Hagan v. Taylor

• Decision Date: 09 September 1909
• Parties: HAGAN. v. TAYLOR et al.
• Court: Virginia Supreme Court

65 S.E. 487

(110 Va. 9)

HAGAN.

v.TAYLOR et al.

Supreme Court of Appeals of Virginia.

Sept. 9, 1909.

1. Partition (§ 16^*)—When Maintainable.

Under the liberal provisions of Code 1904, § 2562, relating to partition, that plaintiff held the legal title to the entire property, while defendants, his tenants in common, held only the equitable title to two-thirds of it, was not ground for denying partition.

[Ed. Note.—For other cases, see Partition, Dec. Dig. § 16.*]

2. Specific Performance (§ 119*)—Burden of Proof.

In an action for specific performance, the burden of showing that he is entitled to relief rests primarily with plaintiff.

[Ed. Note.—For other cases, see Specific Performance, Cent. Dig. §§ 382, 383; Dec. Dig. §

3. Partition (§ 63*)—Burden of Proof.

Where, in a suit for partition based on undisputed facts, the affirmative issues presented by defendants' cross-bill involved the right to have the contract under which defendants held title rescinded, the burden of proof was on them.

[Ed. Note.—For other cases, see Partition, Dec. Dig. § 63.*]

4. Cancellation of Instruments (§ 34*)-Laohes.

A suit for rescission is addressed to the sound discretion of the court, and relief will not be granted to one who has been guilty of inexcusable laches.

[Ed. Note.—For other cases, see Cancellation, of Instruments, Cent. Dig. §§ 49-54; Dec. Dig. § 34.*]

5. Vendor and Purchaser (§ 119*))—Rescission—Laches.

Where vendees under a contract for the sale of land made no suggestion of the existence of any ground of rescission of the contract, and made no demand for such rescission, or for repayment of the price, until 18 years after the date of the contract, they were guilty of laches, disentitling them to relief.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent-Dig. §§212-214; Dec.Dig. §119.*]

Appeal from Circuit Court, Wise County.

Action by Patrick Hagan against S. N. Taylor and others. Decree for defendants, and plaintiff appeals. Reversed and remanded.

Bond & Bruce, for appellant.

Duncan & Kelly, for appellees.

WHITTLE, J. On April 30, 1890, the appellant, Patrick Hagan, executed a title bond to S. N. Taylor, C. F. Flanary, and George C. McElroy for the sale of lots 10, 11, 21, and 22, of block 17, and lot 1, of block 11, in the town of West Norton, Wise county, Va., "as run by A. Thompson, " at the price of $2,000, to be paid in 6 and 12 months, with interest, and when paid the vendor agreed to convey a good title to the vendees. The following indorsement appears on the contract:

"C. F. Flanary and Geo. C. McElroy have paid their proportion of the above purchase money on said lots. I am to deliver them a deed in which my wife shall join, and take Taylor's note for his part without a lien on the lots.

"Apr. 10, '91. Patrick Hagan."

Hagan subsequently repurchased the undivided interest of Taylor in the lots, and in 1908 he brought a suit in equity against Taylor and Flanary, and the administrator and widow and heirs at law of McElroy, who in the meantime had died, for partition of the property.

The bill was taken for confessed as to Flanary, and Taylor answered, admitting its allegations. The administrator, widow, and heirs at law of McElroy filed their demurrer and answer to the bill; the ground of demurrer being that the bill does not allege that Hagan conveyed the land to the purchasers and shows no such joint or common ownership between the parties as entitles him to call for partition.

The fact that the plaintiff had the legal title to the entire property, while the appellees held only the equitable title to two-thirds of it, constitutes no ground for denying partition, under the liberal provisions of section 2562 of the Code of 1904.

The general doctrine is stated in 30 Cyc. 195, as follows: "Co-tenants Holding an Equitable Title Only—A General Rule. At law the insuperable difficulty in granting a partition to the holder of an equitable title lies in the fact that courts of law, for most purposes, refuse to recognize or consider any but the legal title. In courts of chancery this difficulty does not exist, nor does it interpose any sufficient objection to the proceeding authorized by statute in most of the states. The true test for determining whether the holder of an equitable title may compel partition should, and we think does, depend on whether he has a present right of possession. If he has, he may maintain partition. A claimant, relying on an equitable title, should allege its true character, and not rely upon a purely legal interest."

Hagan held the legal title as trustee for the two-thirds undivided interest of his tenants in common; and a court of equity has plenary power under the statute to enforce that trust for their benefit.

The demurrer to the bill was rightly overruled.

The answer of the McElroys contains the affirmative allegation that after the execution of the title bond Hagan sold at least three of the lots included in his contract to other persons, who are now in possession and have erected houses thereon; moreover, that the A. Thompson plat was never recorded, and that Hagan has caused the land to be resurveyed and again laid off into lots, blocks, streets, and alleys, and that it is now impossible to identify the lots and for him to comply with his contract. The respondents allege payment of the purchase money, and conclude with the prayer that their answer may be treated as a cross-bill, that the contract be rescinded, and that Hagan be required to refund the purchase money, with interest.

It appears that Hagan was under the impression that he had already made the deed. Nevertheless, on the filing of the answer and cross-bill, he promptly tendered a prop er deed, conveying the property to the McElroys and Flanary, and filed it with his answer to the cross-bill. By his answer he makes specific denial of the facts alleged as grounds for rescission.

The depositions of witnesses were taken, and the circuit court passed the decree under review, rescinding the contract and directing that the purchase money be repaid, with interest.

We cannot concur in the contention of the appellees that the bill, though in form a bill for partition, is in fact a suit for specific performance in disguise. Hagan had sold to Flanary and McElroy an undivided two-thirds interest in the lots, and, having received the purchase money in full, nothing remained to consummate the transaction except a conveyance...