Floyd v. Harding

• Decision Date: 19 April 1877
• Citation: 69 Va. 401
• Court: Virginia Supreme Court
• Parties: FLOYD, trustee v. HARDING & als.

69 Va. 401

FLOYD, trustee v. HARDING & als.

Supreme Court of Appeals of Virginia.

April 19, 1877

Absent Anderson and Burks, J's.^[a1]

In 1856 L sells land to T by parol contract, receives all the purchase money and puts T into possession. In January 1867 L executes a deed to T, by which he releases all the land to T and warrants the title. T then sells the land to W, and W conveys to F. In March 1866 B recovers a judgment against L which is docketed within the year. In a suit against F to subject the land to satisfy the judgment against L--HELD:

1. That the registry acts do not apply to a parol contract for land and T having paid all the purchase money, and having been pet into possession, so that he had a valid equitable title to the land, it is not subject to the lien of the judgment against L.

2. The valid equitable title of T is not so merged in the legal title acquired by the deed of L to him, as to subject the land to the lien of the judgment against L.

3. The principles of the case of Withers v. Carter, 4 Gratt. 407, approved.

This was a bill filed in the circuit court of Bedford county, by John B. Harding, to subject a certain tract of land in the possession of N. B. Floyd, as trustee of his wife Ellen S Floyd, to a judgment which had been recovered by Green B. Board against J. M. W. Leftwich, the plaintiff, and two others, on a negotiable note, in which said Leftwich was maker, and the plaintiff and the others were endorsers; and which the plaintiff had satisfied. This judgment was recovered on the 30th March 1866, and was docketed March 16th, 1867.

Floyd answered the bill. And it was proved that as early as 1856 J. M. W. Leftwich, by an unwritten parol contract, sold this land to Lewis H. Turnbull, who paid the whole purchase money, and was put into possession. By deed of the 23d of January 1867, which was admitted to record on March 13th 1867, Leftwich and wife released to Turnbull all their claim upon the land, and warranted the title. Turnbull in June of the same year, sold to John W. Howard; and subsequently under a decree of the court in the case Howard v. Howard, the land was sold and conveyed to N. B. Floyd in trust for his wife Ellen S. Floyd.

The cause came on to be heard on the 7th of October 1872, when the court held that the judgment was a valid lien upon the tract of land conveyed by Leftwich and wife to Turnbull, by their deed of the 23d of January 1867, and now in the possession of Floyd; and decreed that unless the defendants, & c., did within ninety days, pay to the plaintiff the amount of his judgment and the costs of this suit, commissioners named should sell, & c.

From this decree Floyd applied to this court for an appeal; which was allowed.

John W. Daniel, and Haymond, for the appellant.

R. G. H. Kean, for the appellees.

STAPLES J.

There is no controversy in this case in regard to the facts. They are few and simple, and may be briefly stated. In the year 1856 James W. Leftwich sold to Lewis H. Turnbull a tract of land in Bedford county. The contract was not reduced to writing; but Turnbull was placed in immediate possession, and the whole of the purchase money was paid by him. In January 1867 Leftwich executed to Turnbull a deed of release for the land, with warranty of title. Turnbull shortly afterwards sold and conveyed to Howard, and Howard subsequently in 1868, conveyed to Floyd the appellant. In 1866 a judgment was recovered by Board against Leftwich, the original vendor, in the circuit court of Roanoke, which was duly docketed in the county court of Bedford. The claim here is to subject this land in the hands of Floyd, to the lien of this judgment. The question presented is, whether a parol contract for the sale of land so far executed as to vest in the purchaser a valid equitable title, is good against creditors of the vendor, under the statutes of registration. This question is now exciting no ordinary interest throughout the state. It is understood that numerous cases are pending in the circuit courts, involving a large amount of property, awaiting the decision here. The court has given the subject that consideration its gravity and importance demand.

In the outset it may be well to advert briefly to the case of Withers v. Carter & als., 4 Gratt. 407. No sound conclusion can be arrived at in this case without a proper understanding of the facts and principles of law involved in that case. There the parties had reduced their contract to writing, and the purchaser was put in possession of the property. Subsequently a deed was executed by the grantor; but it was never recorded, having been lost by the person to whom it was committed to be delivered to the clerk.

At that time the statute required the recordation of deeds, but not of written executory contracts for the sale of land. The court of appeals held that while the effect of the statute was to render the unrecorded deed quoad the creditors of the grantor, a mere nullity, it left the subject precisely in the same situation as if no deed had been made or attempted. Judge Baldwin, in delivering the opinion of the court said, " It could not be doubted, a fair purchaser of the equitable estate has a right to hold it against creditors of the vendor who have not previously recovered judgments." This decision was rendered at the January term 1848. At the revisal of 1849 an amendment was incorporated in the statute. It is contained in sections 4 and 5, chap. 118, Code of 1849, and is as follows:

" 4. Any contract in writing made in respect to real estate, or goods and chattels, in consideration of marriage, or made for the conveyance or sale of real estate, or a term therein of more than five years, shall, from the time it is duly admitted to record, be as against creditors and purchasers as valid as if the contract was a deed conveying the estate or interest embraced in the contract."

" 5. Every such contract, every deed conveying any such estate or term, and every deed of gift, or deed of trust or mortgage, conveying real estate or goods and chattels, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time it is duly admitted to record in the county or corporation wherein the property embraced in such contract or deed may be."

These provisions, as will be seen, do not expressly, or even by any fair implication, include all contracts for the sale of land. They apply only to contracts in writing. Having provided for the recordation of written contracts in the fourth section, the framers of the statute by the use of the words, " such contracts" in the fifth, evinced a deliberate purpose to confine the operation of that section to contracts in writing. It is obvious that the language was carefully chosen, and the omission to require the recordation of EVERY contract was not accidental. In order to give the statute the construction now contended for, we must strike out, or wholly disregard the words " in writing," in the one section, or the word " such" in the other. Are we authorized by any rule of interpretation to take such a liberty with a legislative enactment plain and explicit in its terms.

While in the construction of statutes the constant endeavor of the courts is, to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed. The authorities in support of this principal are almost innumerable. It is unnecessary to cite them, as they may be found in Dwarris on Statutes, 181-4, 209; 2, 204-5, 208.

In this connexion I cannot forbear quoting briefly a portion of the opinion of the supreme court of the United States in the case of Denn v. Reid, 10 Peters R. 524. The case turned upon the proper construction to be given to certain recording acts of North Carolina and Tennessee. Mr. Justice McLean, after giving his construction of the statute said: " This, it must be admitted, when we consider the mischief the law was probably intended to remedy, is a somewhat technical construction of the act; and cases may be found where courts have construed a statute most liberally to effectuate the remedy: but where the language of the act is explicit, there is great danger in departing from the words used, to give an effect to the law which may be supposed to have been designed by the legislature. * * * It is not for the court to say, where the language of the statute is clear, that it shall be so construed as to embrace all cases, because no good reason can be assigned why they were excluded from its provisions."

If the rule of construction here laid down be correct, there would seem to be an end of the question. But if we are permitted to go outside of the express language of the statute in pursuit of the supposed intention of the legislature, have we such satisfactory and conclusive evidence of that intention here, as to justify the courts in giving to the statute an interpretation so palpably in conflict with its language.

In answering this question it is important to bear in mind the rules of law in respect to parol contracts for the sale of land. Courts of equity treat such contracts, where there is part performance, as valid and effectual as those evidenced by the most solemn instruments of writing. In order to prevent the possibility of fraud in engrafting this exception upon the statute of frauds, it is settled, that the parol agreement relied on must be certain and definite in its terms: the acts proved in part...