Heavner v. Morgan et at.
| Citation | 41 W.Va. 428 |
| Court | West Virginia Supreme Court |
| Decision Date | 04 December 1895 |
| Parties | Heavner v. Morgan et at. |
1. Failure of Consideration Purchase-Money Note Insol. vent Vendor.
Where a party, by his title bond, covenants to sell a tract of land with general warranty, describing it as containing a certain number of acres, and the vendee executes to him his bonds for the purchase money, one of which is assigned to a third party? and it is subsequently ascertained that there is a material de~ ficiency in the quantity of the land, and it further appears that the vendor is insolvent, a court of equity will not require suth vendee to complete his purchase by paying his said single bilb and to rely upon the hazard of recovering the money so paid from his insolvent vendor.
2, Adverse Possession.
Possession, in order to be adverse, must be (1) hostile or adverse; (2) actual; (3) visible, notorious, and exclusive; (4) continuous; (5) under claim or color of title.
3. Adverse Possession Inclosures Color of Title.
Where a party goes beyond the limits of the land described in his deed, and claims to hold the same advers-ly, unless he does so under color or claim of title he is limited to his inelosures.
4. Promissory Note Declarations of Maker Preponderance of Testimony.
Where a party became the purchaser of a single bill, and claims that before purchasing the same, he informed the maker of his intention, and such maker replied it was all right, and that he would as soon pay him as the original payee, which is denied by the maker, such claim must be sustained by a preponderance of testimony to constitute an estoppel.
C. C. Higginbotham for appellant, cited 3 Call, 239; 4 II & M. 125; 30 W. Va. 335; 2 Minor, 509; 1 Gratt. 165, 223; 11 Gratt, 427, 587; 22 Gratt, 392; C. R. 229; 7 Rob. Pr. 446-59.
A. M. Pouxdstone for appellees, cited 5 Leigh, 606; 5 W. Va. 285; 14 W. Ya. 238; 7 Gratt. 399; 3 Leigh, 161; 18 Gratt, 660; 24 W. Va. 214, 524; 3 Rand. 44; 21 YY. Va. 326.
This was a suit in equity, instituted by Elias Heavner against the defendants, Morgan Morgan et at., in the Circuit Court of Upshur county, which had for its object the collection of a certain single bill which was executed by the defendant Morgan Morgan to W. G. L. Tot ten, for the sum of three hundred and twenty five dollars, dated the 14th day of October, 1874, and payable two years after date, with interest from date, which single bill was on the 14th day of October, 1875, assigned, for value received to said Elias Heavner. The plaintiff, in his bill, prayed for a specific performance of the contract, and that the land might be sold to satisfy said single bill.
The defendant Morgan answered, exhibiting the title bond executed to him by said Totten, in which he covenanted, for the consideration therein mentioned, to convey the tract of land therein described, containing two hundred and three acres, to said Morgan, with covenants of general warranty. He alleges that all of the bonds executed by him to said Totten for said tract of land have been paid off and discharged, with the exception of said three hundred and twenty five dollar bond, assigned to plaintiff by said Totten; that there was a deficiency in the quantity of said tract of land; that the sale to him was a sale by the acre, and that such deficiency would amount to thirty five acres and one hundred ami twelve poles; that he has already paid and overpaid for the true quantity of the land sold to him by said Totten, and is entitled to recover the surplus from him, and have said bond for three hundred and twenty five dollars canceled; that something over a year after his said purchase from said Totten, he learned that there were not two hundred and three acres of land in said tract; that part of said land was owned by James Ross, and part by Mrs. Ely, and, as soon as he learned this fact, he so informed said Totten. At first said Totten claimed that lie owned all the land he had sold to said defendant, but afterwards he admitted that Mrs. Ely and James Ross would hold those parts claimed by them, which had been embraced in said contract, and said Totten made an effort to purchase said parts from said Ross and I). 1). T. Farnsworth, agent of Mrs. Ely, but failed to do so.
On the 18th day of February, 1882, the cause was referred to a commissioner, to ascertain what amount of purchase money had been paid on the land in the bill mentioned, and to whom, and to ascertain and report whether the deed filed with the bill embraces land not owned by the defendant W. G. L. Totten at the time of bis sale to the defendant Morgan Morgan, the true quantity of the land owned by said Totten in the tract sold by him to Morgan Morgan in the bill mentioned, and ascertain the true metes and bounds thereof, empowering said commissioner to do the necessary surveying, etc.
^Numerous depositions were taken before said commissioner in behalf of the plaintiff and defendant. Surveying was done, and a plat and a report returned. Said commissioner found that said Morgan Morgan paid to the said Totten all of the purchase money for said land except the three hundred and twenty five dollars, to enforce the payment of Avhich this suit was brought. Said commissioner also found that the deed filed with plaintiff's bill does not em brace land not owned by the defendant W. G. L. Totten at the time of his sale to the defendant Morgan Morgan; that the true quantity of the land owned by said Totten, and sold by him to Morgan Morgan, in the bill mentioned, is two hundred and seventeen and one half acres, estimated by surface measurement, or two hundred and four and one half acres if estimated by horizontal measurement, and the plat of the surveyor is returned with said report, which the commissioner finds to be the bounds of the tract sold by said Totten to Morgan Morgan.
The defendant Morgan excepted to said commissioner's report so far as it found that the deed filed with plaintiff's bill does not embrace any land not owned by the defendant Totten at the time of his sale to the said Morgan, and so far as it found the quantity of the land sold and conveyed by Totten to him to be two hundred and seventeen and one half acres.
Other depositions were taken in the cause, and on the 14th day of February, 1885, the cause was heard, and a decree rendered, sustaining the exceptions to the commissioner's report filed by said Morgan thereto, and dismissing the plaintiff's bill, with costs, and directed that said Totten should convey said land to said Morgan Morgan conforming to and following the lines represented of Watson Westfall.
From this decree an appeal was taken to this Court, which on the 12th day of November, 1887, resulted in reversing said decree, with costs, and remanding the case, with leave to amend his bill. See 30 W. Va. 335 (4 8. E. 406).
The death of Elias Heavner having been suggested, the cause was revived in the name of Jacob W. Heavner, his executor; and the said executor filed an amended bill against Morgan Morgan, W. G. L. Totten, James Ross, Anderson Shingleton, and Fannie H. Ely, in which he commences at the original patent for thirty thousand acres of land issued on the 25th day of June, 1794, to John Davenport and others, which land is alleged to have been located in Harrison county, but now in the county of Upshur, and, tracing the title down to the present owners. alleges: That in the year 1818 said tract of land was transferred from the land hooks of Harrison county to the land hooks of Lewis county, in the name of John Davenport & Co., that being the county in which said land was then located. That the sheriff of Lewis county returned said tract of land as delinquent for the non-payment of the taxes thereon for the years 1818 to 1833, inclusive. That on the 27th day of September, 1837, the Circuit Superior Court of Law and Chancery for Lewis county made an order by which it appointed Minter Bailey commissioner of forfeited and delinquent lands for Lewis county., That on the 20th of May, 1840, said commissioner made to said court a report of said tract of land as forfeited, and on the same day said court made an order by which it directed the said commissioner to sell said tract; and afterwards, on the 26th day of June, 1840, the judge of said court, in vacation, made another order, directing said commissioner, he being the surveyor of lands for said county, to send Robert Ervin, his deputy, on said tract of land to survey and locate the same. That, in pursuance of said order, said deputy surveyor went on said tract of land and divided the same into thirty lots, numbered from 1 to 30, inclusive, principally by protraction; but he actually ran and marked some of the interior lines, and reported the same to the court with two fair plats, all of which lots appear to have been laid off rectangular in shape, by parallel lines, with the exception of those numbered from 1 to 6, inclusive. On the second Tuesday in August, 1840, said commissioner sold said thirty lots at the front door of the court-house of said county at public auction, at which sale the said Robert Ervin became the purchaser of lots 10, 11, 13, 14, 23, and 24, which sale was afterwards confirmed by the court. On the 10th day of December, said Minter Bailey, as commissioner, conveyed lots 10, 11^ 13, 14, 23, and 24 to Robert Ervin, John Mc Whorter, and Alexander S Withers; and on the 20th day of August, 1851, said Robert Ervin and wife conveyed their undivided third of said six lots to John McWhorter. That, some time in the year 1851, said John McWhorter and Alexander S. Withers conveyed said lot number 14 to Leonard Crites, first by deed conforming to the original plat, which said Crites refused to receive, and afterwards said McWhorter and Withers conveyed said lot No. 14 to said Leonard Crites by deed without metes and bounds. That all of said six lots adjoin each other, and the said McWhorter and Withers were the owners of all...
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