Kinports v. Rawson

• Decision Date: 02 April 1887
• Citation: 2 S.E. 85,29 W.Va. 487
• Parties: KINPORTS and others v. RAWSON.
• Court: West Virginia Supreme Court

2 S.E. 85

29 W.Va. 487

KINPORTS and others v. RAWSON.

Supreme Court of Appeals of West Virginia.

April 2, 1887

Submitted January 25, 1887.

Syllabus by the Court.

A court has no power to enter an order or decree in vacation, unless so authorized by statute.

Equity will enjoin the collection of purchase money on land, on the ground of defect of title, after the vendee has taken possession under conveyance from the vendor, with general warranty, if the title is questioned by a suit either prosecuted or threatened, or if the purchaser can show clearly that the title is defective.

By the words "if the title is questioned by a suit either prosecuted or threatened," is not meant that it is sufficient to allege in the bill that a "suit is threatened" merely, but the bill on its face must allege the grounds upon which the "threatened suit" is based, and which must be such as will put a reasonable man in just apprehension of the loss of his land.

The mere fact that some one has asserted a claim on the land, and that fact is generally known in the community where the land is situated, is insufficient to justify a court of equity in restraining a sale under a trust deed given to secure the purchase money on the land.

Appeal from circuit court, Greenbrier county.

R. S Turk, for appellant.

John W Harris, for appellee.

JOHNSON P.J.

This is an injunction from the circuit court of Greenbrier county. The plaintiff, Porter Kinports, and the St. Lawrence Boom & Manufacturing Company, on the twenty-seventh day of April 1886, filed their bill against William L. Rawson, A. C Snyder, trustee, Homer A. Holt, and Alexander F. Mathews. The bill alleges the purchase by Kinports from Rawson, on the twentieth day of August, 1881, of a tract of 1,632 acres of land, also of 800 acres, and an unexpired lease of 780 acres, with the right to remove timber from the last-mentioned tract. The contract of purchase is exhibited. The consideration for the land was $12,000, of which $3,000 was paid in cash, and three bonds executed for $3,000 each, payable to Rawson in one, two, and three years, respectively. That on the third day of October, 1881, Kinports conveyed the whole of said lands to A. C. Snyder, trustee, to secure the payment of said bonds. That the property was purchased by Kinports for his co-plaintiff; and said company has settled with him for the money to be paid on the land, and assumed the payment of the residue of the purchase money, and Kinports has conveyed the property to his co-plaintiff. That the last two purchase-money bonds remain unpaid, and the trustee, Snyder, has, under the trust, advertised said lands to be sold to pay the balance of said purchase money.

The plaintiff allege that "there is a serious cloud upon the title of at least said tract of 1,632 acres of land; and that, owing to this fact and the other facts herein stated, the sale of said property as advertised would inevitably result, as the plaintiffs believe and charge, in a great sacrifice of said property, and in irremediable and great damage to the plaintiffs;" that the said 1,632 acres of land constitute the most valuable part of the property by them purchased, and, more than $7,000 having been already paid, the plaintiffs have no means of protection against the loss which they will sustain if said sale be made, or if they should pay the debt, and lose the land by paramount title; that Rawson was not in the actual possession of the land at the time of the sale, and neither of said plaintiffs have been put or are now in the actual possession thereof, but they claim, and upon information allege, that, at the time of the purchase of said lands by said Rawson, and of the conveyance of the same to him, his vendors, and those under whom he claimed had held, under color of title, and under a grant from the commonwealth of Virginia, for more than 15 years preceding said purchase, actual, continuous, adversary possession of said land, and that said Rawson and the plaintiff, respectively, were invested, by the conveyance to them, respectively, with all the title to said land which had been acquired or was held by the grantor of said Rawson; "that the said Homer A. Holt and Alexander F. Mathews claim to own said tract of 1,632 acres of land in fee, under an older grant than that under which said Rawson and the plaintiffs claim, and have asserted their claim to the representative of the plaintiffs, and have threatened them with suit therefor, and there is now pending in the circuit court of said county of Pocahontas, as they are informed, believe, and charge, another suit, brought by the vendors of said Holt and Mathews, and which said Holt and Mathews are prosecuting, the object of which is to recover of one White a considerable body of land lying within the grant under which said Holt and Mathews claim said 1,632 acres of land; and said Holt and Mathews claim to have recently had surveyed the exterior boundaries of their said grant, and have included therein the said 1,632 acres, as well as the land claimed in said suit against said White, and have exhibited to the attorney of the plaintiffs what they claimed to be a plat of said survey, showing the above facts, and, if their paper title is sufficient to cover the land of said White, for which the suit aforesaid is now being prosecuted, as plaintiffs are informed, it would be sufficient to cover said 1,632 acres; " but whether, of course, said surveys are accurate, or said title of Holt and Mathews is a valid one, the plaintiffs do not know," but their conflicting claims are matters of wide notoriety in said county of Pocahontas and said county of Greenbrier where said lands are advertised to be sold, as aforesaid, and among those persons who, under other circumstances, would likely be bidding therefor; and a sale under such circumstances, would necessarily lead to a sacrifice of said 1,632 acres, and, as they believe and charge, of any and all of the lands mentioned in said trust deed that might be sold thereunder by said trustee. The bill further alleges that the lands were purchased for the timber, and they expected to get them all, and they would be greatly losers if any part of the lands were lost to them. They allege that it is the duty of a court of chancery to remove the cloud from the title, so that the lands would bring a fair price, and that until that is done a court of equity would enjoin the sale under the trust deed. The bill charges that Rawson has no property in this state, and but little anywhere else; that, if they were compelled to resort to a suit on the warranty, it is doubtful whether it would avail to protect them. The bill prays for an injunction of such sale until, by a decree in this cause, the said cloud shall be removed to the 1,632 acres of land, and that Holt and Mathews may be required to produce their title to said land, that the title thereto may be determined and quieted. The bill was sworn to.

The injunction was granted on the third day of July, 1885.

The defendant, Rawson, answered the bill, with which he exhibits a grant from the commonwealth of Virginia, issued on the third day of June, 1856, to May and Clark for the 1,632 acres of land, and a conveyance for the same by said May of his two-thirds undivided interest, executed on the tenth day of June, 1881, and from the executive of Clark for said Clark's undivided one-third interest in said land, dated on the twelfth day of September, 1881. In his answer he denies that he was not in possession of said land when he sold to Kinports, but avers that he had the actual and uninterrupted possession of said lands, and especially of said 1,632 acres, at the time he sold and conveyed them, and that he, and those under whom he claimed, had had such possession under good and sufficient title for over 20 years as he is informed and verily believes; that there were houses, inclosures, and improvements extending into it on tracts adjoining the 1,632 acres, belonging to Elijah May, one of the respondent's grantors, which said houses were occupied by said May's tenants, which facts were fully known to said Kinports' agents, and the possession of said May was open and notorious; and said Kinports was placed in actual possession thereof; and, if he has not remained so, the fault is not respondent's. He denies that Holt and Mathews have any valid and subsisting title to any part of said lands, nor have plaintiffs ever been approached by said Holt and Mathews, their agents or attorneys, with threats of suit, or asserting any claim whatever; nor is there any suit pending or other proceedings against respondents or the plaintiffs, in which this title is in any manner called in question by said Holt and Mathews, or any one else; nor has any notice to quit or any process been served on plaintiffs; nor did respondent ever hear of any question in regard to the title except through the plaintiff the St. Lawrence Boom & Manufacturing Company, its agents or attorneys. He knows nothing of any suit by the grantor of Holt and Mathews against one White pending in the circuit court of Pocahontas county, or the issue involved therein; nor does the bill enlighten him as to who the grantors of Holt and Mathews are. He claims that there were such conflicting claims to said lands as to cause them to sell at a sacrifice at the time advertised; but he avers that they have been greatly appreciated in value, and respondent would be willing, and has repeatedly offered, to refund to said Kinports his money paid if he would reconvey the lands. He denies the charge that he has no property in this state; says he has at least $2,000 worth of property in this state; at Covington, Virginia, $4,500 worth; at Richmond, where he resides, $2,000 worth; and at Newport News,...