Payette Land Co v. Louisville & N. R. Co

• Decision Date: 25 June 1896
• Citation: 24 S.E. 1016,93 Va. 274
• Court: Virginia Supreme Court
• Parties: PAYETTE LAND CO. v. LOUISVILLE & N. R. CO.

24 S.E. 1016

93 Va. 274

PAYETTE LAND CO.

v.LOUISVILLE & N. R. CO.

Supreme Court of Appeals of Virginia.

June 25, 1896.

Publication op Summons—Unknown Paeties— Affidavit — Answer — Vendor's Lien — Enforcement—Corporations—Conveyances to— Statute of Mortmain.

1. Code, § 3230, provides that where the bill states that there are or may be persons interested in the subject to be disposed of whose names are unknown, and makes such persons parties by the general description of "parties unknown, " on affidavit of the fact that said parties are unknown, an order of publication may be entered against such unknown parties. Held, that an affidavit by the local attorney of a corporation complainant, reciting that the parties are unknown to affiant is sufficient

2. In a suit to enforce a vendor's lien, a plea setting forth the names of all persons interested, alleged in the complaint to be unknown, is immaterial, and therefore is properly rejected.

3. In a suit to enforce a vendor's lien, complainant is entitled to a personal judgment for the full amount of the unpaid purchase price, and not merely for the balance remaining due after crediting the proceeds from the sale of the land.

4. Code 1887, § 1073, limiting the quantity of land to be held by railroads, does not render void a conveyance in excess of such quantity; and the company may, before proceedings are instituted by the state to forfeit its title, convey an indefeasible title to another.

5. Where land is conveyed to a corporation in excess of the quantity it is authorized by its charter to hold, the only remedy is by proceedings against the corporation to forfeit its charter.

6. The statute of mortmain is not in force in Virginia.

Appeal from circuit court, Wise county; H S. K. Morison, Judge.

Bill by the Louisville & Nashville Railroad Company against the Payette Land Company and others. There was a decree for complainant and the defendant land company appeals. Affirmed.

Burns & Pulton, J. H. Fulton, R. Tate Irvine, and R C. Minor, for appellant.

J. F. Bullitt Jr., and H C. McDowell, Jr., for appellee.

KEITH, P. On the 24th of February, 1888, James M. Flanary and wife conveyed to H. M. Smith, agent a tract of land in Wise county, Va., in the town of Big Stone Gap, containing 330 acres, for the sum of $35,000, of which $12,000 was paid in cash, and the residue to be paid in installments on or before February 24, 1889. In this transaction, Smith was acting as the agent for the Louisville & Nashville Railroad Company, and the money received by him was the money of that company. By deed dated March 8, 1890, the Louisville & Nashville Railroad Company conveyed to the Fayette Land Company this tract of land, with a reservation of a right of way and depot site, for the consideration of $180,000, —$60,000 to be paid in cash; $60,000, with 6 per cent. interest to be paid on the 8th day of March, 1891; and $60,000, with like interest, to be paid on the 8th day of March, 1892. For the deferred payments, the Fayette Land Company executed its promissory notes, and the vendor retained a lien on the land conveyed. The deed contained covenants of general warranty; that the property conveyed was free from incumbrance; that the grantor had a right to convey; that it had done no act to incumber the same; for quiet possession; and for further assurances. The deed recites that it is the same land conveyed by Flanary and wife to H. M. Smith, agent described in the deed of May 10, 1888, and H. M. Smith united in the deed for the purpose of conveying to the Fayette Land Company any interest that he had in said land. This deed was duly acknowledged, and was recorded in Wise county, June 2, 1890. Flanary and wife have been paid in full, but the Fayette Land Company has never paid anything beyond the cash payment of $60,000. On the 2d day of December, a subpoena In chancery was Issued by the clerk of the circuit court of Wise county, summoning the Fayette Land Company, Dillard, Robinson, Ould, and Marston to appear and answer a bill to be exhibited against them by the Louisville & Nashville Railroad Company. At the time of the institution of the suit, an affidavit was made before a notary public by H. C. McDowell, one of the attorneys of the Louisville & Nashville Railroad Company, reciting that "there are numerous persons, as affiant believes, who have bought from the Fayette Land Company portions of the 330 acres of land in Big Stone Gap, Va., who are, except as stated in the original hill of complainant in the above-styled cause, to affiant unknown, and also that there are and may be other persons interested in and having liens on parts of said land who are unknown to affiant" The parties named in the subpoena, and others, under the description of "parties to the defendant unknown, " are made defendants to the bill. The bill sets out the facts as they have been heretofore stated with respect to the purchase of the land by the Louisville & Nashville Railroad Company, and its subsequent sale to the Fayette Land Company; avers that the deferred payments evidenced by the promissory notes of the Fayette Land Company, though due and often demanded, have never been paid; that the defendant has never paid any state, county, or town taxes or levies on the land, or any part thereof; and that the land is now incumbered by the liens of the commonwealth of the county of Wise, and of the town of Big Stone Gap, for delinquent taxes and levies. It charges that, a short time after the date of its conveyance to the Fayette Land Company, the property was laid off into streets, alleys, blocks, and lots, and that a considerable number of the lots were sold to various parties. The prayer of the bill is that the defendant company may be required to pay the sum of $120,000, with interest thereon, in accordance with its contract. The defendant company appeared, and filed several motions, a plea, demurrer, and answer to the bill; and thereupon such proceedings were had that the circuit court of Wise county entered a decree on the 18th day of April, 1893, in favor of the plaintiff for $120,-000, with interest, and referred the cause to a commissioner to take an account of the liens pending upon the land in the bill and proceedings mentioned. From this decree, an appeal was allowed by one of the judges of this court.

The first assignment of error is to the refusal of the court to remand the cause to rules at the April term, 1893, because the case was not properly matured, the affidavits as to the unknown parties not being sufficient The specific objection taken to the affidavit is that it fails to state that said parties are unknown, but merely declares that they are unknown to affiant. This objection is not well taken. An affidavit is only expected to declare what is known to the party making it, or, where an absence of knowledge is required to be shown by the affidavit as in this case, that there is absence of knowledge upon the part of the affiant It would be impossible for any one to say that parties were unknown to all the world. It is sufficient if they are unknown to the affiant, and the affiant is one who is by law authorized to make the required affidavit. The language of the statute (section 3230 of the Code) is: "Where the bill states that there are or

ay be persons interested in the subject to be divided or disposed of, whose names are unknown, and makes such persons defendants by the general description of 'parties unknown, ' on affidavit of the fact that the said parties are unknown, an order of publication may be entered against such unknown parties." The proceeding here was therefore in exact accordance with the letter of the statute. The affidavit of a corporation must, of necessity, be made by an agent. The statute does not say by whom the affidavit is to be made, but declares that on affidavit being made, certain proceedings shall be had. An affidavit by the local attorney of a corporation would seem to be more persuasive as to the facts stated that there are parties interested who are unknown than a like affidavit made by some officer of the plaintiff corporation, residing, it may be, and as in this case was a fact, at a place remote from the locality in which the transactions occurred which are set out in the bill, and from the land liens upon which were to be investigated and adjudicated. Upon this point, see the opinion of Judge Lewis in the case of Benn v. Hatcher, 81 Va., at page 35. The affidavit was sufficient, and the motion to remand was therefore properly overruled.

The second error assigned is that the court rejected defendant's plea setting forth in full the names and residences of all parties interested in the subject-matter. The persons named in this plea had already been made parties, under the designation of "parties unknown." They had a right, as such, to appear in person or by counsel, and file their answers; or, if they failed to do so, then they could, under section 3233, appear within three years from the entry of the judgment, decree, or order provided for in section 3232. The plea was immaterial, and was therefore properly rejected.

The third assignment of error is to the action of the court in rendering a personal decree against the petitioner. The position of the appellant is that the utmost it was proper for a court of equity to do was to sell the land, and give a decree for the balance remaining due, if any, after crediting the appellant with the proceeds of sale. This question is disposed of in the case of Ayres v. Robins, 30 Grat., at page 115. In that case a bill was filed to enforce a vendor's lien for the balance of the unpaid purchase money. The defendant demurred, upon the ground that equity had no jurisdiction, the plaintiff having a complete remedy at law for the recovery of the money due. The court however, said (Judge Burks delivering the opinion) "that an action at law by the vendor against the purchaser on an executory contract for sale to recover the...