Love v. Petitioner

• Decision Date: 01 November 1884
• Citation: 24 W.Va. 741
• Parties: Love v. Teter.
• Court: West Virginia Supreme Court

24 W.Va. 741

Love

v.Teter.

Supreme Court of Appeals of West Virginia.

Submitted June 17, 1884

Decided November 1, 1884.

(^*Woods, Judge, Absent.)

1. Fraud cannot be predicated on a promise not performed. To make it available there must be a false assertion in regard to some existing matter by which a party is induced to part with his money or his property, (p. 746.)

2. In morals the failure to perform a promise may be without excuse or justification; but in law false representations to authorize the rescission of a contract must be made in regard to existing facts. (p. 746.)

3. A cause in which a demurrer to the plaintiff's bill is sustained because the averments of the bill for setting aside the contract complained of, attempt to predicate fraud upon representations of intentions and promises, and not upon representations made in regard to existing facts.

The facts of the case are stated in the opinion of the Court.

Ewing, Melvin $ Riley, for appellants,

Dayton $ Dayton, for appellees,

*

Snyder, Judge:

By deed, dated October 3, 1868, Stephen Arnold conveyed to his daughter, Mary Jane, the wife of Byron Love, a tract of two hundred acres of land in Barbour county, "subject to this condition, that the deed shall not operate as a conveyance of the legal title to said land or the right to possession thereof until after the death of the said Stephen Arnold."

On June 8, 1871, after the aforesaid deed had been recorded, the said Byron Love and wife, by deed duly acknowledged and recorded, demised, granted and leased the said land to W. B. Teter, W. C. Okey, D. D. T. Farnesworth, G. A. Newlon, John S. Fisher and others, for the uses and purposes therein stated. The said lease, which is in fact simply a contract, after setting forth the consideration therefor as one dollar in hand paid and the promise and covenant of the parties of the second part to pay to the parties of the first part one quarter of one cent per bushel for all coal of every kind that may be found upon, or mined from beneath, the surface of said land, an account of which is to be kept and rendered to the parties of the first part and payments therefor to be made monthly, proceeds as follows: "The said parties of the second part take only the exclusive privileges of the coal aforesaid upon the said lands or under the surface of the ground thereof. The said parties of the first part are to have the entire control of the surface of the said lands, together with all rights and privileges of cultivating and improving the same so as not to interfere with the full enjoyment of the rights of the said parties of the second part, their heirs and assigns, in working and operating upon said lands for the purpose of taking out coals. It is agreed that the said parties ot the first part have the privilege of taking all the coal that they may desire previous to the time that the said parties of the second part, their heirs and assigns, commence work taking out coal from said lands, and after work has been commenced by the said parties of the second part, their heirs and assigns, the said parties are prohibited from taking any coal except sufficient for family use for themselves and their heirs, and from any point they may desire. The said parties ot the second part, their heirs, and assign by the tenor of this contract are to have the exclusive right and privilege of taking all the said coals from said lands at the price before stated, and for that purpose are to have ingress and egress upon said lands to remove the said coal, doing, however, as little damage as possible to the lands and growing crops, and are to have the privilege to take from said lands and use all necessary materials to aid in mining said coals. And it is further agreed that the said parties of the second part, their heirs and assigns, have the option of purchasing said lands and tenements on paying to the said parties of the first part the sum of sixty dollars per acre at any time within the period of eighteen months from the date hereof, and on full payment being made, the said parties of the first part are to make, execute and deliver to the said parties of the second part, their heirs or assigns, a deed in fee simple with covenants of general warranty for the said lands and tenements."

On February 8, 1879, the said Byron Love and wife exhibited their bill in the circuit court of Barbour county against Stephen Arnold, their grantor, and the said W. B. Teter and the other grantees in said contract of lease for the purpose of cancelling and setting aside said contract. The billwas demurred to and all the defendants answered, depositions were taken and, on October 26, 1881, the court overruled the demurrer and entered a decree cancelling and setting aside said contract of lease. From this decree the defendants, John S. Fisher and A. M. Poundstone have appealed.

The substantial averments of the bill for setting aside said contract are, in effect, that two of the defendants, Farnsworth and Fisher, came to the residence of the plaintiffs "and represented to them that there was a company of capitalists, either then or about to be organized, in which the defendants, Latham, Newlon, Poundstone and themselves wTere either members or component parts, or were about to become such, if they could lease permanently a certain quantity of lands in that vicinity for the purpose, in order to commence extensive operations in the excavation, manufacture and marketing of mineral coal, coal-oil, &c, ad libitum" and that if they could lease a sufficient quantity of land in that vicinity for their purposes they would commence opera-tions immediately, and if they could not, they would surrender their...