Newberry v. Webb et als.
| Decision Date | 22 November 1910 |
| Citation | 68 W.Va. 209 |
| Court | West Virginia Supreme Court |
| Parties | Newberry v. Webb et als. |
Contracts Sale of Lands Unilateral Contract.
The decree below is affirmed upon the rules and principles enunciated in Pollock v. Brookover, GO W. Va. 75, and other cases cited.
Appeal from Circuit Court, Logan County. Bill by Harmon Newberry against S. L. Webb and others. Decree for plaintiff, and certain defendants appeal.
Affirmed.
W. S. Laidley, Hubbard & Lee, Dillon & Nuckolls, and John T. Simms, for appellants.
Lilly & Shrewsbury and Campbell, Brown & Davis, for appellee.
By contract of May 19, 1905, and deed of October 14, 1905, the plaintiff, Harmon Newberry, obtained from the defendants, 0. T. Christian and others, heirs at law of Paren Christian, deceased, title to some seven tracts of land in Logan county, in all aggregating, according to survey, 2468.1 acres. The record shows that at the time of the contract plaintiff paid $8,000 on account of the purchase money, and the deed recites a consideration of $49,362.00, of which $25,000 was paid in cash, and for the residue, $24,362.00, the plaintiff executed his nine several notes for $2,706.89 each, to secure the payment of 'which a vendor's lien was reserved in the deed.
After the plaintiff had purchased these lands and. put his contract on record, but before obtaining his deed, S. L. Webb and J. M. Johnson, two of the appellants, through W. S. Laidley, their attorney, by letter of September 29, 1905, addressed to the plaintiff, asserted a claim of right to these lands, under certain alleged contracts represented in the letter to be of record, and that they had made sale thereof at the price of $25 per acre. The date of said contracts, and the deed book where recorded, not being referred to in the letter.
No notice of this letter was taken by Newberry, but having fully executed his contract with the Christian heirs, and obtained his deed for the lands, on August 10, 1906, he instituted this suit against Webb, Johnson and Harper and the grantors in his deed, to cancel and annul as clouds upon his title the Webb, Johnson and Harper contracts. i
Of the contracts under which Webb and Johnson claim, the, first purports to be dated April 25, 1903, and to be made by G. T. Christian and others with Webb, Johnson and Harper; the second, bearing the same date, by Zerilda Ferrell and husband with said Webb, Johnson and Harper; the third, dated April 30, 1903, by Spicie E. Stanley and husband 'with Webb and Johnson only. Thus by executing these several contracts, all the heirs at law of Paren Christian joined therein, for, with the exception of the last, omitting the name of Harper, and calling for $15.00 per acre, instead of $17.50 per acre called for in other contracts, and varying somewhat in other particulars, not material in this controversy, they contain in other respects substantially the same terms and conditions.
On July 16, 1903, Webb, Johnson and Harper notified the Christian heirs by registered mail, that they were ready and desirous of accepting a conveyance of said land, and to make the payment called for by said contract, as soon as they, the Christian heirs, should have a survey made, the area of the land ascertained, and delivered to them with proper deed.
It clearly appears that Webb, Johnson and Harper were promoters in making these contracts, and depended on making sale of the lands to others as a means of executing the contracts on their part.
The material provisions of the first two contracts, and because of its special terms controlling, wTe think, the third, and on which the rights of the appellants depend, are as follows: Another provision, somewhat pertinent, is as follows: ...
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