Doonan v. Glynn et al.

• Decision Date: 30 October 1886
• Citation: 28 W.Va. 715
• Court: West Virginia Supreme Court
• Parties: Doonan v. Glynn et al.

28 W.Va. 715

Doonan

v.Glynn et al.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1886.

Decided October 30, 1886.

1. Facts in controversy on the trial of an issue not necessarily involved in the issue, though ever so important in its determination, are not settled by the judgment on the issue, but are open to controversy in any other suit between the same parties or their privies, (p. 725.)

2. Where the decree sought to be reversed is based upon depositions, which are so conflicting and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proven by them, the Appellate Court will decline to reverse the decree, though the testimony may be such, that it might have pronounced a different decree, if it had acted upon the case in the first instance, (p. 731.)

J. T. McGraw for appellant.

Martin &Woods for appellee.

Statement of the case by Green, Judge:

The bill in this ease filed at June rules, 1883, by John Doonan avers, that in the spring of 1873 he sold Patrick Glynn a certain lot in Grafton (No. 77) for a sum left blank in the bill; that a settlerhent of accounts was had between them about May 10, 1878, when Glynn was found indebted to him $250.00 on account of this purchase; and that on that day he executed to him a deed for this lot retaining a lien upon it on the face of the deed for the unpaid purchasemoney, $250.00, which has never been paid; and this bond is tiled with the bill. It is a simple bond payable in one day after its date, May 10, 1873, and is stated to be for value received in this lot (No. 77). The bill also states, that on January 11, 1882, said Glynn conveyed to LeonidasS. Johnson lot (No. 77) subject to the life-estate of Glynn; and the bill sought to have this lot sold to pay this unpaid purchase-money, that was reserved on the face of the deed as a vendor's lien, and asked, that Glynn, who had possession of this deed and had never recorded it, should be required to produce it.

The defendants in their answers admit the execution of this deed by the plaintiff" Doonan to Glynn and say the price of the lot was $300.00, but they deny, that any lien was retained to pay any part of the purchase-money, the whole of which had been paid off including this bond of $250.00 Fied with the plaintiff's bill in a few days after it was given, stating the mode of payment, and that on January 30, 1882, the plaintiff sued the defendants for this lot in an action of ejectment brought in the circuit court of Taylor, which suit resulted in a verdict and judgment for the defendants March 27, 1883; that the deed made to him was not re-produced because it is already in the plaintiff's hands, Glynn having placed it there for safe-keeping about July 18, 1883, and as it had not been recorded, the plaintiff fraudulently pretends, that a vendor's lien was retained on the face of the deed.

The plaintiff's deposition was taken on his own behalf. He testified, that he verbally sold said lot to Glynn in the spring of 1873 for $350.00, and about the same time he received from Glynn a note on George Avington for $300.00; and at same time Glynn being unable to do so himself contracted with him to improve this lot (No. 77) and furnish the means of so doing, stating that the house and lot would be good for the amount so expended. He accordingly built a house on the lot and made other improvements costing $160.00; that during the progress of this work and near its conclusion he had this settlement with Glynn, and it was ascertained Glynn owed him this $250.00, tor which Glynn gave him his bond; and at the same time the plaintiff delivered to Glynn a title-bond, which Glynn some time afterwards returned to him stating, he did not believe he could keep the property, as the officers of the law were after him for being engaged in some illegal traffic; that he had found this title-bond since the last term of the court and produced it.

The plaintiff's bill was dismissed with costs by a decree entered November 19, 1883. An appeal was taken by the plaintiff, Doonan, to this Court; and this Court being of opinion, that the case proven and that alleged differed so materially, that the plaintiff had no right to a decree in his favor, but inasmuch as the proofs showed, he had a cause of action of a similar nature to that alleged in his bill, and such as he might make available by a proper amendment of his bill, we adjudged, that the court ought not to have dismissed his bill without giving him an opportunity to amend it. The decree of the circuit court was therefore reversed, and the cause remanded to the circuit court of Taylor county with leave to the plaintiff to amend his bill, if he should ask to do so in a time deemed reasonable by the court, and tor further proceedings to be had. This decision was rendered by our Court on July 3, 1885, and is reported in 26 W. Va. 225. In this report a fuller and more perfect statement of the case, as then presented to our Court, may be found.

Upon the receipt of the mandate of our Court the circuit court of Taylor at its August term, 1885, remanded this cause to rules with leave to the plaintiff to amend his bill, and at the October rules, 1885, he did file his amended bill. In this amended bill he states his case, as it was proven by his deposition, the substance of which I have stated above, and he claims, that as shown by said title-bond there is due, unpaid and owing him of the purchase-money of said lot (No. 77) $235.00 with interest from May, 1873, which has been paid by neither of the defendants and no one for them; and he claims the right to enforce this as a lien on said lot and to have the lot sold to pay the same; and he prays lor a sale of this lot to pay this unpaid purchasemoney and for general relict. This amended bill was demurred to by the defendants Glynn and Johnson; their demurrer was overruled, and leave given them to file answers within sixty days.

Their answers were filed accordingly. They say the plain-tifi sold Glynn the lot for $350.00 in the spring of 1873, and he, Glynn, in full payment for it assigned a land-note for $400.00 executed to Glynn by one George Avington dated November 23, 1872, payable three years after date with interest from date. This was the balance due on the sale by Glynn to Avington of a tract of land in Upshur county, the full price of which was $800.00, and in the deed conveying this land to Avington a lien was on the face of it reserved to secure this unpaid purchase-money. They say that all of this land-note was collected by the plaintiff, Doonan and, as it was much more than sufficient to pay off the whole of the purchase-money due from him, Glynn, for this lot (No. 77), it was agreed, that the surplus should be applied by the plaintiff in making certain inprovements on said lot, and improvements were made by the plaintiff accordingly on this lot, which improvements cost less than $100.00 and were paid for by what the plaintiff collected of Avington on the bond, which Glynn bad assigned to the plaintiff after retaining $350.00 the price of this lot, and in cash paid to the plaintiff by Glynn. The title-bond filed with the plaintiffs amended bill obliging him to convey to Glynn lot No. 77 upon the payment of the entire purchase-money ($350.00) acknowledges the receipt of $115.00 thereof. This $100.00 the answers alleged was collected by the plaintiff of Avington on this assigned bond on May 10, 1873, six days before this title-bond was executed, and at the same time the said Glynn executed his note for $250.00 to the plaintiff, the balance of the pur.chase-money after crediting this $100.00 on the full price, $350.00. Subsequently the plaintiff having collected of Avington the whole of this bond, the said Glynn gave up to him this title-bond but neglected to surrender to him his said bond ot $250.00, and the plaintiff executed according to the terms of the title-bond a deed with general warranty of title of this lot (No. 77) the plaintiff having been paid in this manner the full purchase-money, $350.00, which was acknowledged on the face of the deed; that this is the way that the plaintiff got possession of this title-bond, which he makes the foundation for his amended bill pretending, that it was returned to him by Glynn with the understanding, that the contract for the sale was to be annulled by reason partly of the inability of Glynn to pay tor the lot and partly by reason of the fact, that Glynn had gotten into some trouble. This the answers allege is all false, and that he got possession of this bond by its being surrendered to him by said Glynn after he had been in this manner paid by collections from Avington not only the full price of the lot but also the full amount, that he had expended on it in building and improvements, and that when he took it up he executed the deed with general warranty of title to said Glynn acknowledging on its face the payment in full of the purchasemoney. But this deed not having been recorded, long afterwards, on or about duly 18, 1883, said Glynn placed it in the custody of the plaintiff for safe-keeping upon his promise to return it, whenever requested to do so by said Glynn; but he has kept it and falsely pretends sometimes, that it has been lost or is in possession of Glynn, as he did in his original bill claiming falsely that a vendor's lien was reserved on its face, and at other times, that no deed has ever been executed, but that this title-bond is the only paper ever executed to Glynn by the plaintiff, and that he got possession of it in the manner pretended in his amended bill; that Glynn took possession of this lot (No. 77) under this purchase in May, 1873, and did not for years learn, that the plaintiff either claimed to have title to it or any lien on it tor any unpaid purchase-money; but on January 30, 1882, the plaintiff commenced an action of ejectment against the defendants claiming this lot in fee...