that said Lilly and his assigns, may at any time, within two years thereafter, upon written notice to said Andrew Davis, select so much of the surface of said land, lying between the C. & O. track and the county road, and running back from Cabell, up Big White Stick creek, to the Perry Davis line, for the operation of said coal, and thereupon shall have the right to purchase the said surface at the price of three hundred dollars ($300.00) per acre, cash; and, further, if sufficient surface is not included in the above described area, shall also have the right likewise to select surface area on the opposite side of the railroad track, and adjacent to the above-described area, at the price of four hundred dollars ($400.00) per acre; and, if this storehouse and dwelling is taken, the said Lilly shall pay $3,000.00 therefor and about an acre of land around them, cash; and in addition to the payment per acre for said surface, if the dwellings now located thereon shall be included in such selection, said Lilly, or his assigns, shall pay for each of said dwellings so selected the price of seven hundred dollars ($700.00), to said Andrew Davis, the said parties of the first part will thereupon execute apt and proper conveyance of such surface."
By deed dated November 22, 1919, plaintiff and his wife conveyed to defendant the coal and mining rights at $150 per acre. There is no controversy over the purchase price of the coal; but in the coal deed there was inserted an option clause for the sale and purchase of the surface land and buildings mentioned and described in the option clause in the original contract. The option in the coal deed reads as follows:
A short time before the expiration of the option defendant notified plaintiff, after having made a survey of the properties, that he elected to buy a tract of 6.20 acres lying between the Chesapeake & Ohio Railway track and the county road, and also a tract of 1.15 acres on the opposite side of the railway track. On the two tracts there were four houses—two four-room dwellings on the 6.20-acre tract, and a storehouse and a dwelling house on the 1.15-acre tract. On November 19, 1921, plaintiff and his wife conveyed these two parcels, with the buildings located thereon, "in consideration of one hundred dollars cash in hand paid, and other considerations not herein set forth, the receipt of all of which is hereby acknowledged, " as stated in the deed. The transaction was closed between plaintiff and defendant's attorney, the defendant being absent. At that time a controversy arose over the amount that was to be paid, plaintiff contending that he was to be paid $300 per acre for the 6.20 acres, or $1,860, and $700 for each of the dwelling houses located thereon, making $3,-260 for that tract; he does not seem to have contended, then, that he was to receive more than $3,000 for the 1.15-acre tract, though that tract included a dwelling house, as well as the storehouse. Defendant's attorney contended that plaintiff was not entitled to $700 each for the dwellings on the 6.20 acres, nor for the dwelling on the 1.15 acres, but finally agreed that he would pay $1,860 for the 6.20 acres, including the dwellings thereon, and $3,700 for the 1.15 acres, or a total of $5,560. Deducting $5.50 for revenue stamps for the deed, he paid plaintiff $5,555.50, and plaintiff delivered the deed. This suit is to enforce payment of the purchase price of the two dwellings located on the 6.20-acre tract, under the original option; it purports to be a suit for specific per-formance of that original optional contract, which plaintiff asks the court to enforce by requiring the defendant to pay him $1,400 for the two houses, and in default of payment that the 6.20 acres may be sold to satisfy his claim. It will be observed that there is a material difference between the option of purchase of the surface land and buildings, as shown in the original contract dated August 29, 1919, and that shown in the coal deed dated November 22, 1919. That difference gives rise to the present controversy.
Plaintiff in his bill says that this variance in the two options was brought about by the mutual mistake of the parties; he does not in terms ask for a correction of the option clause in the deed of November 22, 1919, but says that the option contained in the contract of August 29, 1919, is the true and correct agreement, and this is the contract which he prays may be enforced. He further says that all the deeds mentioned were prepared by defendant's attorney; that when the last deed, that of November 19, 1921, conveying the 6.20 acres and 1.15 acres, was executed and delivered, a discussion arose between him and defendant's attorney over the amount to be paid him, plaintiff insisting that he was entitled to receive $1,400 more for the two houses on the 6.20 acres, and the attorney contending that he was not; that the attorney took him to the county clerk's office and there read to him, from the records, the option clause contained in the deed of November 22, 1919, the plaintiff all the while believing he was reading the option clause contained in the original contract of August 29, 1919, and hence, by the mutual mistake of plaintiff and defendant's attorney, he was paid only the sum of $5,560; that later, upon reading the original contract and upon defendant's return, he took up with him the matter of the payment of the additional $1,400, and he then informed him he was acting in the purchase for a corporation and would recommend the payment thereof by the corporation, but stated that he would have to await the return of its manager, who was then absent from the state.
Defendant demurred to the bill, and by answer he denies that there was any mutual mistake; he denies that, under the original option of August 29, 1919, the plaintiff was to be paid $700 for each of the two dwellings on the 6.20-acre tract, but says that this tract was to be paid for at $300 per acre, and there was to be no additional consideration for the two dwellings thereon. He further says that the $700, provided for in the option contract and in the deed of November 22, 1919, "to be paid for dwellings, had reference to dwellings upon other lands, and...
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