Lyman v. Thompson

• Decision Date: 01 November 1877
• Parties: Lyman v Thompson et al.(Absent, Joheson, Judge)*
• Court: West Virginia Supreme Court

11 W.Va. 427

Lyman

v.Thompson et al.

(Absent, Joheson, Judge)^*

Supreme Court of Appeals of West Virginia.

Decided November 1, 1877.

1. Where a decree is joint against two parties defendant, one of whom is not before the Court, but is an absent defendant, and the oilier has appeared and answered, the appellate court when the decree is erroneous will reverse the same as to both of such defendants.

2. A case in which a final decree was reversed, because a neces sary party to a proper and full adjudication of the cause was not before the Court. See opinion of the Court in the cause.

Appeal from, and supersedeas to, a decree of the circuit court of Wirt county, rendered on the 20th of August 1870, in a chancery cause then in said court pending, wherein A. B.Lyman was plaintiff, and the said Thompson and wife and T. J. Christy were defendants, allowed upon the petition of the defendants Thompson and wife.

haymond, Judge, who delivered the opinion of the Court, fully states the case.

Hon. George Loom is, who was at the time Judge of the circuit court of Wood county, rendered the decree complained of.

Okey Johnson for appellant, prior to his election as one of the Judges of this court, filed the following brief:

1st. The court erred in decreeing that Isabel Thompson, the wife of John Thompson, should join in the deed with her husband for the land, and in default of her so doing; to require a commissioner to make the deed on her behalf: Clark v. Reins, 12 Gratt. 98.

While Isabel Thompson could not appeal, she being proceeded against by order of publication, yet the error being a palpable one, and to the prejudice of her husband, John Thompson, the decree will be reversed as to both: Purcell v. McCleary et at. 10 Gratt. 246; Lenoivs v. Lenow, 8 Gratt. 349; Kuhn, Nutter & Co. v. Mack & Brothers, 4 West Va. 186: Boggess's heirs v. Robinson's heirs, 5 W. Va. 402

2d. The court erred in decreeing a specific performance of the contract, and requiring a deed to be made in accordance therewith, as the proceedings and proof in the cause clearly show it was wholly without consideration and was procured by fraud, and should have been rescinded: Rawlins v. Wickham, 3 DeG. & J. 303; Kerr on. Frauds, 61; Hazzard v. Irwin, 18 Pick. 95; Baton v. Johnson, 7 Johns. Oh. 194; Rosevelt v. Fulton, 2 Cow. 129; Smith v. Richards, 13 Pet. 20; Mason v. Chappell, 15 Gratt. 572; Davis v. Henry, 4 W. Va. 571.

It is not necessary that the false representation should have been the sole cause of the transaction; it is enough that it may have constituted a material inducement. If there has been a deception, no contract resting in any degree on that foundation can stand: Kerr on Frauds 75; Rennellv.Sprye, 1 DeG. M. &G. 708; Shaw v. Stine, 8 Bosworth 157; Mason v. Crosby, 1 Woodb. & M. 342; Warren v. Daniels, ibid. 90; Smith v. Babcock, 2 id. 246; Laidlaw v. Organ, 2 Wheat. 178; Dickinson v. Railroad Company, 7 W. Va. 390.

If the subject was so different from what it was represented as to amount to a failure of consideration, the contract will be rescinded: Howland v. Norris, 1 Cox 59; Bartlett v. Salmon, 6 DeG. M. & G. 41; Veasey v. Dolon, 3 Allen 380.

Here was a total failure of consideration. Thompson relied upon the representations and did not examine for himself. And he may be excused for so doing: Mason v. Crosby, 1 Woodb. & M. 342; Smith v. Babcock, 2 id. 246; Hall v. Thompson, 1 S. & M. 443.

The circumstances were such as induced Thompson to rely upon the representations, made to him by W. H. Thompson and his confederates; and the contract should be rescinded, even if the means of information were open to him: Mattock v. Todd, 19 Ind. 130; Johnson v. Taber, 6 Seld. 319; Gordon v. Parmelee, 2 Allen 214.

The subject matter and relative knowledge of the parties should be considered. If the purchaser has not equal means of knowledge with the vendor, it is presumed he relied upon the representations; and if false, he should be relieved: Picard v. McCormick, 11 Mich. 68; Hervey v. Smith, 17 Ind. 272; Nouiand v. Cain, 3 Allen 261; Beard v. Campbell, 1 A. K. Marsh. 125; Narcissa v. Wathan, 2 B. Mon. 241.

In order to establish fraud, it is not necessary that direct affirmative or positive proof be given. Like much of human knowledge on all subjects, fraud may be inferred, from facts that are established. It is enough if facts be established, from which it would be impossible, upon a fair and reasonable conclusion, to say there was no fraud in the transaction.

Various facts and circumstances evince with unerring certainty the hidden purposes of the mind: Llewellyn v. Mackworth, 2 Atk. 40; Villiers v. Villiers, ibid. 71; Man v. Ward, ibid. 229; East India Co. v. Donald, 9 Ves. 282; Stikeman v. Dawson, 1 DeG. & Sm. 105; Reed v. Nixon, 48 111. 323; Pope v. Andrews, 1 S. & M. 135; Danton v. MeKenzie, 1 Dessau. 289.

The misrepresentations being proved, and the fraudulent circumstances being shown, the burden of proof to show the transaction fair is shifted to the parties denying the fraud, and to escape the consequences they must show that the appellant, John Thompson, was well aware and cognizant of the real facts of the case, and the proof of such knowledge must be clear and conclusive: Dyer v.Hargrave, 10 Yes. 505; Shacketown V. Suteliff) 1 DeG, & Sin. 609 Prce V. Macauley, 2 DeG. M. & G. 339; jBoyce v. Grundy, 3 Pet. 210; Glopfon v. Cohart, 3 S. & M. 363.

It cannot be pretended there is any such proof of knowledge on the part of Thompson.

3d. It is contended, that the foregoing authorities do not apply to a contract for the sale of a patent right. By all principles of equity and justice the withering finger of fraud taints, blasts and destroys everything that comes in contact with its polluting touch; and there is no difference in law or equity between a fraudulent contract for the sale of a swindling patent right, and a fraudulent sale of anything else. The courts of V i rgi nia and our own State know no difference: Mason v. Chappell, 15 Graft, 572; Cady v. Gale, 5 W. Va. 547.

4th. It is insisted that the fraud in this case is proved, and the Court should reverse the decree of the circuit court, and pronounce a decree denying specific performance and rescinding the contract; but if the Court has any doubt of the proof of fraud, the decree should be reversed and the cause remanded with instructions to direct an issue: Douglas v. McChesney, 2 Rand, 109; Isler v. Grove, 8 Gratt. 257; Metterts, adm'r, v. Jlogan, 18 Gratt. 231; Magill v. Manson, 20 Gratt. 527; Davis v. Henry, 4 W. Va. 571.

D, II Leonard, for appellees, cited:

Vance y. Snyder, 6 W. Va. 24; Meadow v. Justin, 6 W. Va. 198; Ludington v. Renick, 7 W. Va. 282: Slaughter's adm'r v. Gerson, 13 Wall. 379, and authorities there cited; Mason v. Chappell, 15 Gratt, 572; Olivant v.-Baitley, 48 E. C. L. R. 287; Prideaux v. Bennett, 1 J. S. Scott, N. S... 12 Am. R. 76; 7 Eng. Law and Eq. 254; Story on Agency 126.

Haymond, Judge, delivered the opinion of the Court:

The plaintiff commenced this suit in equity in the circuit court of Wirt county on the 26th day of May 1869, and afterwards, on the first Monday in June 1869, at rules, an order of publication was awarded against all the defendants to the bill, viz: John Thompson, Isabel Thompson and Thomas J. Christy. The bill is filed to enforce the specific execution of an alleged agreement and contract in writing in the following words, viz: "For and in consideration of the sum of one dollar, (S100)., to me in hand paid by Thomas J. Christy of Cincinnati, Ohio, the receipt whereof is hereby acknowledged, I, John Thompson, of Portsmouth, Ohio, do hereby agree and bind myself, my heirs, executors, administrators and assigns, to convey unto the said T. J. Christy, his assigns, by warranty deed with full covenants, all of that certain tract or parcel of land now belonging to me, consisting of five hundred acres of land, situated on Falling Timber run, in Wirt county, West Virginia, and will make said conveyance within ten days from date hereof. A diagram of said land is hereto attached.

In witness whereof I have hereunto set my hand and seal this 24th day of March, A. D. 1868.

"John Thompson, [Seal.]

"Witness, "Isabel Thompson, [Seal.]"

"W. PL Allen."

The diagram cannot be given here. Upon said contract is the following writing, indorsed,

"Portsmouth, March 30, 1868.

"Sixty days after date, I promise to pay to John Thompson, the sum of two hundred and fifty dollars, ($250.00), on the payment of which, the said Thompson agrees to deliver to Thomas J. Christy, a warranty deed to the five hundred acres of land described in the bond. In case the above-named amount of money is not paid promptly, the said Thompson is released from all obligation of making said deed.

"Thomas J. Christy."

There is also written upon said contract the following, viz: "In consideration of one dollar, ($1.00), to me in hand paid by A. B. Lyman, of Cincinnati, Ohio, I hereby assign, sell and convey to said Lyman, all my right, title and interest in and to the within contract, and I hereby authorize and instruct the within-named John Thompson and wife to make the deed for the land, named in said contract, to said A. B. Lyman, or his heirs, executors, administrators or assigns, and I hereby assume the payment of the sum of two hundred and fifty dollars, ($250.00), agreed to be paid by me as above, and to save said Lyman free and harmless from the payment of the same, and from all consequences of my non-payment of the same.

"Witness my hand and seal the 4th day of May 1868.

"T. J. Christy, [Seal.]"

The plaintiffs bill is as follows, viz:

"To the Honorable George Loomis, Judge of the circuit court of Wirt county, West Virginia:

"Humbly complaining, your orator, A. B. Lyman, the plaintiff, represents unto the court that John Thompson, on the 24th day of March 1868, was the owner in fee simple of a certain tract of land situated on the waters of Fallen Timber run, Wirt county, West...