Lockwood v. Ho'lliday

• Decision Date: 01 May 1880
• Parties: Lockwood v. Ho'lliday, trustee, et al.
• Court: West Virginia Supreme Court

16 W.Va. 651

Lockwood

v.Ho'lliday, trustee, et al.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1880.

1. A consent decree dismissing a bill with costs, with no saving therein of the right to bring another suit, is an adjudication of the merits of the cause.

2. Parol evidence, in the absence of fraud or mistake, will not be received to engraft upon or incorporate with a valid written contract an incident occurring contemporaneously therewith and inconsistent with its terms.

Appeal from and supersedeas to two decrees of the circuit court of the county of Marshall, rendered, one on the 12th day of December, 1876, and the other on the 8th day of August, 1877, in a cause in chancery in said court then pending, wherein J. H. Lockwood was plaintiff and R. C. Holliday, trustee, and others were defendants, allowed upon the petition of said Lockwood.

Hon. T. Melvin, judge of the first judicial circuit, rendered the decrees appealed from.

Johnson, Judge, furnishes the following statement of the case:

The plaintiff, Lockwood, and James Burley in his lifetime had large dealings with each other, and on the 16th day of December, 1869, a short time before the said James Burley died, and while he was quite sick, they made a settlement, in which it was ascertained that the said Lockwood was indebted to said Burley in the sum of $1,000.00, for which the said Lockwood and wife on 8. the 25th day of December, 1869, executed a deed of trust to R. C. Holliday, trustee, to secure the said debt. After said Burley's death, to wit, in July, 1873, said Lockwood obtained an injunction to restrain the sale under said deed of trust, among others upon the ground that mistakes to a large amount were made against him in said settlement, and that said settlement was made under unfavorable circumstances, said Burloy being, as he alleged, in a dying condition, and that he was denied access to papers that were necessary to a correct settlement, &c, and among other things prayed for an account between himself and the estate of said Burley. Said Lockwood took a number of depositions in the cause, to support his bill, and on the 6th day of April, 1874, a consent decree was entered in the cause, dissolving the injunction and dismissing the bill, with costs.

On the 27th day of January, 1874, Lockwood entered into the following agreement:

" This agreement made this 27th day of January, 1874, between Jonathan H. Lockwood, and Joshua Burley, administrator of the estate of James Burley, deceased, of the first part, and L. T. Gray, W. J. Purdy and Hanson Criswell of the second part witnesseth: That whereas there are now certain deeds of trust on two tracts of land of about thirteen acres owned by said Lockwood, embracing such portions of what are known as the Mound and Seminary fields, remaining unsold, which said deeds of trust, are respectively held by Mrs. John Bell, James R. Bell, and the heirs of James Burley, deceased; the deed of trust of Mrs. John Bell and James R. Bell is to secure the principal sum of $6,500.00, on which there is some interest, and the deed of trust held by the said Burley's heirs is to secure the principal of $4,000.00 on which there is also interest; and whereas the said Lockwood agrees to pay the whole of the said Bell deed of trust and interest, and being desirous to avoid any sacrifice of his property, and desiring that the land shall be sold as soon as possible in such parts or parcels as may be most advantageous to himself and the cestuis que trust, and said J. H. Lockwood having agreed that &aid parties of the second part should sell and dispose of said land and apply the proceeds of the sale or sales to the discharge of the said deeds of trust, and in order that said lands may be sold to the best advantage, it is deemed necessary that the title to the same shall be vested in said parties of the second part, and that all liens be released on the same; and, whereas, the said Bells upon the payment of their debt agree; to release said land from the operation of said trust, the said Jonathan H. Lockwood, therefore, agrees to execute to said parties of the second part a good and sufficient deed of general warranty for said land, and said Joshua Burley, administrator aforesaid, agrees to execute a release of the deed of trust on said two pieces of land as aforesaid from the operation of said deed of trust on said two pieces of land as aforesaid. Any arrangement as may be necessary to secure the release of said Bell's deed of trust is to be made by Jonathan II. Lockwood. The said parties of the second part agree to sell and dispose of said land upon the most advantageous terms they can secure or obtain, and apply the proceeds first to the payment of the claim held by said Bells, and if anything remains after the payment of all expenses attending the execution of this contract, it is to be applied to the payment of the balance on the said Burley's claim of $4,-000.00, after deducting therefrom the one-half of the Bells' claim when paid. Said parties of the second part, as compensation for their services, shall receive out of the sales fifteen per cent., which, with expenses of advertising and other contingent and necessary expenses, shall be deducted from the sales when made. Said parties of the second part shall sell said lands for one third cash and balance in one and two years, taking deeds of trust to secure back payments, and they are to have months in which to perform their part of this agreement.

"Witness the following signatures...