Miller v. Lorentz et al.
| Decision Date | 28 March 1894 |
| Parties | Miller v. Lorentz et al. |
| Court | West Virginia Supreme Court |
In the case of a verbal contract for the sale of land the payment of the purchase-money is not of itself such performance, as will take the case out of the statute of frauds, although the vendor lias become insolvent.
Where the general requisites for a decree for specific performance are shown, possession given and taken in part execution of such verbal contract may of itself entitle the purchaser to have the same enforced; but such possession must be actual and exclusive, and be retained and continued under it; and such contract must be satisfactorily proved, and be certain and definite in its terms.
Vendee.
This rests upon the principle of equitable estoppel, that the vendor has so dealt with the purchaser in receiving the whole or a part of the purchase-money or in contracting for its payment, and in putting him in actual possession of the land in part execution of the contract of sale, that it would be a fraud on the vendor's part to repudiate the contract and stop short of its complete execution.
A. Edmiston and W. W. Brannon for appellant cited 31 W. Ya. 9; 6 W. Va. 251; 6 Rand. 681; Fry Spec. Perf. §§ 403, 404; 5 Munf. 308; 3 Pom. Eq. Juris. 456; 2 Min. Inst. 773-775; 7 Waite Act. & Def. 25; 10 W. Va. 12; 6 W. Va 747; 5 Laws. R, R. & P. §§ 2614, 2615; 12 Leigh, 70, 79, 84; Bar. Ch'y Pr. 120; 2 Lom. Dig. 95, 100; 23 W. Va. 107; 21 W. Va. 481; 36 W. Va. 350.
L. Bennett, for appellees:
I. Retaking depositions. 29 W. Va. 263, 2 Syl.; 17 Gratt. 187; 4 Monr. R. 280; 1 Beasley's R. 108.
II. Removal of cloud. 21 Conn. 488.
III. Equity jurisdiction over statutes of frauds and application to case at bar. Brown Stat. Frauds. §§ 437, 448; 2 Min. Inst. 903, 909, 4 n.; Sto. Eq. Jur. § 759; 17 W. Va. 336; 31 W. Va. 9; 20 W. Va. 394, 404.
IV. Nature and extent of proof requisite. 9 Wall. 1; 1 Young & Coltyer, Ch'y R 147; 53 Pa, 332; 6 W. Va. 256; Code W. Va., e. 125, s. 59; 51 Pa. St. 51.
V. Questions relating to possession. 1 Sands Ch'y 46; 1 Mc-
Cord Eq. 32; Hoff Ch'y 470; 9 Watts 106; 1 Gratt. 211; 31 W. Va 14; 6 Watts 464; 37 W. Va. 776; 36 W. Va. 71 (2) 72 (5); 1 Gratt. 207 (bottom.)
VI. Laches not applicable where vendee is in possession. 3 Jones (X. C.) Eq. 84; 3 Paige (N. Y.) 446; 2 Lom. Dig. 103: 2 Scho. & Sufr. 604;10 W. Va. 677, Syl. 6; 10 Wright 537; 2 B. Mon. 196; 3 Edw. 213; 12 Allen; White and Tudor's Lead. Cas. Eq. part 2, 4th Am. Ed. p. 1137; 32 W. Va 479, 480.
This is a suit in equity to enforce the specific execution of a parol contract for the sale of land, brought on the 7th day of March, 1889, in the Circuit Court of Lewis county, by James W. Miller, against Maggie Lorentz, as heir at law of Perry C. Lorentz, plaintiff's vendor, and against Nathan Allman, vendee and grantee of the said Maggie Lorentz. Maggie Lorentz, by deed dated November 5, 1888, had sold and conveyed said land by metes and bounds as containing twenty six acres to defendant Nathan Allman. The court by decree pronounced on the 24th day of October, 1892, decreed that Lafayette L. Lorentz, devisee of defendant Maggie Lorentz, who had died pending the suit, and defendant Nathan Allman should convey the twenty six acres in controversy to plaintiff within sixty clays and in default of such conveyance that a special commissioner should make such deed of conveyance; and from this decree L. L. Lorentz and Nathan Allman have obtained this appeal.
Plaintiff' alleges in his bill, that in 1875 and before that time the said Perry Lorentz owned and possessed a certain tract of land situate partly in the county of Lewis and partly in the county of Upshar, bouaded by the land of plaintiff, the land of William Bargerhoff, the land of William Bartlett (now owned by John Bells) the land of Barnes Bartlett (now owned by John S. Reger) and by the
Staunton and Parkersburg turnpike; that on the-day of, 1875, the said Perry Lorentz sold to plaintiff by verbal contract the said tract of land bounded as aforesaid at the price of two dollars per acre; and that plaintiff at once took actual possession of said land under said purchase and has ever since held the same in actual, continuous, notorious and exclusive possession; that at the time of the sale the quantity of land sold was not known, but plaintiff paid at the time of the purchase fifty dollars, and afterwards under mistake as to the quantity paid Perry Lorentz seventeen dollars and seventy five cents on the 26th day of August, 1876, and thirty dollars about the same time, which turned out to be in excess of the price agreed to be paid for the land; that some time afterwards plaintiff had the same surveyed, and found it to contain seventeen and a half acres, and delivered the plat of the survey to said Lorentz for him to make a deed to plaintiff for the land; that Perry Lorentz always recognized the validity of the sale, which was a verbal one, but neglected to convey the land to plaintiff by proper deed, which at the time of the sale and repeatedly afterwards he promised to make; but on the 4th day of July, 1887, he departed this life intestate and insolvent, leaving defendant Maggie Lorentz his sole heir; that, notwithstanding plaintiff's said purchase and possession of the land were well known to both Maggie Lorentz and defendant Nathan All man, the said Maggie refused to convey the same to plaintiff, but instead thereof sold and conveyed the same to defendant, Allman by deed dated November 5, 1888, recorded in Upshur county; that the twenty six acres thus sold and conveyed to Allman include in addition to said seventeen and a half acres, eight and a half acres of plaintiff's contiguous tract of one hundred and eighty five acres, which was conveyed to the plaintiff by Jacob Bush and wife by deed dated 12th March, 1859, which is part of a tract of two hundred and twenty eight acres, which was sold and conveyed by Perry Lorentz to said Jacob Bush by deed dated April 4, 1857; and that plaintiff has held said tract of one hundred and eighty five acres in actual possession under his deed from Bush continuously since March 12, 1859; that the land thus bought by plaintiff from Perry Lorentz runs with a line of plaintiff's tract of one hundred and eighty uve acres as a part of its boundary; that it is chieffy valuable for its timber; that defendant Allman has entered upon it, although it is in plaintiff's actual possession, and is catting and. removing the timber; that Allman's deed for twenty six acres is a cloud upon plaintiff's title to that part included in it, bought by plaintiff of Jacob Bush, as well as the part bought of Perry Lorentz.
Plaintiff prays that defendant Maggie Lorentz may be required to convey to plaintiff by proper deed the land purchased by plaintiff of her father, Perry Lorentz, or, in default on her part that a commissioner may be appointed and directed to so convey it in her name and stead; that he may have a decree against the estate of Perry Lorentz for the excess of purchase-money so paid by plaintif to Perry Lorentz for said land; that said deed from Maggie Lorentz to defendant All man may be declared null and void so far as it affects the right and title of plaintiff to said two tracts, or either of them; that defendant Allrnan be perpetually enjoined from cutting and removing timber from and other trespasses on the said land; and for general relief, etc.
On the 27th day of March, 1889, the injunction prayed for was awarded until further orders.
The defendant Maggie Lorentz filed her answer and supplemental answer duly verified by her oath, in which she admits that the land in controversy belonged to her father; that he departed this life leaving her his sole heir at law; that she sold and conveyed, the twenty six acres to the defendant Allrnan for a valuable consideration, as she had a perfect right to do; that the land this conveyed does not lap or encroach upon the boundaries of plaintiff's land, bought of Jacob Bush; that plaintiff never bought it of Perry Lorentz in any way, never paid any purchase-money, never had any actual possession; and she pleads and relies upon the statute of frauds and perjuries, upon the statute of limitations, and upon the plaintiff's laches; denying specifically and definitely all plaintiff's allegations of claim for specific execution.
Defendant Allman filed his answer of the same tenor and effect, denying specifically each allegation, and especially that plaintiff was ever in possession of said land under any contract of purchase from Perry Lorentz; and he denies that he ever had any notice or knowledge of plaintiff's claim, until after he had been put in possession thereof under said sale and deed to him from defendant Maggie Lorentz; and that he is and was a purchaser for value without notice, tie also pleads and relies upon the statute of limitations, plaintiff's laches, and the statute for the prevention of frauds and perjuries, etc., and he swears to his answer.
Defendant Post, sheriff of Lewis county and as such administrator of Perry Lorentz, deceased, answers that decedent left no personal estate; that none ever came to his hands to be administered; pleads the statute of limitations; denies each and every allegation, "and calls for full proof.
Defendant Maggie Lorentz departed this life before decree, and on scire facias the suit was revived against defendant L. L. Lorentz, her executor and sole devisee.
Plaintiff took the depositions of eighteen witnesses, defendants the depositions of twenty witnesses, and, the cause coming on to be heard on the 24th day of October, 1892, the Circuit Court pronounced in favor of plaintiff the decree for the specific execution of his contract of purchase, already mentioned as appealed from.
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