A.NDERSON v. SNYDER

• Decision Date: 28 April 1883
• Citation: 21 W.Va. 632
• Court: West Virginia Supreme Court
• Parties: A.NDERSON v. SNYDER

21 W.Va. 632

A.NDERSON

v.SNYDER

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1888

Decided April 28, 1883,

1. A court of equity will not decree a cancellation of a contracj for the sale of land between vendor and vendee, in the absence of mistake, accident or fraud, where the contract is not illegal Of contrary to public policy, merely on the ground of deficiency in the quantity of land sold, where compensation for such deficiency, can be made to such vendee. (p.642.)

2. Where a vendee has conveyed to the vendor certain lands, in exchange for other lands sold to such vendee and the vendor lias conveyed the lands so conveyed to him, to a third party, and he is unable to reconvey said lands to such vendee, it is error in the court to decree a cancellation of said deed, in a suit brought by said vendee against said vendor and his alienees of said land, upon the consent of said vendor, even where his said alienees fail to appear, in the circuit court or in this Court to resist the same. (p. 640.)

3. If it appear to this Court that such decree of cancellation so entered by the consent of such vendor, will be detrimental to the interests of any of the defendants, it will, in accordance with its ninth rule of practice "consider the whole record as before it and will review the proceedings in whole or in part, in tho same manner, as it would do, were such appellee to bring tin1 same before it by appeal, unless such error shall be waived by such appellee." (p. 641.)

4. If the vendor by his written contract agrees to convey for a specified price, a tract of land described by metes and bounds or otherwise, with the words added, containing a specified number Of acres, or that number of acres "more or less," this on the the face of such contract is a contract not by the acre, but in gross and without any implied warranty of the quantity, and not being ambiguous cannot be explained, modified or altered by any kind of parol testimony. And in such a case, if there was no fraud in either party, a court of equity will allow no abatement or compensation on account of a deficiency in the quantity of said land. (p. 647.)

5. Although the sale be in gross, and not by the acre, if the vendor, to induce the vendee to purchase, falsely represents to him that the land contains a specified Dumber of acres, or that number "more or less," and the vendee relying on the truth of such representation, is thereby induced to purchase the same as containing about that number of acres, at a price he would not otherwise have given for it, such representation even If innocently made, may amount to an Implied warranty of the number of acres, and the vendor may be compelled to account to the vendee for a deficiency in the number of acres, (p. 648.)

6. If such false representations of such vendor be unqualified, as made upon his personal knowledge, and the vendee believe and rely on them as true, which he has a right to do, it ought prim a fade to be regarded, that the vendee was induced to pay, or to agree to pay the price named in the contract because of the statement contained in it of the number of acres in the tract of land sold, and the vendor must in the absence of all proof, be regarded as guilty of a fraud upon the vendee, and for this reason a court of equity will require the vendor to make to the vendee an abatement from his purchase-money if not paid, or if paid, compensation for such deficiency, (p. 654.)

7. The measure of such compensation or abatement is the contract price by the acre, of the land sold, if the same can be ascertained, and if not ascertainable, then the average value by the acre of the land sold, must betaken as the measure of such compensation or abatement, (p.654.)

8. Sections 22 and 28 of chapter 130 of the Code of West Virginia made no material change in the common law rule of evidence as to husband and wife giving evidence, for or against each other, in a cause in which they are parties, except in an action or suit between husband and wife. Rose & ' Co. v. Jirowny 10 W. Va. 122 and Hill ct ux. v. Proctor, 11 W. Va. 59. (p. 644.)

9. In the fifth exception to section 28 of chapter 130 of the Code of West Virginia, the words in uan action or suit between husband and icifv" are to be construed as synonymous with the words, "a controversy between husband and wife," and therefore neither the husband or wife was a competent witness for or against each other in a controversy between them, and a third party in any action, snit or other proceeding, although they may severally stand therein, as plaintiff and defendant (p.645.)

10. A case in which the decrees of the circuit court appealed from, are reversed, and the appellant decreed to pay the costs of the appeal to an appellee, as the party substantially prevailing in the appellate court.

Appeal from and supersedeas to two decrees ot the circuit court of the county of Greenbrier, rendered respectively on the 12th day of June, 1880, and on the 11th day of Novem- ber, 1880, in a cause in said court then pending wherein Jennie Anderson was plaintiff, and William R. Snyder was defendant, allowed upon the petition of said Snyder.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decrees appealed from.

Woods, JuiKtE, furnishes the following statement of the case:

In 1878 Jennie Anderson, the wile of Charles S. Anderson, filed her bill in the circuit court of Greenbrier county against her said husband, William R. Snyder, Rebecca A. Hunter and Fanny Hunter, alleging that on the 29th of June, 1875, her husbuil owned an undivided half of a tract of two hundred and eighteen acres of land, and that she owned one hundred and sixty acres ot land worth at least forty-five dollars per acre, as her separate estate, and that all of said lands lie in Greenbrier county in this State; that said William R. Snyder on that day claimed to be the owner of two tracts ot land in Roanoke county, Virginia, one of which was known as the "Margaret Johnson tract," which he represented to contain ninety acres, and to be worth sixty dollars per acre, and the other known as the '"woodland tract," which he represented to contain six hundred acres and to he worth two dollars per acre; that said Snyder desiring to obtain her said one hundred and sixty acres of land, fraudulently and collusively combined with her said husband to deceive and mislead her in relation to the quantity, quality and value of said Roanoke lands, which she had never seen, and of which she had no personal knowledge: that said Snvder deceitfully, willfully and fraudulently misrepresented to her that the said "Margaret Johnson tract," contained ninety acres and was worth sixty dollars per acre: that the "woodland" contained six hundred acres and was worth two dollars per acre, that believing these representations to be true, and relying exclusively upon these representations as to the character, location, quantity and value of said lands made to her by said Snyder and her said husband, whom he had paid to aid in misleading and deceiving her, she was induced to enter into an agreement with the said Snyder on the said:29th of Juno, 1875, whereby he hound himself to convey to her "urith deed of general warraMy free from rmvrmbraince" said two parcels of land in Roanoke eountyybne containing ninety acres, and the other six hundred acres and to pay toher eight hundred dollars, in three installments, the last of which became due on the 1st of October, 1877, and all to hear interest from the 1st of October, 1875; that she and her said liusband by deed dated the 29th of June, 1875, conveyed with covenants of general warranty to the said Snyder, her said one hundred and sixty acres, and her busband's said moiety of said two hundred and eighteen acres, "in consideration of certain lands and money, particularly set forth and described in said written agreement" with said Snyder; tbat in said deed a vendor's lien was retained on both of said tracts ot land for the performance of said-written agreement. Said bill further alleges that tbe said Snyder sold to ber both of bis said tracts of land by the acre; that she agreed to take, and did take the said "Margaret Johnson tract" at sixty dollars and the "woodland" at two dollars per acre: that since ber purchase she has had the said lands surveyed, and has ascertained that said "Johnson tract" contains only eighty-two acres, and the "woodland" only five hundred and sixty-five acres; thar the said "Johnson" land was not worth thirty dollars and the "woodland" not more than one dollar per acre; that no part of said eight hundred dollars has been paid to her, but Snyder claims he has paid the same to her husband, who she avers bad no authority to receive the same: that her said one hundred and sixty acres on the 29th of June, 1875, was worth seven thousand two hundred dollars, while said Roanoke lands on that day, were not worth more than three thousand five hundred dollars, and that instead oi eight hundred dollars she ought to have received three thousand seven hundred dollars as the difference in the value of said hinds. Said bill further alleges that said Snyder on the 27th of July, 1875, by deed of that date conveyed the said one hundred and sixty acres, and said moiety of said two hundred and eighteen acres to tbe said Rebecca A. Hunter and Fanny Hunter, and thereupon prays, tbat the contract and deed of the 29th of June, 1875, between herself and husband and said Snyder, may be canceled and annulled: that said Snyder be compelled to pay ber the real difference in value between her one hundred and sixty acres, and the Roanoke lands; that she have compensation for the deficiency in the number of acres in said two tracts at the contract price; that she may have a decree for said eight hundred dollars, with its interest, that said lands conveyed to Snyder may may he sold to satisfy, her demands, and in case that said deed and contract: can not be canceled, that...