Dean BOYD v. Pancake Realty Co.

• Citation: 131 W.Va. 150
• Decision Date: 02 March 1948
• Docket Number: (No. 9982)
• Court: West Virginia Supreme Court
• Parties: Dean Boyd, et al. v. Pancake Realty Company

131 W.Va. 150

Dean Boyd, et al.

v.Pancake Realty Company

(No. 9982)

Supreme Court of Appeals of West Virginia.

Submitted February 3, 1948.

Decided March 2, 1948.

1. Appeal and Error

"A finding of a trial court on a question of fact will not be disturbed by this Court, except where such finding is contrary to the plain preponderance of the evidence, or is without evidence to support it." Point 7, Syl., Johnston v. Terry, 128 W. Va. 94.

2. Equity

A court of equity, having jurisdiction of the parties to an agreement for the purchase and sale of land situate in another state, will decree the rescission of that contract, as well as the rescission of a deed and mortgage executed pursuant thereto, when it is shown that the parties entered into such agreement and executed the deed and mortgage, through a mutual mistake as to a material existing fact.

3. Appeal and Error

"A decree appearing plainly right from the competent evidence in the case will not be reversed because of the admission of incompetent evidence." Syl., Ball v. Kearns, 41 W. Va. 657.

Appeal from Circuit Court, Cabell County.

Suit by Dean Boyd and wife against Pancake Realty Company for rescission of agreement for purchase and sale of realty, cancellation of deed and mortgage executed pursuant thereto and recovery of money paid thereunder. From an adverse decree, defendant appeals.

Affirmed.

Fox, Judge, dissenting.

George S. Wallace and Charles T. Wilson, for appellant.

John J. Hamrick, for appellees.

Lovtns, Judge:

This suit was instituted in the Circuit Court of Cabell County by Dean Boyd and Eva Boyd, his wife, against Pancake Realty Company. From an adverse decree, defendant appeals.

For some time prior to 1939, H. A. Childers owned a tract of land containing approximately 50 1/2acres, situate in Lawrence County, Ohio. In that year Childers and wife conveyed 32 acres, more or less, out of the 50 1/2 acre tract to David F. Thomas and Margery C. Thomas, his wife, who, in turn, conveyed the same to F. M. Carmack and Effie Carmack. Childers died seised and possessed of the 18 1/2-acre residue of the 50 1/2-acre tract of land, which was sold to defendant by his executrix on or about November 8, 1945.

In 1925 Childers erected a brick dwelling on what is now the 32-acre portion of the land, which he occupied as a residence. At the same time he removed a frame dwelling from the site of the brick house to a place located on what is now the 18 1/2-acre tract of land. A driveway extended from the frame dwelling house across the 32-acre tract of land to the public highway, which driveway had been used by Childers and his tenants for many years prior to the conveyance to Thomas and wife. This record does not disclose the contents of the deed from Childers and wife to Thomas and wife. The deed from Thomas and wife to Carrntack and wife does not contain a reservation of a right of way over the 32-acre tract to the l18 1/2 acre tract.

Under date of June 20, 1946, Dean Boyd and defendant executed a written agreement at Huntington, West Virginia, for the purchase and sale of the 18 1/2-acre tract of land for the sum of $3950.00. Boyd paid the sum of $2000.00 as part of the purchase price, the residue thereof to be paid in monthly installments of $35.00, with interest at six per cent. The agreement, among other things, provided that "Seller [defendant] agrees to finish putting stone on road to the property, which has been started." Under date of June 25, 1946, defendant conveyed the 18 1/2-acre tract to plaintiffs by deed, which instrument contains language indicating that defendant intended to convey all of its estate, title and interest in and to the land, together with all the privileges and appurtenances thereunto belonging. By mortgage bearing the same date as the deed, plaintiffs conveyed the 18 1/2-acre tract to defendant to secure the payment of the deferred purchase money. The land is referred to in the mortgage as being the same land conveyed to plaintiffs by defendant, and it is further stipulated that the deed of conveyance was to be recorded in the office of the Recorder of Lawrence County, Ohio, simultaneously with the mortgage. The deed and mortgage were received in the office of the Recorder of Lawrence County on the same day, and the deed was recorded August 4, 1946, the mortgage being recorded on August 5, 1946.

On or about July 10, 1946, plaintiffs moved into the dwelling house situate on the 181/2-acre tract, and resided therein until sometime in the early part of August, 1946. They kept their furniture on the premises until on or about September 2, 1946. In the interim they paid two monthly installments of the deferred purchase price, amounting to $70.00, and authorized a real estate agent to sell the land for their benefit. Later plaintiffs withdrew this authorization to sell.

In the meantime defendant, having previously started repair of the road, resumed such work on or about June 24, 1946, when it was stopped by F. M. Carmack. Thereafter Boyd went to the office of defendant and endeavored to rescind the agreement of purchase and sale, but such offer of rescission was refused by defendant.

Defendant attempted to purchase a right of way through the 32-acre tract of land, but was unsuccessful. At a later date defendant requested plaintiffs to permit a suit to be instituted in plaintiffs' names in the State of Ohio for the purpose of establishing a right of way through the 32-acre tract, defendant offering to pay counsel fees and the expenses incident to such litigation. Plaintiffs refused to accede to defendant's request, giving as the reason for such refusal that they did not want to engage in litigation with their neighbor.

Plaintiffs received the deed through the mails on or about August 28, 1946, and shortly thereafter removed their furniture from the premises, as hereinbefore stated. Some fruitless negotiations followed, during which plaintiffs demanded return of the money they had paid on the purchase price, which defendant refused to do. This suit followed, in which the plaintiffs seek to "cancel" the contract, the deed and mortgage made pursuant thereto, and to recover the sums paid by them thereon.

A considerable portion of the bill of complaint deals with an alleged failure of defendant to deliver the deed of conveyance to plaintiffs, it being stated therein that such failure was due to allegedly fraudulent conduct on the part of defendant. However, in addition thereto, the bill of complaint sufficiently alleges that the parties intended, by the agreement, to buy and sell not only the 18 1/2-acre tract of land, but also an undisputed right of way to and from the public highway, which right of way was to be stoned by the seller.

The trial court, in rendering its final decree, found that there was no evidence of fraud in the case, but " * * * that the contract dated the 20th day of June 1946, between the plaintiffs and the defendant should be cancelled on the ground of mistake." Accordingly, the trial court set aside the deed dated June 25, 1946; set aside the mortgage dated June 25, 1946; decreed that the plaintiffs recover from defendant sums aggregating $2070.00, representing payments made by plaintiffs to defendant thereon; decreed that plaintiffs execute and deliver to defendant an apt and proper deed conveying, without covenants of warranty, the real estate conveyed by the deed of June 25, 1946; and decreed that defendant pay the costs of this suit.

Inasmuch as all allegations of fraud related to the alleged failure of defendant to deliver the deed, we consider the trial court's finding, on proof, that no fraud existed, tantamount to a finding that there was, at least, constructive delivery of the deed. The record amply supports that finding. The deed was sent to the recorder's office for recordation, along with the mortgage bearing the same date. Recitals contained in the mortgage show that the land conveyed thereby is the same as was conveyed to plaintiffs by defendant. These actions show a clear intent, on the part of defendant, to pass the title of the 18 1/2-acre tract of land to plaintiffs, and, on the part of plaintiffs, it shows an implied acceptance of the conveyance. When the defendant delivered the deed for recordation with intent that it take effect as its deed, and plaintiffs accepted the deed by reciting in the mortgage the fact of its execution, constructive delivery was established so as to consummate the transaction. Bennett v. Neff, 130 W. Va. 121, 42 S. E. 2d 793, 802.

Notwithstanding that there was constructive delivery of the deed to them, plaintiffs introduced evidence tend- ing to prove that they did not know, until actual delivery thereof through the mails on or about August 28, 1946, that the deed failed, in express terms, to convey to them an easement over the 32-acre tract from the 18 1/2-acre tract to the public highway. The defendant offered evidence controverting the plaintiffs' evidence in this respect. However, on this dispute of fact, the trial court has found for the plaintiffs. Such finding is not against the plain preponderance of the whole evidence, and will not be disturbed here. Johnston v. Terry, 128 W. Va. 94, 36 S. E. 2d 489. Thus, for the purposes of this opinion, we must accept as true plaintiffs' contention that they did not ascertain that the agreement was not completely performed until after they actually received the deed on or about August 28, 1946, and discovered that the deed did not expressly convey the right of way. Immediately thereafter, they attempted to repudiate the entire transaction.

The trial chancellor found that there was a mutual mistake. Such finding is equivalent to a finding of fact that the parties to the agreement contemplated conveying and receiving in addition to the 18 1/2-acre tract of land, a known, unchallenged, and undisputed right of way for ingress and egress between said 181/2-acre tract of land and the public highway. An examination of the record...