Mundy's Ex'rs v. Garland Et Ux

• Decision Date: 12 November 1914
• Citation: 116 W.Va. 922,83 S.E. 491
• Parties: MUNDY'S EX'RS. v. GARLAND et ux.
• Court: Virginia Supreme Court

83 S.E. 491

116 W.Va. 922

MUNDY'S EX'RS.

v.GARLAND et ux.

Supreme Court of Appeals of Virginia.

Nov. 12, 1914.

1. Action (§ 24*)—Equitable Relief in Action at Law.

Under Code 1904, § 3299, providing that in an action on contract defendant may file a plea setting up failure of consideration, fraud, breach of warranty, or any other matter entitling him to recover damages at law, or to relief in equity against the contract, a plea in an action on a bond for the purchase price of real estate, averring that plaintiff had no authority to sell, that plaintiff had no title to an undivided third interest in the land, that the land was subject to liens of record, that the agreement sued on was a mere option to sell, and that plaintiff had refused a tender of the price, and elected not to sell, did not seek a rescission and reinvestment of the title in the vendor, within the rule that such a plea is not permissible under the statute.

[Ed. Note.—For other cases, see Action, Cent. Dig. §§ 153-155; Dec. Dig. § 24.*]

2. Vendor and Purchaser (§ 308*) — Performance of Contract—Title of Vendor.

A vendor, in order to recover for purchase price, must himself be able to keep and perform the agreement on his part as to title; but it is not necessary to his recovery that he be able to convey such title when he contracts, although he must be able to do so at the time for performance.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent Dig. §§ 862, 877-899; Dec. Dig. § 308.*]

3. Vendor and Purchaser (§ 145*) — Performance of Contract—Tender by Purchases.

Under a contract giving G. an option to purchase real property at any time before a specified date, the vendor, after the purchaser's tender of payment and demand for a deed, was entitled to a reasonable time to deliver the deed.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. § 276; Dec. Dig. § 145.*]

4. Vendor and Purchaser (§ 134*) — Construction of Contract—Title.

Under a contract for the sale and purchase of land to be conveyed by warranty deed without incumbrances, the purchaser was entitled to a conveyance of a good record title free from incumbrance; but, where the contract does not require a perfect record title, he as a rule is not entitled to such record title, if the title is in fact good.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 23S, 250-254, 258; Dec. Dig. § 134.*]

5. Vendor and Purchaser (§ 308*) — Performance of Contract—Vendor's Title.

Under a contract for the sale and purchase of land, entitling the purchaser to a conveyance of a good title free from incumbrances, but not in terms entitling him to a good record title, he could not defeat a recovery for breach of contract on the ground that the record did not show that the vendor had a good title, when in fact he did, and when such apparent defect in the title was not actually known to either party, and did not in any way affect their action.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 862, 877-899; Dec. Dig. § 308.*]

6. Vendor and Purchaser (§ 315*)—Action for Price—Burden of Proof.

Where a contract to purchase land or to-pay the difference between the fired contract price and the amount realized at a public sale

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes-entitled the purchaser to a title free from incumbrances, the vendor, in an action for the difference, had the burden of proving that incumbrances had been satisfied or released before the time for sale.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent Dig. §§ 928-931; Dec. Dig. § 315.*]

7. Vendor and Purchaser (§ 267*) — Vendor's Lien—Discharge.

Where a vendor's lien is retained for the benefit of the vendor's creditors, a subsequent release of the lien by the vendor was not evidence of a discharge of the debts secured.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent Dig. §§ 751-758; Dec. Dig. § 267.*]

8. Vendor and Purchaser (§ 317*) — Vendor's Lien—Satisfaction.

Whether such debts had been satisfied held a question for the jury upon all the evidence.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 934-937; Dec. Dig. § 317.*]

9. Evidence (§ 131*)—Relevancy—Similar Conditions.

In a vendor's action on the purchaser's contract to pay the difference between a fixed price and the price that the property would bring at a public sale, evidence that the property later sold for a less price than it did on the first sale was inadmissible on the question as to whether the sale had been properly advertised, where the similarity of conditions at the two sales did not appear.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 399-402; Dec. Dig. § 131.*]

10. Appeal and Error (§ 1059*)—Harmless Error—Exclusion of Evidence.

Error, if any, in the exclusion of such evidence, was not prejudicial to the vendor, where the court at his request properly instructed that the only question as to the sufficiency of the advertisement was his good faith in selecting the method of advertisement.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4208; Dec. Dig. § 1059.*]

11. Vendor and Purchaser (§ 330*)—Vendor's Action for Breach—Liability.

Under a contract whereby, in consideration of the extension of a contract for the sale and purchase of land, the purchaser undertook to purchase by a certain day or to pay the vendor the difference between the purchase price and the proceeds of the land at public sale, the purchaser, who did not exercise his option to purchase by an offer in good faith to perform his contract and was not prevented from doing so by any act or default of the vendor, after advertisement and sale of the property at public sale for less than the contract price, was liable for the difference.

[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 953-956; Dec. Dig. § 330.*]

Error to Circuit Court, Botetourt County.

Action by W. P. Mundy and others, executors of the estate of James Mundy, deceased, against J. L. Garland and wife. Judgment for defendants, and plaintiffs bring error. Reversed, and remanded for new trial.

This is the second time this case has been to this court. Upon the former writ of error the question involved was whether or not a motion under the provisions of section 3211 of the Code would lie upon the contract sued on in this case, and It was held that it would reversing the judgment of the circuit court and remanding the case for further proceedings.

The litigation grows out of two agreements, entered into, respectively, on the 2d and 4th of April, 1910, of which the following are copies:

"This agreement, made between W. P. Mundy, A. H. Mundy and W. P. Barley, executors of the estate of James Mundy, deceased, parties of the first part, and J. L. Garland, party of the second part, witnesseth: That the said parties of the first part have this day bargained and sold to J. L. Garland, party of the second part, the following property, namely: Roller mill, known as the Buchanan Roller Mills, formerly owned by H. M. Swartz, same having been recently purchased by James Mundy, together with all the real estate conveyed to said Mundy bv H. M. Swartz about last of January, 1910.

"The said parties of the first part agree that there is to be no incumbrances on same, all taxes to be paid in full, including 1909. The said J. L. Garland is to pay taxes for 1910. The said party of the second part agrees to pay to said parties of the first part the sum of nine thousand five hundred dollars ($9,500.00) cash in hand when warranty deed is made to said party of the second part by the parties of the first part.

"The said parties of the first part agree that there is to be no reservation in this deed, except as concerning lease of J. E. Parger. The said J. L. Garland is to receive rents from April 1st."

"This contract, made and entered into this 4th day of April, 1910, by and between W. P. Mundy and A. H. Mundy and W. P. Barley, executors of James Mundy, parties of the first part, and J. L. Garland and Mattie V. Garland, parties of the second part, witnesseth: That whereas, the said parties of the first part did on the 2d day of April, 1910, enter into a contract of sale of the following property: 'Roller mill, known as the Buchanan Roller Mills, formerly owned by H. M. Swartz, same having been recently purchased by James Mundy, together with all the real estate conveyed to said James Mundy by H. M. Swartz, about last of January, 1910'—at the price of $9,500.00 cash on the delivery of a warranty deed, by the parties of the first part, with the said J. L. Garland; and whereas, the said J. L. Garland desires an extension of time within which to comply with said sale and purchase by him of the property aforesaid:

"Now, therefore, this contract witnesseth that for and in consideration of the premises, and in consideration of the said Mattie V. Garland becoming a party with the said J. L. Garland hereto, and in the further consideration of $1.00 cash in hand paid, the said parties to this contract agree as follows:

"(1) That the said executors are to proceed to advertise said mill property to be sold at public auction in such manner as to them may seem best on May 14, 1910, on such terms as they may deem proper, and if at said sale the said property described in the contract dated April 2, 1910, and referred to in this contract, shall bring less than $9,500.00, then in that event the said J. L. Garland and Mattie V. Garland hereby agree to make up the difference between price it may bring at the said public sale and the said agreed price of $9,500.00, together with 6 per cent, interest thereon from April 2, 1910, and all costs and expenses incurred by said executors in and about advertising said property and sale thereof. In other words, the said J. L. and Mattie V. Garland hereby agree to make up any deficiency in said purchase price at said public sale so as to net

*For other...