Harr v. Shaffer

• Citation: 52 W. Va. 207,43 S.E. 89
• Parties: HARR. v. SHAFFER et al.
• Decision Date: 14 January 1903
• Court: Supreme Court of West Virginia

43 S.E. 89

52 W. Va. 207

HARR.

v.SHAFFER et al.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1903.

ACTION ON COVENANT—EVICTION—GENERAL WARRANTY—OUSTER—CONVEYANCE TO WIFE—EVIDENCE.

1. Judicial eviction from land is not indispensable to a recovery upon a general warranty. Actual or constructive ouster will suffice.

2. Where there is a conveyance with general warranty, and the land is at the time under a prior deed of trust given by the grantor, under which the land is sold away from the covenantee in possession, who then quits possession, such sale under the paramount claim is a breach of such warranty.

3. A wife acquiring land must, in a suit by creditors to charge it with her husband's debts, not merely prove that she paid for it, but must clearly prove that she paid for it with her separate estate; else the presumption is that the means paying tor it came from her husband.

(Syllabus by the Court.)

Appeal from circuit court, Tucker county, John Homer Holt, Judge.

Bill by Seymour Z. Harr against S. H. Shaffer and others. Decree for defendants, and plaintiff appeals. Reversed.

Lloyd Hansford, for appellant.

A. B. Parsons and J. P. Scott, for appellees.

BRANNON, J. By a deed of general warranty, October 2, 1889, S. H. Shaffer and wife conveyed to Seymour Z. Harr a tract of 312 1/2acres of land in Tucker county. This and other tracts were once owned by Harness, and he conveyed this tract to Randolph, as trustee to secure some parties as sureties for Harness in a bond to Harper, October 19, 1882. A chancery suit was brought by Auvil against Harness to sell the lands of Harness to pay debts, in which suit some of the lands of Harness were sold; he becoming the purchaser, and giving some notes for the purchase money, with Shaffer as his surety. Harper was not a party, nor were the sureties secured in the deed of trust to Randolph. Harper's debt was decreed, but as he was not before the court, and the tract of 312 1/2 acres was in the deed of trust operating to secure his debt, that tract was not decreed to sale, was not sold, and the right was reserved to the securities in the Harper debt to enforce their deed of trust against that tract. Harness failed to pay the purchase money, and Parsons, the commissioner who made the sale in the Auvil case, brought a suit to resell the lands for the purchase money, and they were resold and bought by Shaffer. By deed of trust dated September 4, 1885, Harness conveyed several tracts (this tract of 312 1/2 acres perhaps being one of them) to Parsons as trustee to secure Shaffer in the said notes given by Harness to Parsons, commissioner, under said sale made by Parsons in the Auvil case. Dailey was substituted as trustee in place of Randolph in the deed of trust from Harness to Randolph, and he sold the tract of 312% acres under that deed of trust to Chip-ley and Shearer, and conveyed to them. In a chancery suit of Crossland against S. H. Shaffer, Cunningham, commissioner, sold three tracts, of 39 7/8, 56, and 5 acres; Mrs. Shaffer, wife of S. H. Shaffer, becoming purchaser. These lands were the property of Shaffer. Shaffer had a survey made of a boundary of 125 acres, which included said three tracts, and also some other land belonging to him, took the survey to Cunningham, and had him to insert the metes and bounds of that survey in the deed which Cunningham, as commissioner, made to Mrs. Shaffer. Harr brought a chancery suit in Tucker county against Shaffer; setting up the conveyance by Shaffer to him of the 312% acres; the deed of trust given by Harness to Randolph, trustee, for the Harper debt; the sale of the 312 1/2 acres under it; seeking to establish and quiet his title derived from Shaffer over the right under the sale by Dailey, trustee, and, In default of that relief, then to compel Shaffer to convey to Harr other lands in place of the 312% acres; and, in default of that relief, asking a personal decree against Shaffer for damages for the breach of the warranty contained in the deed from Shaffer to Harr. The circuit court dismissed Harr's bill, reserving right to him to bring any other suit against Shaffer for his rights mentioned in that suit, and on appeal to this court that decree was affirmed. 45 W. Va. 709, 31 S. E. 905. Later, Harr brought the chancery suit we now have in hand, in Tucker circuit court, for the purpose of recovering from Shaffer for breach of warranty in the deed to Harr from Shaffer and wife; charging that in the purchase of said three small tracts at the judicial sale made by Cunningham to Mrs. Shaffer, her husband was the real purchaser, and paid the purchase money, and that she had nothing to pay with, and that the purchase in her name was with intent to defraud him out of his debt, and that Shaffer procured the conveyance of the boundary of land by Commissioner Cunningham to his wife with that intent. The court dismissed Harr's bill, and he appeals.

It Is apparent that the deed from Shaffer and wife to Harr, as it was subsequent to the Harper deed of trust, conferred no title on Harr. Harness gave that deed of trust to secure the sureties in the bond to Harper before the deed of trust from Harness to secure Shaffer as surety in the debt of Harness to Parsons, commissioner, if that is, as it seems, the shadow of title claimed by Shaffer for the 312%-acre tract conveyed by Shaffer to Harness, though it does not appear that in fact there ever was a sale and conveyance of it under that deed of trust Shaffer, without a sale and conveyance, would be only a creditor, which would confer no right to convey; and, if he had a conveyance from the trustee, it would pass no right as against the sale by Wood Dailey, trustee, under the older deed of trust for the Harper debt. And Shaffer got no right under the judicial sale by Parsons, commissioner, under the decree in the case of Parsons, commissioner, against Harness, because that tract was not sold under the decree in the case of Auvil against Harness, and not resold in the case of Parsons, commissioner, against Harness; nor was it conveyed to Shaffer by Parsons under the sale. Harr thus got no title by his deed; but after the sale by trustee, Dailey, Harr did not wait to be sued for possession, but voluntarily yielded possession, or, in his language, "I dispossessed myself. I just quit." The question then comes whether, without eviction or even demand by the hostile claimant, Harr can recover on the warranty. The old cases, and some late ones, demand eviction by judicial process; but later cases say that ouster, without judicial eviction,...