Rader v. Neal

• Decision Date: 06 July 1878
• Parties: RADER, et al. v. NEAL, et al.
• Court: West Virginia Supreme Court

13 W.Va. 373

RADER, et al. v. NEAL, et al.

Supreme Court of West Virginia.

July 6, 1878

1. By Code, chap. 66, section 12, a married woman may sue and be sued in equity, without joining her husband in the suit where the case concerns her separate property; a demurrer filed to a bill, from non-joinder of husband in a suit in chancery by wife, upon a matter concerning her separate property, should be overruled.

2. A case proper for a suit in chancery, to avoid multiplicity of suits; although a remedy at law existed. (See opinion of court.)

3. G A. R. executed his bond May 3, 1861, to his brother E. W. R for $1,916.93, in which is incorporated the following: " It is understood, however, that I having sold to the said E W. R. a tract of land purchased by me of C. A. N. for $1,500.00, (or thereabouts) and when I procure a good title from said N., and convey the same to E. W. R., the amount is to be deducted from this bond." Upon a bill filed by D devisee of E. W. R., deceased, and J. G. R., his executor, it appeared, that G. A. R. and said N. had exchanged lands, G. A. R. to have the " brush land," and N. to have three hundred and fifty acres on Meadow river; each was placed in possession; each, bound himself to make to the other a good title to the lands respectively; but they never passed deeds. G. A. R. died intestate leaving two infant sons. E. W. R. died the same day testate, leaving D. his devisee. D. after death of testator took possession of the " brush land," and remained there several years. D. filed her said bill alleging, that N. disclaimed ability to make deed to the " brush land," as the title was in J. M. by conveyance from J. Z. N., in trust for the wife and children of N.; but said D. alleged in her bill that at the time the deed was made to J. M. as trustee, the " brush land" was in fact the property of N., though the legal title was outstanding in J. Z. N., who conveyed to J. M. at the instance of N., to hinder, delay and defraud creditors; and D. prayed the court to decree to her either the land, if bound to take it, or the $1,500.00, with interest. N., his wife and children answered the bill, tendered a deed for the land signed by all, and acknowledged by all except one, who was an infant, and offered to indemnify against the said infant. N. denied, that the deed to M. as trustee was made for any fraudulent purpose, and alleged, that the land was purchased and paid for by himself, and that J. Z. N., who held the legal title, conveyed to M. as said trustee, at his own instance, and without the concurrence of N. Said J. Z. N. deposed, that N. owned a mill property, and Lipps owned the " brush tract," legal title to which was in J. Z. N., that Lipps traded the " brush tract," to N. for said mill property, and that he, J. Z. N., at the request of Lipps, conveyed the " brush tract" to M. for benefit of Mrs. N. and her children. Held:

I. The contract of exchange between N. and J. G. R., and also the contract of May 3, 1861, between J. G. R. and his brother E. W. R. were capable of specific execution.

II. The court having decreed a rescission of the contract of sale of May 3, 1861, erred.

4. Where a purchaser knows, when he makes his contract, that there is a defect in the title, and that it will take a considerable time to remove it, or acquires this knowledge after his purchase, and acquiesces in the delay, or proceeds, with knowledge of the defect, in the execution of the contract, he cannot afterwards complain. Vail v. Melson, 4 Rand. 478, 481; Goddin v. Vaughn's ex'r et al., 14 Gratt. 125.

5. As to decreeing specific performance, the principle laid down in Abbott v. L'Hommedieu, 10 W.Va. 677, approved.

Appeal from a decree of the circuit court of Greenbrier county, rendered on the 27th day of November, 1874, in a cause, in said court then pending, in which J. G. Rader and others were plaintiffs, and Christopher A. Neal and others were defendants, allowed on the petition of Cyrus H. McClung and others.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree, appealed from.

MOORE, JUDGE, furnishes the following statement of the case:

On the 24th day of September, 1860, Green A. Rader and Christopher A. Neal, entered into a written contract, whereby said Rader bound himself to convey to said Neal three hundred and fifty acres of land on Meadow river, in consideration of which conveyance said Neal bound himself to transfer and convey to said Rader a certain tract of land of one hundred and forty-nine acres, designated in the proceedings of this cause, as the " Brush tract, " and being the same land, on which Neal then resided. Neal to have possession of the three hundred and fifty acres on or before October 1, 1860, " and to surrender possession of the one hundred and fifty (one hundred and forty-nine) acres" on or before the 15th day of May, 1861.

Neal and Rader also bound themselves " each to the other, in the penalty of $1,000.00, to make, or cause to be made, good and sufficient deeds for the lands" thus exchanged. And by an endorsement on the contract, signed by both parties, it was further agreed, that Neal was to have the privilege of seeding the field, he then had in corn, containing about eight or nine acres; Rader to do with the balance of the land, as he saw proper, from the date of the contract, allowing Neal to live in the house, and have his fire wood, until May 15, 1861, and the privilege of keeping his stock on the land.

On the 3d day of May, 1861, Green A. Rader, under his hand and seal, executed the following instrument:

" $1,916.93.

Due E. W. Rader, upon settlement of all accounts between us, the sum of $1,917.39, with interest from 1st day of May, 1861.

It is understood however, that I having sold the said E. W. Rader a tract of land, purchased by me of C. A. Neal for $1,500.00, or thereabouts, and when I procure a good title from said Neal, and convey the same to E. W. Rader, the amount is to be deducted from this bond."

Upon that instrument was endorsed, April 9th, 1867, " By cash, C. McClung, administrator of G. A. Rader, one hundred and one dollars."

By will, dated May 22d, 1861, and probated March 10th, 1868, E. W. Rader, gave to his sister, " Elizabeth Dixon, wife of William Dixon," all his estate, to be held by his brother, " J. Griffin Rader, for her sole and separate use and benefit, free from all debts and control of her husband," except that he left $250 to be employed by his mother " in such benevolent purposes, or purposes, as she may think proper."

J. Griffin Rader, as such trustee and as administrator of E. W. Rader's estate, and " Mary A. C. Dickson, wife of William Dickson," as orator and oratrix, filed their bill in chancery, in the circuit court of Greenbrier county, July 29th, 1872, alleging the facts, as stated, the oratrix styling herself, Mary A. C. Dickson, alleging herself the beneficiary of said will, and that the oratrix and her family took possession of the 150 acres of land, and remained there two or three years, " when she was turned out of possession by the said Neal, he coming into possession of the house, whilst she inhabited it; and alleging, that the contract between him and the said Green A. Rader must be annulled, as he could not make title to the land," which she alleged to be true, as before said contract between said Neal and Green A. Rader, said Neal had his brother, John Z. Neal, in whom the legal title was, to convey said one hundred and forty-nine acres of land to a trustee for the benefit of his wife and children, by deed of February 22, 1859, between John Z. Neal of one part, and Joseph Myles, trustee for Mrs. Annie Neal and her children, of the other part.

She further alleged, that since the dispossession of herself by said Christopher Neal, he, said Christopher, had " gone into possession of the three hundred and fifty acre tract, and now occupies it, and still holds the other tract also."

They allege, that they do not know whether Christopher Neal went into possession of the three hundred and fifty acre tract " in pursuance of the original contract," but that " he has continuously, until very recently, disclaimed his ability to make title too the one hundred and fifty acre tract." She, the oratrix, claims to be entitled either to the one hundred and fifty acre tract of land, or the money, $1,500.00, in lieu thereof; but she is kept out of both.

The bill further alleges, that Greer A. Rader deid about the time of the death of his brother, Elijah W. Rader, leaving two infant children, viz: James and Calvin; and that Cyrus McClung is his administrator; that said Joseph Myles is also dead, and the names of his heirs are unknown to complainants; that the tract of one hundred and forty-nine or one hundred and fifty acres, aforesaid, was, at the date of the deed from John Z. Neal to Joseph Myles, the property of said Christopher A. Neal, though the legal title was outstanding in said John Z. Neal, who conveyed the same to the trustee, Myles, " at the instance of the said C. A. Neal, with a view to delay, hinder and defraud his creditors." She, the oratrix, prays, that either the land or the $1,500.00 be decreed to her, & c., preferring the money, as there is defect of title to the land, & c.

C. A Neal answered the bill: " that on the 24th day of September, 1860, he, with the consent of his wife and children, and their trustee, Joseph Myles, entered into a written agreement with Green A. Rader for the exchange of lands, in the manner and upon the terms set out in the plaintiffs' bill; " that the title to the one hundred and fifty acres, which was by said exchange to be conveyed to Green A. Rader, had been, by conveyance from John Z. Neal, his brother, vested in Joseph Myles, for the...