Maccdtcheon v. Ingraham

• Decision Date: 12 March 1889
• Citation: 9 S.E. 260,32 W.Va. 378
• Parties: MacCdtcheon v. Ingraham.
• Court: West Virginia Supreme Court

9 S.E. 260

(32 W.Va. 378)

MacCdtcheon

v.Ingraham.

Supreme Court of Appeals of West Virginia.

March 12, 1889.

Vendor's Lien — Rescission op Contract — Insurance.

1. On the 12th day of April, 1882, M. executes to I. a deed of conveyance for certain lots of land in Greenville, Wirt county, W. Va., in consideration of $600, $200 of which is paid in cash, and the residue to he paid in one, two, three, and four years after date in payments of $100 each, and the vendor's lien is retained to secure the payment of said deferred installments. In 1884, I. insures the house situated on said lots in the North British & Mercantile Insurance Company for $500, and the said house was destroyed by fire, February 5, 1886. Subsequently an agreement in writing dated in January, 1885, was entered into between M. and I., whereby it was stipulated that I. should remain in possession of said lots until the 1st day of March, 1886, on the following conditions, viz.: That she, the said I., should take care of said property, keep the taxes paid up to that date, and peaceably surrender possession of said property to the said M., give up the deed which she then held, and the said M. should give up the notes she might then hold against said I., and the whole former trade or sale of the property should be recanted; but if the said I. should meet all the payments due to that date, with a probability of meeting the remaining deferred payments, then the original contract to remain in full force; otherwise to be null and void. Upon a bill filed in June, 1886, to enforce said vendor's lien against I., she filed said agreement of January, 1885, with her answer, and relied upon the same as a release of said vendor's lien, and a rescission of the contract to pay the residue of said purchase money. Held, that by said agreement of January, 1885, said vendor's lien was released, and the contract to pay the residue of said purchase money was rescinded.

2. That notwithstanding said agreement to rescind said contract of sale, until said rescission was consummated by exchange of deed and notes, the defendant I. still retained an insurable interest in said property on the 5th of February, 1886, when said property was destroyed by fire, and was entitled to the benefit of said policy of insurance.

(Syllabus by the Court.)

Appeal from circuit court, Wirt county.

Suit to enforce vendor's lien.

Beard & Lockhart, for appellant. V. B. Archer, for appellee.

English, J. On the 25th day of April, 1882, Elizabeth D. MacCutcheon conveyed to Rachel C. Ingraham four town lots in the town of Greenville, in the county of Wirt and state of West Virginia, in consideration of $600, $200 of which was paid down in cash, and the remaining $400 was to be paidin four installments, the first to be paid on the 1st day of May, 1884, and the residue in one, two, and three years thereafter, with interest from date, and to secure the payment of said deferred installments the vendor's lien was reserved. On the 1st day of August, 1884, said R. C. Ingraham paid the sum of $40 on said first note, and has paid nothing since. In June, 1884, said R. C. Ingraham insured said house for $500 in the North British & Mercantile Insurance Company. On the 31st day of January, 1885, an agreement in writing was entered into between said E. D. MacCutcheon and Rachel Ingraham, wherein it was covenanted that the said Rachel Ingraham should remain in peaceable possession of the property aforesaid until the 1st day of March, 1886, on the following conditions, viz.: That said R. Ingraham should take good care of said property, keep the taxes paid up to that date, and peaceably surrender possession of the same to said E. D. MacCutcheon, and give up the deed which she then held, said E. D. MacCutcheon to give up the notes she may then hold against the said R. Ingraham, and the whole former trade or sale of the property should be recanted; but if the said Rachel Ingraham should meet all the payments due to that date, with a probability of meeting the remaining deferred payments, then the original contract was to remain in full force; otherwise to be null and void. In the month of February, 1886, the house situated on said lots was destroyed by fire, together with some personal property belonging to the defendant, Rachel Ingraham. On the first Monday in July, 1886, the said Elizabeth D. MacCutcheon filed a bill in equity in the circuit court of Wirt county to enforce the vendor's lien reserved on the face of said deed, and to recover the residue of the purchase money which was then due from said Rachel Ingraham to plaintiff on said lots or parcels of land upon the notes in said deed described, and made Rachel Ingraham, the North British & Mercantile Insurance Company, and J. R. Timms, agent and in his own right, defendants; and, by way of auxiliary process, she sued out an attachment in said suit, and designated the defendant J. R. Timms, agent of said insurance company, as being indebted to or having in his possession or under his control the effects of said Rachel Ingraham, who was summoned to answer at the next term of said circuit court; and on the 30th day of June, 1886, said Timms, as agent of said insurance company, filed his answer in writing in open court, as garnishee, disclosing that he had in his possession a draft for $500, payable to Miss R. C. Ingraham, to pay the loss on said property. On the 26th day of October, 1886, the defendant R. C. Ingraham demurred generally to the plaintiff's bill, which demurrer was subsequently overruled.

On the 29th day of March, 1887, the defendant Rachel Ingraham filed her answer to the plaintiff's bill, and the plaintiff replied generally thereto. In said answer said defendant admitted the purchase of the lots in the bill mentioned, and the price she was to pay for the same. She filed the deed from plaintiff as an exhibit, with her answer, and admitted that the notes executed by her to the plaintiff were correctly stated in plaintiff's bill. She, however, denied that she owed the plaintiff on the 10th of June, 1886, $331 on account of the three notes then due, and claimed a set-off of $13 on account of taxes she was compelled to pay for plaintiff. She admitted that she had the dwelling-house insured in the year 1884 for the sum of $500, and claimed that, being the owner, she had a right so to do; and alleged that, said dwelling-house having been destroyed by fire on the 5th day of February, 1886, by such destruction the money mentioned in the policy became due and payable to her. She denied that said lots were worth only $75, and claimed them to be worth $250 or $300. She further alleged that, in order to collect said insurance money, she was compelled to sue said insurance company in the county of Wood, and that the jury gave her a verdict for $500, but at great cost and expense to her; that said sum was paid into the hands of one R. Heber Smith, the receiver of said circuit court of Wood county, where the same still remains; and that said sum of money had never at any time been under the control or in the possession of said defendant. She denied that plaintiff was entitled in equity to any portion of said insurance money, because she is indebted to plaintiff for the purchase money, or has occupied said property. She denied that she agreed to have said property insured, and assign the policy to plaintiff, if plaintiff would not sue her. She then recited the agreement in writing hereinbefore stated as entered into between her and plaintiff on...