Nuttall v. Mcvey

• Decision Date: 21 January 1908
• Citation: 60 S.E. 251,63 W.Va. 380
• Parties: NUTTALL, et al. v. McVEY et al.
• Court: West Virginia Supreme Court

60 S.E. 251

63 W.Va. 380

NUTTALL, et al.

v.McVEY et al.

Supreme Court of Appeals of West Virginia.

Jan. 21, 1908.

1. Acknowledgment — Validity — Examination of Married Woman.

A certificate, made in 1808, of acknowledgment by a married woman of a deed failing to state that on privy examination she acknowledged the deed, renders the deed void as to her.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Acknowledgment, § 215.1

2. Vendor and Purchaser—Bona Fide Purchaser—Notice.

One who takes a conveyance of land in actual possession of a prior purchaser under an executory contract of sale from the same vendor is a purchaser with notice of the right of such prior purchaser, and in equity holds the legal title as trustee for such prior purchaser, and equity will compel such second purchaser to convey the legal title to the prior purchaser.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 48, Vendor and Purchaser, §§ 540-502.]

3. Specific Performance—Laches.

A purchaser in actual possession of land under an executory contract of sale will not be barred by laches from enforcing his right to a conveyance.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 44, Specific Performance, § 337.]

(Syllabus by the Court.)

Appeal from Circuit Court, Fayette County.

Bill by L. W. Nuttall and others against

T. C. McVey and others. Decree for defendants, and plaintiffs appeal. Reversed.

Simms & Enslow and Walker & Summer-field, for appellants.

Dillon & Nuckolls, for appellees.

BRANNON, J. A tract of about 300 acres of land was owned by W. S. McVey under grant to him by the state of Virginia, August 3, 1841. In 1862 W. S. McVey sold this land to J. P. Cavendish for $600, $100 down and the balance in five notes of $100 each, payable annually. McVey made to Cavendish a title bond, stipulating for conveyance of the legal title on payment of the purchase money, and placed Cavendish in actual possession of the land at the date of the title bond, and Cavendish made large improvements on the land, and he and those claiming under him have ever since the date of the title bond been in actual possession of the land continuously. W. S. McVey died In 1864, without having made a deed to Cavendish in execution of the title bond. McVey died intestate, leaving an only child as his heir, Mary Ann, who married Henry Patterson. On the 18th day of March, 1868, said Patterson and wife made a deed conveying said land to J. F. Cavendish, reciting the consideration as $600, acknowledging its payment, and reciting that they were the legal heirs of W. S. McVey. By deed dated 3d day of August, 1903, Mary Ann Patterson, then a widow, conveyed to her son-in-law, T. C. McVey, the same land, for the consideration of $75. This land came to the ownership of John Nuttall, and he died, having by his will devised it to his children, L. W. Nuttall, Martha Taylor, Susanna Todd, and E. A. McGaffey. In May, 1905, these heirs (devisees) brought a chancery suit in the circuit court of Fayette county against T. C. McVey and others, setting up their right to the land and certain mineral interests therein under said Cavendish, and praying that the deed made by Mary Ann Patterson to T. C. McVey be canceled as a cloud upon their title, and that, if the court should hold as void the deed from Henry Patterson and wife to Cavendish, then Mary Ann Patterson be compelled to convey the land to the plaintiffs by way of specific performance of the title bond made by W. S. McVey to J. F. Cavendish, and for general relief. This land was leased for coal mining by John Nuttall, some of it in his lifetime, and other parts by his heirs, to the Nuttallburg Coal & Coke Company, and John Nuttall built a railroad through it, which was leased to the Chesapeake & Ohio Railway Company, and, said coal company and railway company being in possession under the Cavendish title, T. C. McVey brought an action of ejectment against them, and the plaintiffs in this chancery suit, in addition to the other relief prayed for as above mentioned, asked an injunction against the prosecution of the action of ejectment The decree in the case wholly dismissed the plaintiffs' bill, without relief.

The first question up is as to the validity of the deed from Mary Ann Patterson and her husband to Cavendish. Of course, if that deed and its recordation are valid, the title of the plaintiffs is beyond question, and they, being in possession, could maintain this chancery suit to remove that deed to McVey as a cloud on title. The deed dated March 18, 1868, from Patterson and wife to Cavendish, is void because of a bad certificate of acknowledgment as to Mary Ann Patterson, then a married woman, by the law then in force. That certificate states that Patterson and wife appeared before the recorder, "and acknowledged the same to be their act and deed, and she, the said Mary Ann Patterson, wife as aforesaid, being examined by me separate and apart from her said husband, and having the deed aforesaid fully explained to her declared that she had willingly of her free will signed, sealed, and executed the same, and that she wished not to retract it" That certificate is bad and renders the deed void under several decisions of this court. McMulIen v. Eagan, 21 W. Va. 233; Laidley v. Land Co., 30 W. Va. 505, 4 S. E. 705. We are asked to reverse the holdings in these cases. They have been so long recognized and are rules of property, and we decline to reconsider this matter.

The deed, being void, by no means loses the title of the plaintiffs. Cavendish and those claiming under him have had possession of the land since 1862, and, when T. C. McVey in 1903 took a deed from Mary Ann Patterson, he actually knew, as he himself says, not only of the void deed, but he knew, as he himself says on the witness stand, that Cavendish and these under him had had possession for 30 years. We concede that this actual knowledge of that void deed would not affect him with notice of the right of Cavendish. Central Land Co. v. Laidley, 32 W. Va. 134, 9 S. E. 61, 3 L. R. A. 826, 25 Am. St Rep. 797. But the actual possession under the Cavendish title bond was notice in law to T. C. McVey of the rights of persons under that title, and put upon him the duty of inquiry of those in possession to ascertain all their rights. Frame v. Frame, 32 W. Va. 464, 9 S. E. 901, 5...