Plaintiff v. Petitioner

• Citation: 14 W.Va. 397
• Court: West Virginia Supreme Court
• Decision Date: 14 December 1878
• Parties: Baldenberg et al. v. Warden et al.

14 W.Va. 397

Baldenberg et al.

v.Warden et al.

Supreme Court of Appeals of West Virginia.

Decided December 14, 1878.

1. Where a bill is filed for the specific performance of a parol con-tract, the contract must be set out with reasonable certainty, _ and proved substantially as alleged, or no decree can be made to enforce it; and the court may dismiss the bill, if the contract is not proved as alleged.

2. But where the contract proved varies from that set up in the bill, and the contract proved is clear and certain in its terms, and is such as a court of equity might properly enforce, and the court below decrees a specific execution of the contract set out in the bill, the decree must be reversed; but the Appellate Court v/ill not dismiss the bill, but will remand the cause to the court below, to put the plaintiff to his election, whether to have a specific performance of the "contract as proved," or to have the same rescinded, and the parties put in statu quo.

Appeal from and supersedeas to a decree of the circuit court of Raleigh county, rendered on the 27th day ot April, 1875, in a cause in said court then pending, wherein Susan Baldenberg and others were plaintiffs, and Thomas Warden and David J. Warden and others were defendants, granted on the petition of said Thomas and David J. Warden.

Hon. Evermont Ward, judge of the ninth judicial circuit, rendered the decree appealed from.

Johnson, Judge, furnishes the following statement of the case.

In February, 1872, Susan Balclenberg in her own right, as widow of Hugh Warden, deceased, Alexander Warden, William T. Quesecberry and Martha, his wife, late Martha Warden, filed their bill, against Thomas Warden, David J. Warden, Letitia Warden, Johu T. Warden, Mary J. Warden, Charles A. Warden, Hugh J. Warden and Milton J. Warden, the last six infants. The bill alleged, "that in the year 18 and in the lifetime of Hugh Warden, the said Thomas Warden gave to his son, Hugh Warden, a certain tract or parcel of land, which the said Thomas Warden possessed in fee at that time, lying and being in the county of Raleigh and State of West Virginia, situated on the waters of White Stick, adjoining the lands of John Warden, Edwrard Prince and others. The said Thomas Warden, had the said tract or parcel of land run off to the said Hugh Warden in his lifetime, and a plat made of the said land, and gave the said plat to the said Hugh Warden; and the said Thomas Warden induced his son Hugh, to move and settle upon the said tract or parcel of land; the said Thomas Warden at the same time promised the said Hugh WTarden, that if he would settle upon the said tract or parcel of land, he would convey to the said Hugh Warden and heirs the legal title to the said tract or parcel of land, as soon as he would settle upon the-said land; and for a further inducement for the said Hugh Warden to settle upon and improve the said tract of land, the said Thomas Warden had the said tract or parcel of land surveyed, and platted, and delivered to the said Hugh Warden the plat of the said boundary of land, promising at the same time to convey to the said Hugh Warden the legal title to the said land, as aforesaid."

The bill further alleges, that in pursuance of said contract, the said Hugh did move upon the said land, and made valuable improvements, clearer] land and built a house, built a saw-mill and grist-mill, and expended a large amount of money and labor upon the land, upon the faith that his father would keep his promise and make to him the legal title to said land. That said Thomas Warden put his son Hugh in possession of said land, and he remained in possession until his death in 18.and that he died leaving his widow Susan and eight children, the two named as plaintiffs, and the six infants defendants; that the said Thomas Warden had refused to comply with his promise, and would not convey said land to the said Hugh Warden in his lifetime; and since his death the said Thomas had refused to convey said land to the legal heirs of said Hugh; that the said Thomas Warden forced and compelled the widow and children of his son Hugh to leave and move

off from said land; and on the day of, 1866, the said

Thomas Warden re-entered upon the said land, and put D. J. Warden in possession thereof, including both the saw-mill and grist-mill; and the said David J. Warden has occupied said premises including the saw-mill

and grist-mill since-, and refuses to account for the

rents and profits of the same, and that such rents and profits are worth, at least $150.00 per annum; that said D. J. Warden has cut much valuable timber, &c.

The bill charges conspiracy between Thomas Warden and his son David, and that said Thomas refuses to convey the said land, to the heirs of said Hugh Warden, and that David refuses to render any account tor the rents and profits. The prayer of the bill is, that Thomas Warden be required to convey said land to the legal heirs of said Hugh Warden, and that David J. Warden be required to account for the rents and profits and for the timber by him taken from said land, &c.

Thomas Warden answered the bill, in which he denies making any contract with his son Hugh, by which he was required to convey to him the said land; that he "told Hugh, as he had others of his sons, to go upon his land and do the best they could, and that he would tinally, if they did well and showed a disposition to make a living in the world, give it to them," and that Hugh went upon the land with no other understanding. He admits, that his son made improvements, but denies, that he did to the extent charged in the bill; that while his son was making improvements he says he advanced to him two valuable horses; worth $100.00 each; that he furnished provisions to a large amount to-wit $ and fully intended at some time of life to convey to his son one hundred acres of land, either at the place where he settled or some other place, or property equivalent thereto of other kind. He denies, that he drove the plaintiffs from the land. He says they left it of their own volition, and went to live on another tract of land of defendant, that was much better. He says nothing in particular about running off the land for Hugh, and giving him the plat, but in general "denies all and every charge made by plaintiffs in their bill tending in anywise to a contract, either written or parol, between him and his said son."

David J. Warden answered the bill. He says, he knows nothing of the pretended contract, and claims, that he made an exchange of the Sand Branch place for the place in controversy with Susan Baldenburg; says he made valuable inprovements on said land, worth $1,000.00; denies that he knew anything at the time of his purchase of the land in controversy from his co-defendant Thomas Warden, of the claim of Hugh Warden, or his heirs; and denies the right to charge him with timber cut, or to charge him in any way. He does not say, that he had a deed from his father, or that he had paid for the land. He claims in his answer, that in 1867 Susan Baldenburg being in possession of a part of the land in the bill mentioned proposed an exchange with him for the use and occupation of a tract of land on the Sand Branch, then occupied by the defendant and belonging to his co-defendant Thomas Warden, which proposition of exchange he accepted, and said Susan agreed to transfer all her claim, right or title thereto to him, Ba

Many depositions were taken in the cause. As to the y contract, Mrs. Baldenberg in her deposition says: "When Hugh and I were married we settled on the Sand Branch, in the year 1852, on the land of Thomas Warden. We lived there upwards of one year and to the best of my knowledge Hugh cleared about six acres on the Sand Branch farm, and put up a stable; and in 1854 removed to the land in controversy, and Hugh put up the mill there and toas to do his father's grinding toll free his lifetime; and when we moved on the land in controversy, it was my understanding that Hugh was to have it; I heard Thomas Warden and Hugh say so. Hugh wanted to go to Indiana, and I was unwilling to go there, and his father prevailed with him to stay; and it was my understanding, that Thomas Warden agreed to make Hugh a title to the land, if he would stay; and the land was run off by agreement of the parties, Thomas Warden and Hugh, by Richard McVey and Thomas Warden; Hugh, John Wrarden, and Philip Lykens, I think, were there, when the land was run off, and they run off one hundred and torty-nine acres, which includes the mill; Mr. McVey made a plat and certificate of survey of the land; which I found among the papers of my husband after his death."

John Warden in his deposition says: 'Hugh lived on a piece of land that I helped to' run off; and my father and Hugh both said it was run off for Hugh; father helped to run it off. Hugh lived on it at the time it was run off, and continued to live on it until his death, about live or six years I think; he improved it by clearing some eight or ten acres of land, built a dwelling house, a stable, and put up a saw-mill, and attached a grist-mill to it; and Hugh exercised ownership over the land and mill, and it always went by the name of Hugh Warden's mill. Father's grain was ground toll free, which was the understanding between them I believe." n Nancy Warden in her deposition says: "Hugh Warden lived where D. J, Warden now lives, and became a dissatisfied, and went to his father Thomas Warden, and told him, if he did not make him a title to his place, he would not work there any more, his father told him to go to work and content himself, and he would make him a right to-morrow, if he wanted, it. I know that they were to run off land for Hugh; and Hugh said it was for him; and it was my understanding, that Hugh was to have the mill, and Thomas Warden was to have his grinding done toll free; and I understood it also, that the lines run included the mill. I think that Thomas Warden said that the fence...