Perrow v. Webster
| Decision Date | 16 January 1919 |
| Citation | 97 S.E. 770 |
| Parties | PERROW. v. WEBSTER et al. |
| Court | Virginia Supreme Court |
Appeal from Circuit Court, Campbell County.
Bill in equity by Daniel Webster against Wm. R. Perrow and others, wherein Sue Nichols and others, as heirs of M. A. Wing-field, filed answer, which was treated as a cross-bill. To review decree, Perrow brought bill in nature of a bill of review against Webster and the Wingfield heirs, and from the decree, he appeals. Reversed.
The facts, issues, and proceedings in this cause are somewhat complicated. We shall state only so much thereof as appear material to a decision in this court.
By deed dated March 25, 1910, Wm. R. Perrow and wife, for a recited consideration of $400 cash, conveyed to Daniel Webster, with general warranty and with the usual modern covenants of title, a tract of land containing about 50 acres, composed of two smaller tracts, one of about 12 acres, and the other of about 38 acres. The 12-acre tract was held by Perrow under a tax deed made to him by S. C. Goggin, clerk, in consummation of Perrow's purchase under a sale for taxes delinquent in the name of (Mrs.) M. A. Wingfield; and the 38 acres was a part of Perrow's original home tract.
In February, 1916, Webster filed a bill in equity against Perrow and the alleged heirs of M. A. Wingfield, deceased, which, after reciting the deed above mentioned, alleged, inter alia, that Webster "had the utmost confidence in Perrow and relied on his representations that the title to the whole of said 50 acres of land was perfect, and that * * * complainant had no knowledge or information that title to any part of the 50 acres was in any way clouded"; that no objection was raised to the title to the 38-acre tract, but that, while the records disclosed that the delinquent tax sale of the 12 acres was made by the treasurer to Perrow in 1906 for taxes delinquent in the name of M. A. Wingfield for the year 1904, the tax deed from the clerk was not made until 1909, and the land had in the meantime, in 1907, been "redeemed by M. A. Wingfield, and the amount then ascertained to be due was paid to the clerk, S. C. Goggin, who thereupon released the lien of said taxes according to law, " and that the tax deed was otherwiseirregular and incomplete, as appeared from a copy thereof exhibited with the bill; that the 12 acres adjoins the 38 acres, and the two compose one tract; that "by reason of the said defective title complainant has been unable to sell or exchange the said land, " reciting two opportunities of sale lost by the condition of the title; that complainant had frequently requested Perrow to perfect the title to the 12 acres, or, if unable to make a good title thereto, to refund the purchase price of the whole tract and accept from complainant a reconveyance, with special warranty, of the whole tract, the latter alternative being again offered in the bill: that Perrow had informed the complainant that M. A. Wingfield was dead, and had given him the names of her heirs, but had not procured and delivered to complainant any quitclaim deed from them, or otherwise remedied the defects in the title to the land.
The material part of the prayer of the bill was that the deed from Goggin, clerk, to Perrow be construed, and the title to the 12 acres be perfected, and the cloud thereon removed at Perrow's expense, and for general relief.
Perrow was duly served with process, but did not make any answer or enter any appearance to the bill.
Sue Nichols and others, as the heirs of M. A. Wingfleld, filed an answer admitting that the 12-acre tract was returned delinquent for nonpayment of the 1904 taxes, that it was sold by the county treasurer and purchased by Perrow, and that it was redeemed by Mrs. Wingfleld, all as stated in the bill. This answer further stated that by some mistake or oversight the clerk had made the tax deed to Perrow after the land had been redeemed, and charged, further, that even if the land had not been redeemed, the tax deed was void, "because it does not set forth all the circumstances appearing in the clerk's office in relation to the sale, and also because the said deed is not under seal"; that neither Webster nor Perrow had any title to the 12 acres; that the deed from Perrow to Webster, as well as that from the clerk to Perrow, was void, and that both constitute clouds upon the title of the respondents.
The answer then prays that the two last mentioned deeds be annulled, and, to that end, that the answer, if necessary, be treated as a cross-bill as to Webster and Perrow and wife, and they be required to answer the same, and that respondents be awarded all such other relief as their case might merit or require.
At the March term, 1916, a decree was entered taking the bill for confessed as to Perrow and wife, noting and allowing the filing of the answer of Sue Nichols and others, and concluding as follows:
"On consideration whereof, the court doth adjudge, order, and decree that said answer may be treated as a cross-bill, and the plaintiff, Daniel Webster, and the defendants, W. R. Perrow and M. C. Perrow (his wife), are allowed to file their answers to said cross-bill, and the parties to take such depositions as they may desire, and, by consent of all parties to this cause by counsel, this cause is set for further hearing in vacation."
In August, 1916, pursuant to regular notice, the complainant proceeded to take his depositions. Perrow appeared at the time and place designated in the notice, but the witnesses were slow in arriving, and he left before the depositions were taken. The circumstances bearing upon his failure to remain for the examination of the witnesses will appear in more detail in a subsequent and more pertinent connection. The proof taken on this occasion, which comprised the whole of the parol testimony in support of the bill, sufficiently established, inter alia, the following facts, for whatever they may be worth in the case, namely: That Perrow verbally represented to Webster that the title to the 50 acres was perfect; that Webster believed these representations and had no knowledge of any defect of title; that Webster lost more than one advantageous sale of the 50 acres because of the alleged defective title to the 12 acres; that the 38 acres and the 12 acres compose one boundary, the water, the cleared land and the only building (a cabin) all being on the latter; that the 38 acres would be of very little value without the 12 acres; that Webster had called Perrow's attention to the alleged defect in title; that Perrow admitted the existence of the defect, but made no satisfactory offer to remedy it; that Webster was ready and willing to reconvey the 50 acres to Perrow upon the payment to him of $400 and interest and the costs of the pending suit; and that the allegations in the bill and answer as to the time and manner of the redemption of the 12 acres were true, the proof showing specifically that Mrs. Wingfield redeemed the same "on the 7th day of August, 1907, by the payment of said delinquent taxes, interest, and costs to said clerk."
At the September term, 1916, the court rendered a final decree, holding that the deed from S. C. Goggin, clerk, to Perrow was null and void; that the 12 acres therein described "belongs to the heirs of Martha A. Wingfield"; that the deed aforesaid is a cloud upon their title, and the clerk of the court should mark the same canceled and refer to this decree as authority; that the deed from Perrow to Webster, in so far as it attempts to convey the 12 acres, is null and void, and should likewise be marked canceled; that a commissioner thereby appointed for the purpose should convey the 12 acres to the...
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