MI DDL ETON v. SELBY.

• Decision Date: 17 December 1881
• Citation: 19 W.Va. 167
• Court: West Virginia Supreme Court
• Parties: MI DDL ETON v. SELBY.

19 W.Va. 167

MI DDL ETON

v.SELBY.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1881,

Decided December 17, 1881.

1.An appeal was allowed from two decrees in a suit and from a third decree sustaining a demurrer to a bill of review and dismissing the bill, which bill was brought to review the said two decrees; the appeal was subsequently dismissed, and afterwards another appeal was allowed to the same decrees. More than five years had elapsed from the time the said two decrees were pronounced, when the second appeal was allowed. Held:

The appeal as to these two decrees must be dismissed as improvidently awarded and the cause be determined upon the bill of review alone.

2.A bill of review can be filed for only two causes error in law appearing on the face of the decree or some new matter, which has arisen in time after the decree, and not upon any new proof, which by the exercise of reasonable diligence might have been used, when the decree was made.

3.In determining, what is error of law apparent on the face of the decree, the court cannot look into the evidence in order to see if the decree is erroneous, as that is the proper office of the court upon appeal; but in determining this question it is necessary to look at the whole record including the testimony to ascertain, whether upon the whole case error of law has been committed.

4.A verbal contract for the sale of land may be enforced in a court of equity, where there has been a part-performance of the contract. Possession under the contract and a payment of the purchase-money or a part thereof constitute such part-performance.

5.Where a suit is brought for the specific execution of a verbal contract for the sale of land against the purchaser, he is entitled upon application to have the matter of title referred to a commissioner to be reported upon, or the court may, where the proof raises a doubt as to the title, refer that matter to a commissioner; but unless such application be made, or such doubt appear, such reference is not necessary.

6.Generally a court of equity will not decree a specific execution of a contract for the sale of land, unless the vendor can make a good title.

7.A defendant in a chancery-suit may allege any such new matter in his answer, as would entitle him to affirmative relief, if alleged in a cross-bill, and may obtain such affirmative relief, if properly pleaded, under section 35 of chapter 125 of the Code; but to entitle him to that relief, he must pray for it in the answer, as he would have had to do, if he filed had a regular cross-bill.

8.Complainant is not required, and it would be bad pleading, to reply specially to such new matter, unless there is a prayer for affirmative relief in the answer.

Appeal from and supersedeas to three decrees of the circuit court of the county of Randolph, rendered respectively on the 25th day of April, 1874, on the 27th day of October, 1874, and on the 29th day of April, 1876, in a cause in said court then pending, wherein Henry C. Middleton was plaintiff, and Thomas Selby was defendant, allowed upon the petition of the said Selby.

Hon. John Brannon, judge of the sixth judicial circuit, rendered the decrees appealed from.

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

Henry C. Middleton instituted a suit in chancery in the circuit court of Randolph county against Thomas Selby to enforce the specific performance of a verbal contract for sale of land. The bill alleges, that the complainant sold the de- fendant a tract of two hundred acres of land on the 27th day of August, 1870, for the sum of $1,000.00; that in pursuance of the contract of sale the purchaser was put in immediate possession of the land and continued in possession up to the institution of the suit on the 28th day of August, 1872; that $100.00 of the purchase-money had been paid but no more, and the balance remained due and unpaid; that the complainant had the full legal and equitable title to the land and filed with the bill a deed with general warranty to the purchaser for the land. The prayer of the bill is for the sale of the land to satisfy the amount due on the contract and for general relief. The defendant was proceeded against as a non-resident.

The deposition of the complainant was taken, in which he testifies to the making of the contract and its terms the payment of the $100.00 and the delivery of possession of the property to Selby, who by his tenant had been in the actual, full and complete possession, ever since the contract was made. The deposition of the tenant was also taken, in which he states, that his landlord, Thomas Selby, told him of his purchase of land from Middleton, and that he wanted him to go on the land as his tenant, until he returned from England in October following; that Middleton would put him in posession; that Middleton did accompany him to the land and he moved into the house on the property and had continued in possession of the property ever since.

On the 25th day of April, 1874, the cause was heard, when a decree was pronounced appointing a commissioner to sell the lands, unless the purchase-money should be paid in sixty days. The money not being paid, the commissioner sold the land on the 10th day of August, 1874; and H. C. Middleton, the complainant, became the purchaser for $685.00. On the 23d day of October, 1874, Thomas Selby filed his answer, in which he says, that on the 27th day of August, he and the complainant had some conversation concerning the purchase of lands in West Virginia; and the complainant urged him to purchase the tract mentioned in the bill; and that the price of $1,000.00 and the terms of payment thereof were the price, and terms as mentioned in the bill; that those terms were satisfactory to him; but he denies that there was such a posi- tive verbal contract between him and the plaintiff concerning said land, as the plaintiff in his bill alleges there was; and he further denies, that he did positively agree to purchase said tract of land at the price and upon the terms as alleged in plaintiff's said bill"; and that shortly after the alleged contract he learned, that the complainant did not have a perfect title to the land; that he furnished him no abstract of title to the land, nor furnished him any means of determining, whether the title was good; that he wTas not at that time or at any time since able to furnish him with an abstract of perfect title, but on the contrary his title is defective in this, that the land was formerly part of a large survey of land owned by Henry C. Middleton, and that complainant holds the land under a conveyance from John B. Hillesay or William B. Storms; and that there is no deed on record in Randolph county to show, that the land was ever conveyed to said John B. Hillesay or William B. Storms by the said Henry C. Middleton or by any one else; also that a part of the land is claimed by Henry I. Westfalls, who has instituted suit in the circuit court of Upshur county against the administrator and heirs of Henry C. Middleton, to recover that part of the laud; that he is an alien and the subject of a foreign country and not a citizen of the United States or of the State of West Virginia, and being an alien he was advised, that by reason of the laws of the State of West Virginia, it was not safe for him to purchase and hold lands in the State; that he denies, that the complainant put him in possession of the land; that the plaintiff put a tenant on the land, after he had left the State of West Virginia, and that he was ignorant, that a tenant had been so placed upon the land, until his return from England in September, 1870; that the alleged payment of $100.00 was never made; that the complainant borrowed that sum from his son, Thomas J. Selby, and he requested and urged his son to let that money go as a payment on the land, and his son believing the complainant's representations, that the defendant had purchased the land, agreed to let the money go as a payment upon the land; that the complainant has conveyed the land to Steele & Rowan residing at or near the town of Clarksburg, West Virginia, and thus had put it out of his power to convey to him; that the alleged verbal contract is not such a contract as can be specifically enforced in a court of equity, and he relies upon the statute made for the prevention of frauds and perjuries.

On the 27th day of October, 1874, and at the same term of the court, when the answer was filed, the court pronounced its decree confirming the sale of the land to Middleton, and after applying the amount of the sale to the payment of the sum due by Selby decided against him the difference, to wit: $437.50 with interest from the date of the decree. On the 30th of April, 1875, Selby filed a bill of review in the circuit court of Randolph county praying, that the decrees of the 25th of April, 1874, and of the 27th day of October, 1874, might be reviewed and reversed, and the cause be reheard. The defendant in the bill demurred generally to the bill; and the demurrer was sustained, and the bill dismissed.

On the 21st day of October, 1876, Selby obtained an appeal to this Court from the said decrees of April 25, 1874, and October 27, 1874, and from the decree of the 29th day of April, 1876, sustaining the demurrer to the bill of review and dismissing the bill. On the 25th day of June, 1880, this appeal was dismissed for failure to print the record. On July 8th, 1880, another appeal was allowed from the same decree.

Henry Brannon for appellant cited the following authorities: 10 Gratt. 571; 25 Gratt. 146; 3 Minn. 317; Code, ch. 125, §36; 7 Leigh 128.

Ewing & Riley for appellee cited the following authorities: 12 W. Va. 371; 3 W. Va. 659; 2 Dan. Chy. Pr. 1632; 2 Clark (Ia.) 514; 8 Ohio St, 384; 13 Pet. 6; 5 Mason 303; Story Eq. PL §407; 3 Call 183; 12 Ohio 63; 3 Paine 368; Hayw. 189; 6 Mon. 153; 1 Dev. & Bat. Eq. 108, 110; 3 Sneed 397; 18 I11. 511; 6 W. Va. 249; 10 W. Va. 12; 9...