Mann's Ex'rs v. Petitioner

• Decision Date: 03 December 1881
• Court: West Virginia Supreme Court
• Parties: Mann's Ex'rs v. Robinson et als.

19 W.Va. 49

Mann's Ex'rs

v.Robinson et als.

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1881.

Decided December 3, 1881.

1.When the owner of land authorizes an agent to make a contract for the sale thereof, and it is done by the agent, he has no authority as an incident to the authority conferred upon him to collect any portion of the purcbase-money, which by the terms of the contract are to be paid at a future time.

2.Qucere: Has such agent except under peculiar circumstances authority to receive so much of the purchase-money, as is to be paid in hand, as a necessary incident to his power to sell?

3.An agent authorized to collect a debt can receive payment thereof in money only, and he has no right to accept any thing else in satisfaction without express authority from his principal, and if he does, it will be no payment, unless ratified or assented to by the principal.

Appeal from and supersedeas to a decree of the circuit court of the county of Greenbrier, rendered on the 11th day of November, 1879, in a cause in said court then pending, wherein William T. Mann's executors were plaintiff's, and Robert Robinson and others were defendants, allowed upon the petition of said executors.

Hon. Homer A. Holt, judge of the eighth judicial circuit, pronounced the decree appealed from.

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

On April 25, 1868, Mark L. Spotts, trustee, conveyed to John A. Hunter and Wm. T. Mann a tract of land in Green- brier county of about one hundred and fifty or one hundred and sixty acres, sometimes called the Gasling tract, near Blue Sulphur Springs. On April 1st, 1862, John A. Hunter conveyed this land and several other tracts to his brother Henry F. Hunter, as it was afterwards decided by this Court in another suit, on a secret trust in favor of John A. Hunter; and in 1867 the land so conveyed to Henry F. Hunter was ordered to be reconveyed to John A. Hunter. In the meantime, on March 2d, 1863, Henry F. Hunter sold to Robert Robinson this one hundred and sixty acres of land owned by him and Wm. T. Mann and several other tracts. He did not disclose to Robinson at the time, that he held but a part of this one hundred and sixty acres of land for John A. Hunter, or that the legal title and ownership of the other part was in Wm. T. Mann. The whole of these lands were sold for $5,000.00, of which $1,000.00 was to be paid on April 1st, 1863, and the balance in four equal annual installments, for which he executed his bonds to Hunter.

The following is the article of agreement made and entered into by them:

"Artickel and agreement miid this the 2 day of March, 1863, between H. F. Hunter, of the first part, and Robert Robinson, of the second part:

" And that the said parte of the first part have sold to the party of the second part of the Jolcring parsels or tracks of lands, to-wit, the first track, known as the Guesting track, of one hundred and sixty achors of land, more or less, and adjoining the lands of the Blue Sulphur Springs, A. D. Johnson and others, 40 achors adjoining the sane, Renick and others, known as the Skimmerhorn entry, 45 achors on Snake run, nown as the Briant land and adjoining the lands of William Hoalcomb and others. These lands was conveyed by John A. Hunter to Henry F. Hunter and on record in the Clerk's ofice in Greenbrier county, for the sum of 5, 000.00 dolars, in the following payments: One thousand dollars on the first day of Aprile, 1863, and one thousand a year until all the money is payed, and that the said H. F. Hunter binds himself and airs to make the said Robert Robinson a warrentee dead when the purchase money is all paid; and the said parties heareby bind their selves, heairs, executors and adminestrators for the performance of all and every part of the above agreement.

"As witness hour hand and seals day and year first above written.

"Henry F. Hunter, [Seal.]

"Robert Robinson, [Scla.]

"James W. Bennett."

Two days after H. F. Hunter obtained from Wm. T.Mann the following paper:

"I, Wm. T. Mann, being part owner of the Amanda Gaslin tract of land, near Blue Sulphur, sold to Doct. Hunter and myself by said M. Gaslin, through trustee, now that the interest of said Doct. Hunter has been transferred by deed to Henry F. Hunter, do agree that said H. F. Hunter shall hold said land in his possession, with the understanding that the crops of hay or grain produced on said land shall be annually divided between said Hunter and Mann according to their respective interests; and that should said H. F. Hunter sell said land, then I, Wm. T. Mann, will endorse said sale and take my interest in money or bonds, as contracted by said H. Hunter; the parties to bear their equal share in the expense of keeping up farm till sold.

"Given under my hand this 4th March, 1863.

"Wm. T. Mann.

"Teste--James Mann.."

This paper was exhibited to Robert Robinson, before he had paid any portion of the purchase-money and very shortly after the sale to him. He had heard something about Mann's owning an interest in this land, probably the same day he bought, and he refused to pay anything on it, till after this paper signed by Mann was shown to him. He then from time to time made payments to Hunter, till all the purchase-money was paid. Robinson has been in possession of the land since this purchase.

On the first Monday in May, 1874, William T. Mann instituted this suit and the facts above stated were shown in the progress of the suit and stated in the bill and various amended bills and in the answers to them of Robert Robinson.

The object of the suit was to enforce a specific execution of this contract for the sale of this one hundred and sixty acres of land made by Henry F. Hunter to Robert Robinson, to ascertain the relative value of the several tracts of land named in this contract other than this one hundred and sixty acre contract, and to have so much of the amount so ascertained, which was to have been paid for, a moiety of this one hundred and sixty acres of land, paid to the plaintiff, William T. Mann, and, if necessary, to have the land sold to pay the same. Henry F. Hunter died in 1867, and John A. Hunter in 1873. The personal representatives and heirs of both John A. Hunter and Henry F. Hunter as well as Robert Robinson were made defendants in the cause. Mann became non compos mentis; and on June 16, 1876, the suit was ordered to be prosecuted in the name of his committee. He afterwards died and the suit was revived in the name of his executors. A supplemental bill was filed Nov. 20, 1878, which was demurred to and the demurrer sustained. The character of it will be stated in the opinion.

Sundry depositions were taken, which prove the admissions of Henry F. Hunter and John A. Hunter, that Robert Robinson had paid them all the purchase-money of this one hundred and sixty acres of land, which the plaintiff excepted to as not legal evidence against him, and that Robinson had sold part of the land, forty-six acres, for $750.00, which was paid, but it does not appear to have been a part of this one hundred and sixty acres, in which Mann had an interest; and I presume it was a portion of the other lands sold to Robinson by Hunter. Mann died pending the suit, and after his death and the death of Henry F. Hunter Robinson's deposition was taken; and he proved, that his contract with Henry F. Hunter was made in Greenbrier county, and that Confederate currency was the currency then in circulation there, and his recollection was, the purchase-money was to be paid in the currency of the country. He had made allegations of this character in his answer, though nothing was said about Confederate currency. He proved that the purchase-money was paid H. F. Hunter in cattle, horses and sheep at agreed prices much under Confederate prices, and in notes given by others to Robinson before the war. He says, that in the first conversation about the land he asked him about the pay for the land, and he said, he had nothing to do with it, that he turned it over to Hunter. These conversations and transactions with Hunter and Mann were excepted to as improper testimony, it being given after the death of these parties. The land is worth now, he says, from $2,500.00 to $3,500.00, it being in good condition. It was not worth $2,000.00 when he bought it.

C. Hoke proved, that "Mann told him, that Henry Hunter had come to his house during the war and told him this land was thrown open, exposed and doing no good, and he could sell it for good cash-paper, and he permitted him to do so. He said he was a sharp rascal, and his estate was insolvent and he never expected to get anything"; but it was proven, that at that time Mann's mind and memory were very weak. Shortly after the war, when his mind was good, he said to another witness, that "he understood that Robinson had paid Henry Hunter for this land, and he, Mann, must have his money or the land, that he had paid more than $1,000.00 for it."

Upon the hearing of the case November 11, 1879, the circuit court being of opinion, that Robert Robinson had paid for the several tracts of land mentioned in this written contract with H. F. Hunter dated March 2, 1863, decreed, that a commis" sioner of the court execute to him a deed conveying the title of all the parties to him, and that he recover of the executors of William T. Mann, to be levied of their testator's assets in their hands, the costs of this suit.

The executors of Mann have obtained an appeal and supersedeas to this decree.

Dennis & Dennis and Price 6c Preston for appellants relied upon the following authorities: 2 Story Eq. Juris. § 1127 and note 1; Sugd. on Vend. (2d Am. ed. 1820) p. 368, s. p. 82; 2 Tuck. Com. 451; 7 Ohio 70; 9 Leigh 387; Story Agency § 98, note 2; Id. note 5; 2 Story Eq. Juris. § 1131 a; 13 East 432; Sugd. Vend. 32.

John W. Harris and A. C. Snyder for appellees relied upon the following authorities; 4 Leigh 336; 13 W. Va. 728; 9 Leigh 387; Story on Ag. § 58;...