Page. v. Westfield Pharmacy INC.

• Decision Date: 24 March 1925
• Docket Number: (No. 5256.)
• Citation: 98 W.Va. 558
• Court: West Virginia Supreme Court
• Parties: R. L. Page et al. v. Westfield Pharmacy, Inc.

98 W.Va. 558

R. L. Page et al.

v.Westfield Pharmacy, Inc.

(No. 5256.)

Supreme Court of Appeals of West Virginia.

Submitted March 10, 1925.

Decided March 24, 1925.

Vendor and Pubchaser Purchaser of Land Taking a Conveyance From Claimant Not in Possession is Charged in Favor of Possessor With All Information Obtainable on Diligent Inquiry.

A purchase of real estate, contracting with a claimant not in possession, is put on inquiry by the fact that another is in possession of the property; and if he takes a conveyance from such claimant, he is charged in favor of the person so in possession with all the information such inquiry would have disclosed if diligently pursued.

(Vendor and Purchaser, DO Cyc. pp. 1744, 1746.)

« Noie:-Parenthetical references by Editors. C. J. Cyc. Not part of syllabi.)

Error to Circuit Court, McDowell County.

Action by R. L. Page and others against the AVestfield Pharmacy, Inc. Judgment for defendant, and plaintiffs bring error.

Affirmed.

Harman & Howard, for plaintiffs in error. F. C. Cook, for defendant in error.

Miller, Judge:

Plaintiffs prosecute this writ of error to a judgment of the circuit court against them in an action for the possession of a room occupied by defendant as a drug store. The verdict of the jury was found on a peremptory instruction to find for defendant.

At the time plaintiffs purchased the property demanded, defendant was in possession under a lease from D. C. Garner, their grantor. This lease, in writing, but not recorded, provided for a term of one year from the date thereof, April 15, 1923, and contained the following provision: "It is further understood and agreed that the parties of the second part, upon giving at least thirty days notice in writing, of their intention so to do to the party of the first part, are to have the right to renew this lease for a further term of three years from and after the 15th day of April, 1924, upon payment of rent for such further term at the rate of $225.00, Two. Hundred Twenty-nVe Dollars, per month, payable in advance on the first day of each calendar month."

It appears that the defendant had entered the premises in May, 1922, under a prior lease from Garner, dated April 15, 1922, and expiring April 15, 1923. This prior lease also contained a provision for thirty days notice of option to renew" for one year. On May 10, 1923, defendant wrote Gar- ner, advising him of its intention to renew the lease for a further term of one year, pursuant to the provisions of the lease then in force. This letter contained the following request: "We failed to give you the required thirty days notice of our intention to renew, but we did not start our business until May 15th, and had in mind the lease expired on that date. We would be glad if you would write us, stating this clause will not be binding in the future and we won't have to give this notice as you know we will give you ample notice if we decide to not renew at any time." Defendant introduced in evidence the following letter to it, dated April 14, 1923, and signed by D. C. Garner: "I am sending you herewith the new lease on my hotel Cleo Building, dated April 15, 1923, duly signed. Complying with your request I am willing to cancel the thirty days notice clause. So you may consider this clause not binding in the future." W. R. L. Craft, defendant's president and manager, testified that when Garner delivered to him the renewal lease and agreed to waive notice, he himself wrote the letter of April 14th, and had Garner sign it, because "we wanted to have it in writing so it would be a written contract. * * * It was a letter to make it in writing." He testified the letter was written the day it is dated, and was then signed by Garner, and that Garner was given a copy. He gives as his reason for being dilatory in notifying Garner of his intention to renew the first lease, and for soliciting the modification of the contract, that he had started in business May 15, 1922, and had it in mind the lease expired one year from that date, and was liable to make the same mistake at the expiration of the renewal.

By letter of April 7, 1924, defendant wrote plaintiffs as follows: "This is to advise you we expect to renew our lease on your Cleo hotel building covering a further term of three years with privilege of three years more as specified in the contract made with D. C. Garner. We think our second year will expire May 15th, and the contract provides we give you notice of our intention to renew." Under date of...