Meek v. Spracher

• Decision Date: 04 December 1890
• Citation: 12 S.E. 397,87 Va. 162
• Parties: Meek. v. Spracher et al.
• Court: Virginia Supreme Court

87 Va. 162

12 S.E. 397

Meek.

v.Spracher et al.

Supreme Court of Appeals of Virginia.

Dec. 4, 1890.

Equity — Parties — Practice — Jurisdiction— Pleading—Vendor and Vendee — Fraud—Appeal.

1. In a suit by the vendee of land for an abatement in the purchase price on account of deficiency in the quantity of the land, a person who, though not named in the contract of sale, was, as the vendor knew, to receive part of the land, and who gave his bond for part of the purchase money, is a proper party defendant; and it is proper to overrule the vendor's demurrer to the bill for misjoinder of such defendant.

2. Where the ground of relief in such suit is that the vendor fraudulently misrepresented the quantity of land in the tract sold, the fact that plaintiff has an adequate remedy at law does not oust a court of equity of jurisdiction, since fraud is an original ground of equitable jurisdiction.

3. In such suit, an allegation that defendant assured plaintiff that the tract contained 800 acres, of which 300 acres were cleared; that plaintiff relied on such assurance, and was induced thereby to make the purchase; that this assurance was false, in that the tract contained less than 700 acres, of which only about 158 acres were cleared; and that defendant knew that his assurance was false when he made it, —is a sufficiently clear and specific charge of fraud.

4. Where the defendant to such suit alleges in his answer that there was a defect in the title to certain property which he received in exchange for the land sold, but does not allege that his possession of such property has been disturbed, and neither files a cross-bill nor asks that his answer be treated as such, he cannot complain because an exception to that part of his answer is sustained, especially when the final decree is made without prejudice to his right to sue on account of such alleged defect,

5. Where the answer to a suit in equity is not sworn to, and the evidence contained in the depositions is conflicting, the court may, of its own motion, direct an issue to be tried on the common-law side of the court.

6. Where the issue is whether tho vendor of land made false and fraudulent misrepresentations as to the quantity of land in a tract sold, and the evidence clearly shows that the representations, if made, were false, and several witnesses swear that they were made, a verdict finding that the vendor made such representations will not he set aside on appeal, though the evidence on which it is based is contradicted by the evidence of the other party.

7. Where, by reason of a conflict in the evidence, an issue is directed out of chancery, the solution of which depends on the credibility of witnesses, a decree based on the verdict will not be reversed because of errors occurring in the rulings on evidence or the charge to the jury, when it appears from all the evidence, including that which has been rejected, that the verdict is right. Following Snouffer v. Hansbrough, 79 Va. 166.

S. C. Graham and R. R. Henry, for appellant.

Williams & Bro., for appellees.

Richardson, J. This is an appeal from a decree of the circuit court of Tazewell county, rendered on the 7th day of November, 1S89, in the chancery cause wherein William L. Spracher was complainant and Joseph Meek, the appellant, and Joseph B. Greever were defendants. The case was as follows: On the 10th day of December, 1885, an exchange of lands in said county was made between Meek and Spracher, the former receiving a tract of land in Burk's Garden and the bonds of Spracher and Greever for 92, 300, in exchange for a tract of land lying on Bluestone river, near the town of Graham, at the junction of the New River and the Clinch Valley branches of the Norfolk & Western Railroad. The parties, respectively, made to each other conveyances of those tracts of land. At the time of the exchange, Spracher agreed that Greever should have one-third of a designated part of the Bluestone tract, and of this agreement Meek was cognizant. In October, 1886, Spracher filed his bill against Meek and Greever, in which, in addition to the foregoing, the following facts were set forth: That, at the time of the exchange, Meek represented to Spracher and Greever that the Bluestone tract contained 800 acres in the aggregate, and assured them that there were 300 acres of cleared land within the boundary, south of Stoney Ridge, the most valuable part of the tract. It was on this part the complainant expected to live with his family, it being accessible to Graham by the turnpike running through it. And it was on this part also that Greever was to get his portion, and on which he designed to locate his high school, his profession being that of a teacher. Meek positively assured them that the tract contained, on the south of Stoney Ridge, 300 acres, that it had been surveyed by AlexanderSt. Clair and others when efforts were being made to have the South-West Virginia Lunatic Asylum located at Graham; that the purchasers relied implicitly on Meek's assurances as to the area of the entire tract being 800 acres, and that 300 acres thereof on the south side of Stoney Ridge was cleared land; that they were thereby induced to make the exchange or purchase, and that.without such representation and reliance, they would not have made the same; that in order to ascertain the amount of boot which the one party should pay the other, Meek priced his Bluestone tract in three parcels, the said 300 acres of cleared land at $30 per acre, another part as 200 acres, at $12, and the third, as 300 acres, at $8 per acre, making $13,500, from which Meek deducted $300 at the instance of Spracher. The bill further sets forth that the said representations of Meek were false, and that he knew them to be false when he made them, and that neither St. Clair nor any one else connected with the said asylum ever represented to Meek that the boundary south of said ridge contained 300 acres of cleared land, and the bill charges that the same contains, by actual survey, only 158 acres, showing a deficiency of 142 acres, for which the complainant was entitled to compensation at the contract price of $30 per acre. He also charges that a portion of said tract containing——acres was claimed by two persons, McDonald and Bane; and in conclusion the bill prays that said Meek and Greever be made parties defendant, and be required to answer the same, but waiving answers under oath, and that compensation for the deficit, 142 acres, be decreed to the complainant, and for general relief.

Meek demurred to and answered the bill. By his answer he denied that he had had anything to do with his co-defendant, Greever, in the transaction, except to accept his bonds for the $2,300, mentioned in the bill. He admits that the deed conveying the Bluestone land to him calls for 800 acres, more or less, as also does the title bond and the deed whereby he conveyed the same to Spracher, but states that he told the complainant that he would rate the said tract in the exchange at only 700 acres, and that when the title-bond was executed, complainant said he wanted it to cover all of the land which the deed to respondent called for. He denied that he had represented that there were 300 acres of cleared land south of the ridge, but thinks that he may have said there were 300 acres of land south of the ridge, and that Alexander St. Clair had perhaps estimated it at that quantity. He sets up as a defense the allegation that Spracher had ample time to judge fully of the land, its quality, and its quantity; that he and Greever had actually measured the lines and run around the land, and had as much opportunity to know it as he had. And in conclusion he intimates a doubt as to the validity of the title to a part of the land received by him in exchange, and a desire to have an investigation. Greever did not answer. In January, 1888, depositions having been taken on both sides, the circuit court entered a decree directing the surveyor of Tazewell county to go upon the land conveyed by Meek and wife to Spracher, by deed dated 18th December, 1885, and make a survey of the tract, and of the part lying south of Stoney Ridge, showing how much is cleared. The order was executed and report thereof made to court. In May, 1888, the cause came on upon the papers formerly read, together with the depositions and the report of sur vey and plot, when the court entered a decree overruling the demurrer, and directing issues to determine—First, whether Spracher was induced to purchase the said land by fraud or misrepresentations made to him, or his agent, by Meek; and, second, if so, what damages Spracher sustained in consequence thereof; prescribing that at the trial Spracher should be the plaintiff, and deferring the decision of all other questions until the verdict should be rendered and approved. At the trial, the plaintiff Spracher asked for eight instructions, seven of which the court gave to the jury as asked, and gave the eighth instruction, with a modification, to which action of the court the defendant Meek excepted. The jury returned their verdict in favor of the plaintiff Spracher on the issues aforesaid, and assessed his damages at $3,832, the value of the deficiency of 127.65 acres at $30 per acre. The defendant Meek moved the court to set aside the verdict, which motion the court overruled, and gave judgment according to the finding of the jury; to which action of the court the said defendant excepted, and prayed the court to certify all the evidence in the case, which was accordingly done. The verdict of the jury upon the issues directed having been certified, and, when corrected in a slight particular, duly approved, the circuit court, at the November term, 1889, adjudged that, the complainant Spracher, for the benefit of himself and the defendant Greever is entitled to have an abatement of the price of the Bluestone tract as agreed upon in the purchase and exchange with Meek, to the extent of the value of...