Pritchard v. Evans

• Decision Date: 25 February 1888
• Citation: 5 S.E. 461,31 W.Va. 137
• Parties: PRITCHARD et al. v. EVANS et al.
• Court: West Virginia Supreme Court

5 S.E. 461

31 W.Va. 137

PRITCHARD et al. v. EVANS et al.

Supreme Court of Appeals of West Virginia.

February 25, 1888

Submitted January 18, 1888.

Syllabus by the Court.

A court of equity has jurisdiction to abate from the purchase money due from a vendee, for a deficiency in a sale of land, by which the vendee was injured through the fraud of the vendor in misrepresenting the quantity of the land, on the face of his contract or deed, or orally.

Where the decree sought to be reversed is based upon depositions which are so conflicting, and of such a doubtful and unsatisfactory character, that different minds and different judges might reasonably disagree as to the facts proved by them, or the proper conclusion to be deduced therefrom, the appellate court will decline to reverse the decree, although the testimony may be such that the appellate court might have rendered a different decree if it had acted on the cause in the first instance.

If no other error is found in a decree, it will not be reversed because the court might have erred in decreeing costs.

Appeal from circuit court, Marion county; A. B. FLEMING, Judge.

Martin & Woods, for appellants.

A. F Haymond, for appellees.

JOHNSON P.J.

By an agreement made on the 20th day of April, 1872, between James Evans and B. M. Dorsey of the one part, and Alpheus Pritchard, Amos Pritchard, and Nimrod Morgan of the other part, the said Evans and Dorsey sold to Pritchards and Morgan "their part of what is known as the "Evans and Conaway Plum Run Farm,' as divided by Conaway and Evans and Dorsey," for the price of $6,100,--$1,525 to be paid on the 1st day of October thereafter, and the residue in three equal annual payments; all of the payments to draw interest from the date of the contract; the purchasers to execute three notes, within a reasonable time, for the purchase money, and on the payment of the first payment of $1,525 on the 1st day of October next thereafter said Evans and Dorsey bound themselves in a penalty of $5,000 to make or cause to be made to the parties of the second part "a good and sufficient deed for the land." The parties of the second part were to have immediate possession of the land. The notes were executed, and part of the purchase money was paid. An action at law was brought to recover three of the said purchase-money bonds of $1,525 each. Judgment by default was at the November term, 1883, of the circuit court of Marion county rendered in said action after allowing credits for $2,960.56. In February, 1884, the plaintiffs Alpheus and Amos Pritchard and Nimrod Morgan filed their bill of injunction, to restrain the defendants from enforcing said judgment, and among other things alleged that at the time said contract of the 20th day of April, 1872, was made, and as an inducement to their making it, said Evans and Dorsey fraudulently represented to them that said Evans was a surveyor and had surveyed said land, and that it contained between 235 and 240 acres, and not less than 235 acres by the actual survey and measurement made by said James Evans; that they were ignorant of the quantity of acres in said tract and relied on the representations so made, and but for such representations they would not have made such purchase. It alleges that the land fell short about 15 acres; that the tract contained a little less than 220 acres. Plaintiffs say they have paid about $42 taxes on said land, that defendants should have paid. The bill prays an injunction to the judgment, and that the price of the land should be abated for the 15 acres the land fell short. The injunction was granted as to $1,500 of the judgment. The defendants answered, and deny explicitly that they or either of them made the representation charged in the bill, and also that the plaintiffs were ignorant of the land. It avers that plaintiffs knew more about the land than they did. The answer avers that on the 8th day of August, 1874, they made a deed, acknowledged for record, conveying said land to plaintiffs, which deed declares the land was sold "in gross, and not by the acre;" that this deed was accepted, and held without objection or complaint until the 2d day of November, 1882, a period of more than eight years, when at a conference between the parties they made known to the defendants that they rejected said deed, and the same was then left in custody of respondents, who, in order to preserve the same, took charge of it, and the same is now here filed with the answer, and tendered to plaintiffs, whose deed it is; that the land was on the commissioner's book from 1876 to 1884 in the name of respondents,--the plaintiff's having failed to record their deed,--taxed as 219 acres, of which plaintiffs had notice, "and said taxes have, as respondents believe and charge, been duly paid every year by plaintiffs, who were legally bound to pay the same." The answer further says, "respondents admit that on the 2d day of November, 1882, at said conference between them and the plaintiffs, *** respondents tendered to the plaintiffs a deed for said land, which was dated ...