Napper v. Rice., (No. 9579)
| Decision Date | 31 October 1944 |
| Docket Number | (No. 9579) |
| Court | West Virginia Supreme Court |
| Parties | Nolen Napper v. Lucy Rice et al. |
A court in chancery is not bound to accept as true the testimony of an uncontradicted witness, whose admissions, on cross-examination, and other conceded facts in the record, tend to make such testimony questionable.
Where one of the parties to a contract has become insane, thus depriving the court of the testimony of both parties thereto, stronger evidence of third parties will be required to justify a decree on such contract than where the parties themselves could give evidence.
A deed absolute on its face will not be decreed to be a mortgage where it is not admitted or clearly shown by the evidence that at and after the time of its execution, a debt or other obligation existed, to be paid or performed by the grantor, to or for the benefit of the grantee.
Where, in a lease of real estate, the lessee is given a right to purchase the leased premises within a time and upon terms therein stipulated, equity will not compel the conveyance of the land to the lessee upon a claimed oral acceptance of the option, and proffer or performance by the lessee, unless the evidence thereof is clear and unquestionable.
Mere holding over by a lessee after the expiration of a lease containing an option for the purchase of the premises during its term, but no provision for an extension or renewal of the lease, does not extend the time within which the right to purchase may be exercised, particularly where it appears that for several months preceding the institution of the suit the occupancy of the premises by the lessee was upon terms differing from those of the original lease.
In a suit by a lessee to enforce specifically an alleged contract for the conveyance of real estate claimed to have arisen by the acceptance of an option to purchase embodied in the lease, on dismissal of the bill it is error to order the lessee to surrender the premises, where no such cross-relief was asked by the defendants in their answer or otherwise.
Appeal from Circuit Court, Raleigh County.
Suit by Nolen Napper against Lucy Rice and others for specific performance of an alleged contract to convey land or in the alternative to have a lease declared a mortgage and to redeem. From a decree for defendants, plaintiff appeals.
Modified and affirmed.
J. S. Butts and Ashworth & Sanders, for appellant. Ned H. Ragland, O. L. Hedrick, and J. V. Brennan, for appellees.
Rose, President:
Prior to February 17, 1937, the plaintiff, Nolen Napper, was the owner of a lot in the City of Beckley, on which there were two dwellings, one of four, and the other of three, rooms. On that date the property was covered by a deed of trust, dated August 1, 1934, to secure W. L. Foster in the payment of seventy-one notes of even date therewith, with interest, seventy of which were for twelve dollars each, payable in from one to seventy months after date, and one note for ten dollars, payable seventy-one months after date. Under date of February 17, 1937, the plaintiff and his wife conveyed this property to John Henry Rice for a recited consideration of seven hundred dollars, and, by a writing bearing the same date, Rice and his wife leased the same property to the plaintiff for the term of two years, at twelve dollars a month, and agreeing that, within that term, upon payment to the lessor of seven hundred dollars, with interest, and any and all taxes, insurance, assessments, and other proper costs and expenses, he would convey the property to the plaintiff, and allow as credits on said purchase price "all monthly payments, that have been made as herein provided."
On December 1, 1942, the plaintiff instituted this suit. The bill alleges inter alia, that the plaintiff had become delinquent in the payment of the Foster notes, and that John Henry Rice agreed "that if this plaintiff would convey said lot to the said John Henry Rice that he would pay off and discharge the obligations of the said W. L. Foster in said deed of trust upon said lot, and would hold said lot in his, John Henry Rice's own name and would re-convey said lot to this plaintiff upon the payment of the amount of money, with interest, paid out by the said John Henry Rice to the said W. L. Foster; that in pursuance to said agreement this plaintiff did grant and convey unto the said John Henry Rice, the said lot and parcel of land, * * *; that the said John Henry Rice, pursuant to said agreement did pay off and discharge the notes and obligations due W. L. Foster under said deed of trust, and did secure from the said W. L. Foster a good, proper and apt release, * * * that said John Henry Rice and his wife, Ida May Rice, by written agreement or lease dated February 17, 1937, between the said John Henry Rice and Ida May Rice, his wife, and this plaintiff, agreed to rent said premises, including the house thereon situate to this plaintiff, and further agreed with this plaintiff in said agreement that they would make, execute and deliver unto this plaintiff a deed with GENERAL WARRANTY of title, unto said premises, at any time within a period of two years from the date of said agreement, upon the payment of the sum of SEVEN HUNDRED DOLLARS ($700.00), with interest, taxes, insurance, assessments and proper costs and expenses in connection therewith; * * * that before the two year period had expired from the date of said agreement or lease, this plaintiff tendered and offered to pay to the said John Henry Rice the full amount of the purchase price, together with interest, taxes, assess- merits and other costs and insurance as provided for in said agreement or lease, which the said John Henry Rice then and there refused to accept, and told this plaintiff that he did not need his money, and that he preferred it to be paid in small payments. * * *"; and that the plaintiff "believes he had paid in full for said premises as agreed upon between this plaintiff and the said John Henry Rice; that if any amount remains unpaid, according to the terms of said agreement, that this plaintiff is able, willing and ready to complete the payment of any balance remaining due and unpaid upon said premises." The prayer is for an accounting between the plaintiff and defendants to ascertain the amount, if any, due from plaintiff; and for a deed to the premises to be executed to the plaintiff by a special commissioner appointed by the court.
The bill, thus, appears to have been framed on the alternative theories: (1) that the plaintiff, in his lease, was given an option to purchase the property involved, that he accepted said option and offered payment in full in proper time, and now seeks specific performance of contract to convey; or (2) that the deed to Rice, the lease back to plaintiff, and other contemporaneous agreements between them, constituted a mortgage from which he now wishes to redeem the property.
John Henry Rice being insane at the time of the institution of the suit, his duly appointed and qualified committee was made a party defendant, as well as his infant children as heirs of his wife, who, at that time, was deceased. The defendants filed a demurrer to the bill of complaint, which was overruled, of which action by the court no complaint is made. The joint answer of this committee and of the guardian ad litem of the infant children denied all allegations of the bill tending to establish a mortgage or to show legal acceptance of the option to purchase. The defendant also filed a special plea, charging the plaintiff with laches in failing to assert his claims until after the insanity of John Henry Rice and the death of his wife, to which the plaintiff filed a special replication setting up that from January, 1939, until August, 1942, he was incapacitated for the transaction of business, and was in certain federal hospitals for veterans, and alleging that he had promptly instituted this suit upon his discharge therefrom.
Evidence was taken at the bar of the court, and, upon the final hearing of the cause, the bill was dismissed, and a decretal judgment entered against the plaintiff for one hundred and fifty dollars as for unpaid rent for the premises, and awarding the defendants possession of the premises. From this decree the plaintiff was awarded this appeal.
The errors assigned are: (1) that the deed from the plaintiff to Rice was not held to be a mortgage; (2) that the option to purchase was not held to have been legally accepted within the time stipulated therefor, or was continued by the implied extension of the lease by the acceptance of rent at the same rate after the expiration of the lease; (3) that the court heard evidence of personal transactions between the plaintiff and the insane grantee, Rice; (4) that the court entered the order evicting the plaintiff from the premises, whereas no such relief was asked by the defendants, or justified by the pleadings and evidence in the case.
No evidence whatever was introduced relating to the transactions between the plaintiff *and John Henry Rice prior to the alleged tender of the price for repurchase in November, 1938. Rice, himself, was insane and could not testify; his wife was dead, and the plaintiff and his wife were barred of giving evidence. Significantly, the scrivener of the deed and lease was not called; nor was Foster, the holder of the notes secured by the former deed of trust, each of whom might have given valuable evidence. There is, therefore, no evidence as to the negotiations between the plaintiff and Rice leading up to the deed and lease, nor evidence as to who paid the Foster notes, nor as to the amounts so paid. These notes were apparently exhibited to the court, but are not in the record.
The deed of trust indicates that there were seventy twelve-dollar...
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Napper v. Rice
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