Gibson v. Stalnaker

• Decision Date: 15 February 1921
• Docket Number: (No. 4075.)
• Parties: GIBSON. v. STALNAKER.
• Court: West Virginia Supreme Court

106 S.E. 243

GIBSON.

v.STALNAKER.

(No. 4075.)

Supreme Court of Appeals of West Virginia.

Feb. 15, 1921.

Rehearing Denied March 29, 1921.)

(Syllabus by the Court.)

Appeal from Circuit Court, Randolph County.

Suit by John Alexander Gibson against French Stalnaker for an injunction. From a decree dissolving an injunction, plaintiff appeals. Reversed, injunction reinstated and perpetuated, and cause remanded.

W. B. & E. L. Maxwell, of Elkins, for appellant.

A. M. Cunningham, of Parsons, for appellee.

LYNCH, J. Complaining of a decree dissolving an injunction, theretofore awarded, restraining defendant from cutting certain timber on plaintiff's lands, the latter seeks reversal of that order and reinstatement of the iujunction. On May 24, 1918, plaintiff, John Alexander Gibson, by deed purchased from Virginia S. Gibson and her husband, John Alonzo Gibson, a tract of land containing about 220 acres, known as the Varner place, the right to the timber on said tract being the question now in dispute. About a quarter of a mile distant from the Varner tract, and separated from it by a 400-acre farm, ownership of which is not disclosed by the record, is a second parcel known as the Parsons place, also owned by the grantors. Defendant, Stalnaker, the son-in-law of Virginia S. and John Alonzo Gibson claims to have purchased from them, by verbal contract, during the fall of 1916, all the timber on both tracts of land, for which he agreed to pay $1,500 in cash and in addition to cut therefrom and furnish to his grantors from 12, 000 to 15, 000 feet of lumber for their own use, they to pay some of the expenses connected with the latter. Stalnaker and his wife had formerly resided on the Varner tract, but about a year prior to entering into the alleged agreement they had moved onto the Parsons place, where he was engaged in cutting and logging lumber for his father-in-law. It was while they were living on the latter tract that the verbal agreement of sale was entered into. Shortly thereafter defendant commenced cutting the timber on the Varner tract, and in the spring of 1917 they moved back into the house which they had formerly occupied on that tract. The cutting and logging continued thereafter without serious interruption, and was in progress in May, 1918, when plaintiff purchased the tract.

The deed from the Gibsons to him makes no reference to the prior oral sale of the timber thereon to defendant, but it is admitted by plaintiff and established by abundant testimony that his grantors informed him thereof at the time of or prior to the date of his purchase. He claims, however, that they assured him the agreement of sale expressly excluded the locust timber on the tract which is sufficient to furnish posts to be used in fencing the land, and for which purpose plaintiff now desires to use it. The Gibsons support him in this statement, but defendant and several witnesses introducedby him testify that it included all the timber on both tracts, irrespective of kind or quality.

Defendant continued to remove the timber from the Varner tract until August, 1918, when, owing to an extremely dry summer and the resulting inability to obtain water to run his mill, he removed his plant from that tract to another, where operating conditions were more favorable. Before leaving, however, he notified plaintiff of his intention to return and complete the removal of the timber on that tract when conditions should improve.

Up to this time defendant had not cut any of the locust timber on either parcel, a fact tending to support plaintiff's construction and understanding of the oral agreement, and, indeed, not until receipt of a letter dated November 11, 1918, did plaintiff know that Stalnaker was asserting any claim to it. The following spring when defendant was about to return to the Varner tract to cut what little timber remained, plaintiff filed a bill in equity, praying that an injunction should issue to restrain him from cutting and removing any of the locust trees, but expressing a willingness that he should remove all other kinds, upon the giving of a bond conditioned to protect plaintiff against injuries to his farm and stock resulting from defendant's operations. A preliminary injunction was awarded by the court, but later was dissolved upon final hearing of the cause.

We deem it unnecessary to review the conflicting testimony with regard to the inclusion of the locust timber within the terms of the oral sale to Stalnaker, for under either construction the agreement is unenforceable. Growing trees are part of the realty on which they stand, and a sale of them must be in writing under the sixth clause of the statute of frauds, found in chapter 98 of the Code. Fluharty v. Mills, 49 W. Va. 446, 38 S. E. 521; Brown v. Gray, 68 W. Va. 555, 70 S. E. 276, 2 Page on Contracts, § 1276. There is no dispute as to this principle of law, but defendant contends that there has been such performance of the oral agreement as to remove it from the terms of the statute. The consideration promised by him has been almost, if not wholly, paid. He was permitted to enter into possession of the Varner tract, and in reliance upon the agreement constructed a mill and proceeded to cut the timber. Down to the date of cessation of work in August, 1918, he had removed about 500, 000 feet of timber from the tract, leaving thereon yet to be cut from 50, 000 to 75, 000 feet, other than locust.

The statute of frauds was founded in wisdom and sound policy. It main purpose was to prevent the setting up of pretended agreements and supporting them by perjured testimony. The importance of recording in writ ten form contracts affecting real estate and interests therein, as well as those relating to other forms of property, is emphasized by the frequency with which valuable rights of that character are lost as a result of misunderstanding, uncertainty, mistake, and unprincipled and vicious conduct, when the only evidence available to establish and support such rights consists of oral testimony. The wisdom of any departure or deviation from the strict rule expressed by the statute has frequently been questioned, but courts of equity, nevertheless at times depart therefrom in attempts to do justice between litigants, in order that a law designed to prevent fraud shall not itself become an instrument of fraud. Wright v. Pucket, 22 Grat. (Va.) 370.

The first and most essential prerequisite justifying and warranting such deviation is that the terms of the alleged agreement be clearly proven. Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297; Smith v. Peterson, 71 W. Va. 364, 76 S. E. 804. The right sought to be enforced or safeguarded must be clear and certain. Meadows v. Meadows, 60 W. Va. 34, 53 S. E. 718. Such is not the state of the testimony with regard to the locust timber on the Varner tract. The conflict is irreconcilable, and it is difficult to say that a preponderance favors either contention, though it must be recognized that the failure of defendant to cut any locust timber during the entire period he was engaged at work on the tract tends...