Litterall v. Jackson

• Decision Date: 25 June 1885
• Citation: 80 Va. 604
• Court: Virginia Supreme Court
• Parties: LITTERALL v. JACKSON & ALS.

80 Va. 604

LITTERALL v. JACKSON & ALS.

Supreme Court of Appeals of Virginia.

June 25, 1885

Appeal from decree of circuit court of Wythe county, entered 11th December, 1883, in a cause wherein George W. Litterall, the appellant here, was complainant, and George W. Jackson and als. were defendants.

Opinion states the case.

Robert Crockett, for the appellant.

James A. Walker, William Terry and Jos. W Caldwell, for the appellees.

OPINION

RICHARDSON J.

This is a triangular contest in respect to the ownership of the land in controversy, it being so much of the 2058-acre survey granted by the commonwealth to D. B. Saunders, on the 1st day of February, 1851, as is east of the " Low-Gap" road in the county of Carroll. All of said 2058-acre survey is embraced within an older, larger survey, known as the Ruston survey, containing 240,000 acres, and, at the time of the grant for said 2058 acres, owned by the Wythe Union Lead Mines Company.

At the time of the emanation of the grant to D. B. Saunders for said 2058 acres, the Lead Mines Company had been and was engaged in serious litigation involving their title to said Ruston survey, and said company threatened to commence litigation with D. B. Saunders in respect to said 2058 acres. But, to prevent vexatious and expensive litigation, the Lead Mines Company entered into an agreement with said D. B. Saunders that in the event said company should, in the then pending litigation, establish their title to said " Ruston survey," then the said company should relinquish to said Saunders the said 2058 acres, embraced in said " Ruston survey," for the stipulated sum of $340, to be paid by said Saunders to said company. Said company did establish its title to said " " Ruston survey," but D. B. Saunders died without having carried the agreement in respect to said 2058 acres into effect.

D. B. Saunders died intestate, leaving a widow and two children, to wit: Martha A., intermarried with S. G. Saunders, and Mary, who intermarried with E. T. Osborne; and said S. G. Saunders administered upon the estate of the decedent. After his qualification as administrator, S. G. Saunders, being advised of the understanding and agreement between the Lead Mines Company and his intestate (the said company agreeing to and acquiescing therein), executed his individual bond, with E. T. Osborne as surety, to said Lead Mines Company, or its authorized agents, for the sum of $340; which bond was dated the 11th day of June, 1866, and was made payable one day after date, with interest. It is conceded that the only object in giving this bond was to complete the contract or agreement between said Lead Mines Company and D. B. Saunders, in the lifetime of the latter, and thus to secure to the heirs at law and distributees of said D. B. Saunders a clear and undisputed title to said 2058 acres granted as aforesaid to said Saunders, but included in the long prior " Ruston survey" owned by said Lead Mines Company.

On the same day on which S. G. Saunders completed said contract of his intestate as to said 2058 acres, said Lead Mines Company, by its attorney in fact, Joseph J. Graham, conveyed said 2058-acre survey to Martha A. Saunders and Mary S. Osborne, the heirs at law of said D. B. Saunders, the deed reserving a lien for the purchase money.

On the 25th day of April, 1866, after the appointment and qualification as administrator of D. B. Saunders, but before his completion of the said contract with the Lead Mines Company, S. G. Saunders, as administrator of D. B. Saunders, executed and delivered to Lewis Litterall, Jr., the following paper:

" I have, as administrator of D. B. Saunders, deceased, this day bargained and sold to said Lewis Litterall, Jr., all that part of a tract of land belonging to the said D. B. Saunders, now occupied by Robert Porter, in Carroll county, and lying east of the Low-Gap road, for the gross sum of one hundred dollars; thirty dollars paid down, and the balance when a deed is made. The said Litterall accepts Robert Porter as his tenant. Said Litterall is to pay taxes on the land from this date. Also a quantity of land lying west of the Low-Gap, and on the Yellow branch, between Loyd James and Lewis' land, at fifty cents per acre. Said Litterall is to as much as 200 acres at that price; but said Litterall has this day paid ten dollars on , and is to have until 25th December, 1866, to determine how will takes it, which time he will pay for what the takes. Witness my hand and 25th day of April, 1866."

This paper was signed by S. G. Saunders as administrator.

For the specific execution of this contract, the appellant, Geo. W. Litterall, filed his bill in the circuit court of Carroll county in June, 1881. Whether said contract is a proper one for specific execution by a court of equity, is the first question to be determined by this court. But, before entering upon that enquiry, it is necessary to call attention (1) to how the appellant claims the right to enforce this contract in his favor; and (2) to the chancery suit of Saunders v. Saunders, commenced in the county court of Wythe county, in 1870, and finally moved to and determined in the circuit court of said county.

First, then, as to the claim of the appellant, Geo. W. Litterall. Lewis Litterall, Jr., with whom said Saunders as adminisistrator made said contract, or rather the paper purporting to be a contract, after taking and holding possession thereunder, of the land in controversy, and holding same for a considerable time, removed to one of the western states, where, in the year , he died intestate, unmarried and childless; and whatever claim he had, passed by inheritance to his father, Lewis Litterall, Sr., who lived in the neighborhood of this land, in the county of Carroll. Lewis Litterall, Sr., in 1873, in professed obedience to a request to that end made by Lewis Litterall, Jr., before he left Virginia, conveyed the land to his son, Clark Litterall, who, by deed of date May 12th, 1876, for the consideration therein named, conveyed the same to the appellant, Geo. W. Litterall, who claims the right to have the same specifically executed. Prior to the conveyance from Lewis Litterall, Sr., to Clark Litterall, and from the latter to the appellant, to-wit, on the 18th day of May, 1870, said S. G. Saunders and Martha A., his wife, who was one of the heirs at law of D. B. Saunders, filed their bill in the county court of Wythe county, against Jane Saunders, the widow of D. B. Saunders, and E. T. Osborne and Mary, his wife, the latter being the other child and heir at law of D. B. Saunders. The bill set forth the death of D. B. Saunders, and the administration upon his estate by said S. G. Saunders; and alleged that the personal estate of the deceased was inadequate to discharge the indebtedness of the estate; that the intestate died seized and possessed of several tracts or parcels of land, among them the said tract of 2058 acres; that it would be necessary to sell the land and pay the debts in order to a just and fair distribution of any residuum between the heirs at law and distributees; and that the widow and all parties in interest acquiesced in the object of the suit as set forth in the bill. And the bill in furtherance of the objects in view, asked for a settlement of the administration accounts of said S. G. Saunders.

Jane Saunders, the widow, and E. T. Osborne and Mary, his wife jointly and separately answered the bill, admitting as true the statements therein contained, and the necessity of the sale of the lands for the payment of debts and for a fair distribution of the residue. Such proceedings were had in this suit of Saunders v. Saunders, that on the 17th day of March, 1870, a decree was entered therein, among other things, enumerating the several tracts of land of which D. B. Saunders died seized, declaring the necessity of a sale of the several tracts of land, (among them the 2058 acres), and directing its special commissioner, Wm. Terry, to make sale of all of said lands and to report to court. There is in this decree no reservation or exception from the sale ordered of any portion of the 2058-acre tract. In obedience to said decree, said commissioner, on the 13th day of June, 1870, made sale of the lands, and the appellee, Jackson, became the purchaser of the 2058-acre tract, at $455, which was reported to court, the commissioner saying in his report, in connection with this tract: " There being an estimate there was a good title for only some twelve or fourteen hundred acres in said tract, by reason of prior sales," etc. This is the first intimation from any source, of any adverse claim, by any one, to any portion of the 2058-acre tract. Commissioner Terry's report of sales, on being returned, was confirmed by a decree rendered on the 11th day of October, 1870, except as to the sale of the 2058-acre tract, which the court reserved for further consideration. In this attitude of the suit of Saunders v. Saunders, Geo. Jackson, the purchaser of the 2058-acre tract, and the appellee here, filed his cross-bill therein, setting forth the agreement between the ...