Robinson v. Dix
| Decision Date | 12 November 1881 |
| Citation | 18 W.Va. 528 |
| Parties | ROBINSON v. DIX et al. |
| Court | West Virginia Supreme Court |
1. A deed by M. and H. to D. conveying land with general warranty of title commences: " That for and in consideration of $1,250.00 of which $646.00 is paid, and $604.00 the residue thereof is to be paid, whenever two bonds of $200.00 each are produced, which J. executed to R.; " and the deed concluded: " It is expressly understood between all the parties to this deed, that a lien is retained upon the land described therein, until the two bonds set forth in this deed are paid by the said D., which is the residue of the purchase-money; " and this deed was executed only by the grantors M. and H.; and the two bonds with interest to the date of the deed amounted to $604.00. Held:
The true meaning of the last clause in the deed is, that it is expressly understood between all the parties to this deed that a lien is retained for the unpaid purchase-money $604.00, upon the land described in the deed, until the two bonds set forth therein are paid by the said D., which bonds in amount are the same as the unpaid purchase-money; and therefore it does not amount to an express agreement by D. to pay these two bonds to R. and the giving of a lien on this land by D. to secure the payment of these bonds to R. And though there was a lien on this land, when owned by M. and H to secure the payment of these two bonds created by them which was binding on said lands after the conveyance to D., yet R. cannot enforce this lien in a court of equity without making M. and H. parties defendant.
2. A demurrer to a bill for want of parties should properly name the necessary parties defendant, who have been omitted so as to enable the plaintiff to amend his bill and call the attention of the court to this defect; and if it does not, the demurrant cannot complain that the demurrer is not sustained; but the court ought in the final hearing of the cause, though the demurrer has been overruled, to decline to determine the cause on its merits, until the necessary parties defendant have been brought before the court by an amendment of the bill and have been given the opportunity to be heard.
3. A court of equity has jurisdiction to enforce a vendor's lien on land for the unpaid purchase-money represented by a bond, though it has been lost; and while its loss and that it cannot be found on search may be properly stated in the bill and supported by affidavit, yet the failure to make such allegation would be no ground of demurrer, as it may afterwards be done on the defendant's motion, or these facts may be shown in the progress of the cause.
4. If a defendant in a chancery suit in his answer alleges, that a third person or the plaintiff wrote a letter touching the matter in controversy, and files with his answer as part thereof what purports to be the original letter, such letter under section 40, chapter 125 of the Code will be regarded by the court as genuine without any proof of the handwriting, unless the fact, that such letter was written by such third person or by the plaintiff, is denied by an affidavit.
Appeal from and supersedeas to a decree of the circuit court of the county of Nicholas, rendered on the 8th day of March, 1879, in a cause in said court then pending, wherein Benjamin H. Robinson was plaintiff, and James Dix and others, were defendants, allowed upon the petition of James Dix and Rachel Dix.
Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree appealed from.
Green, Judge, furnishes the following statement of the case:
In December, 1871, B. H. Robinson filed his bill in the circuit court of Nicholas county, against James Dix, Rachel E. Dix and Joseph D. Hanna. The bill states, that on February 25, 1860, the defendant, Joseph D. Hanna, executed to the plaintiff, B. H. Robinson, two bonds for the sum of $200.00 each with interest from their date, one due and payable on the 25th day of February, 1861, and the other on the 25th day of February, 1862; and that they are still due to the plaintiff and wholly unpaid; that these bonds have been lost or mislaid and cannot be produced; and he filed with his bill as a part thereof his affidavit stating all these facts. The affidavit says: " That said bonds have been lost or mislaid, so that they cannot be found." The bill further states, that the consideration of said bonds are in part payment of a tract of three hundred acres of land described as located in Nicholas county, which was sold by the plaintiff to said Hanna and conveyed to Fielding McClung, trustee for the wife of said Hanna, Clara W. Hanna, in which conveyance a lien was retained for the unpaid purchase-money, said two bonds; that on October 12, 1868, Fielding McClung, trustee, the wife of Joseph D. Hanna uniting in the deed, conveyed this tract of land to the defendant, Rachel E. Dix, wife of defendant, James Dix, an attested copy of which deed is filed with the bill as a part thereof. On the face of this deed a lien was expressly retained upon this land, until these two bonds of Joseph D. Hanna to the plaintiff, B. H. Robinson, were paid by the grantee, Rachel E. Dix; and the consideration of the deed was recited to be $1,250.00, of which $646.00 was paid in cash, and the residue, $604.00, was to be paid, whenever these two bonds of Joseph D. Hanna were produced. The bill further alleges, that Dix refuses to pay these two bonds and claims that the land is not liable, unless these bonds are produced. The bill also alleges a willingness to give indemnity against the production of these bonds, as the court may direct. The prayer of the bill is, that this tract of land, or so much thereof as may be necessary, may be sold to pay these two bonds and interest and the costs of suit, and for general relief.
In August, 1878, James Dix demurred to this bill and the plaintiff joined in the demurrer. Several grounds of demurrer were stated, two only of which it is deemed necessary to state, to wit, that Fielding McClung, trustee, should have been made a party plaintiff, and that the plaintiff was not entitled to the relief, until and unless he produced these two bonds of Hanna, those being the terms of the contract; but it does not assign as a ground of demurrer, that other necessary parties defendant had not been made. At the same time he filed his answer, to which there was a general replication. This answer states, that these bonds are not lost or mislaid but have been assigned to and are owned by one E. Sacra, of Covington, Virginia. This assignment was made, the answer alleges, under these circumstances. Before the late war James A. Alderson and Joseph H. Robinson were partners and attorneys for the owner of these bonds and had been in Nicholas county, where they resided, for collection. At the beginning of the war they left the county with these bonds and went to Virginia; and Joseph H. Robinson assigned these bonds for a valuable consideration to E. Sacra, who now owns them. In proof of this two letters from him to Dix were filed with the answer, in the first of which dated, January 25, 1870, he says: " If you pay anything on these bonds, it will be at your risk" ; and he further says: " They will be produced." The other letter is dated December 20, 1871, and in it he says: " I hold these two bonds," describing them, " by regular assignment from Joseph Robinson," and adds: " As to the affidavit you ask me to make, I can't possibly do that now, as I am compelled to go to Louisiana on business, but I think I will be at your court in May next." The defendant, James Dix, as showing a further difficulty in his paying these bonds, files with his answer a letter alleged to have been written by the plaintiff, B. H. Robinson, to his brother, dated Abingdon, March 19, 1872, which the answer states is a reply to a letter inquiring about said bonds, in which he says: " You wished to know something about certain bonds, which were held by Mrs. Hanna against Joseph D. Hanna. Joseph H. Robinson made the sale of the land for Mrs. Hanna, and, I suppose, held the bonds. Whose hands they are in now I cannot say. James A. Alderson was given a power of attorney to collect all claims due Mrs. Hanna in Virginia, if those bonds spoken of are not in the hands of James Alderson or some of the Feamsters, they are not where they should be, as they have never been trusted to any party or parties with Mrs. Hanna's consent. She is the legal owner of the bonds.
James Dix in his answer says, that having this information he did not feel so free in paying these bonds to the plaintiff or to E. Sacra. He avers he has always been ready and willing to pay the amount of said bonds, whenever he would be safe to do so, and he is still; that he had then the money ready and was holding it to meet those two bonds, whenever he was made safe in doing so; that he feels compelled to demand some kind of security good and undisputable to indemnify him against loss. He has told plaintiff's attorney often, before this suit was brought and since, that he was always ready and willing to pay these bonds and still is, as soon as he was made safe in so doing by proper security; and this is all he ever had required or does now require; and he asks this at the hands of the Court. There was no affidavit to this answer, and though replied to generally, no evidence was taken to support its statements.
The Court on August 8, 1878, rendered a decree, which recited that it appeared, that the defendant, J. D. Hanna, had been duly proceeded against as an absent defendant in the manner prescribed by law, and that Rachel E. Dix had been duly served with process more than two months; and she and said Hanna failing to appear and answer, the bill was taken for...
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