Smith v. Plaster

• Decision Date: 20 September 1928
• Citation: 144 S.E. 417
• Parties: SMITH. v. PLASTER et al.
• Court: Virginia Supreme Court

144 S.E. 417

SMITH.

v.PLASTER et al.

Supreme Court of Appeals of Virginia.

Sept. 20, 1928.

Appeal from Circuit Court, Russell County.

Suit by N. H. Plaster and others against G. B. Smith and others, in which defendant named filed cross-bill. From the decree, defendant named appeals. Affirmed.

A. T. Griffith, of Lebanon, for appellant.

Clarence C. Burns, of Lebanon, and Walter H. Robertson, of Bristol, for appellees.

CAMPBELL, J. This is an appeal from a decree of the circuit court of Russell county, and the case displayed by the record is as follows: On June 13, 1921, N. H. Plaster, one of the appellees, filed his bill of complaint, in which it is alleged that on the 13th day of June, 1921, a contract in writing was entered into between complainant and C. D. Plaster, which contract is as follows:

"This deed, made this the 13th day of June, 1921, by N. H. Plaster and Marie L. Plaster, his wife, and C. D. Plaster, the grantors being of St. Paul, Virginia, and the grantee being of Swords Creek, Virginia, witnesseth:

"That for and in consideration of the sum of $11,400, to be paid as hereinafter set forth, the parties of the first part do hereby sell and convey unto the party of the second part that parcel or piece of land lying and being in the county of Russell and state of Virginia, on Kent's Ridge, in said county and state, and known as the 'Kate Duff Place, ' conveyed to G. E. Ball, N. H. Plaster, J. M. Plaster, R. A. Plaster, S. G. Plaster, J. B. Plaster, and C. D. Plaster by H. C. Stuart and Margaret C. Stuart under date of January 13, 1911, by deed, which deed is recorded in the clerk's office of Russell county, Virginia, Deed Book No. 47, at page 3S8, to which deed reference is hereby made for a more particular description of said land; the said tract of land containing by survey 117.87 acres more or less. The party of the second part agrees to pay for the land herein conveyed in the following manner, to wit: $2,000 on June 13, 1923; $4,000 June 13 1924; $4,000 June 13, 1925—and assume the payment of a mortgage against the said land in favor of the Fidelity Bank & Trust Company, of Knoxville, Tennessee, $1,400, with interest thereon from October 26, 1917, $200 of which amount is due and payable on October 25, 1921.

"The parties of the first part do hereby covenant that they are lawfully seized of said land, that they have a good and lawful right to convey the said land, and that there are no liens, judgments, etc., against the said land except those hereinbefore mentioned, and do hereby transfer unto the party of the second part all right, title, and interest in said land to him to hold, or to his heirs to hold, forever, with the full right to sell and convey the said land hereinbefore conveyed.

"Witness our hands this June 13, 1921.

"N. H. Plaster.

"Marie L. Plaster."

The bill further alleged that this contract was in effect a title bond or conveyance of the equitable title to the land mentioned; that complainant has, for a valuable consideration, transferred, indorsed, assigned, and vested title to the notes mentioned in the contract, and that the same are held and owned as follows: Aaron Russ is holder of the $2,000 note; C. A. Hyburn and E. G. Hyburn are holders of the $4,000 note—and that W. P. Webb is holder of the other $4,000 note; that two of the notes are long past due; that it was the intention and purpose of said complainant and defendant to have reserved an express vendor's lien in said contract or title bond aforesaid, but by inadvertence this was not done, but, as complainant is advised and alleges, the contract or title bond aforesaid does not convey the legal title to the said land aforesaid, but merely an equitable title, and therefore, under the law, the said notes aforesaid are secured by an implied lien on said land and are entitled to be enforced against the same; that complainant is advised that the said defendant C. D. Plaster has attempted to execute alleged deeds of trust on said land, one of said deeds being to U. T. Hubbard, trustee, to secure E. M. Evans two notes of $1,000 each, as set out in said deed, which deed is dated July 4, 1924, admitted to record July 7, 1924, in Russell county, Deed Book No. 69, page 204, and another to A. T. Griffith, trustee, to secure G. B. Smith the sum of $6,000, as set out in the said deed, which deed is dated May 7, 1924, and recorded May 7, 1924, in Russell county, Deed Book 68, page 546.

It is further alleged that the said trustees and beneficiaries in said deeds of trust had actual knowledge that the notes aforesaid were unpaid and that they constituted a lien on said land prior to their attempted deeds of trust, and expressly took in subservience thereto, and complainant further alleges that said contract giving to said defendant only an equitable interest, the said trustees and beneficiaries under said deeds of trust, whether they had actual notice or not being immaterial, took their alleged deeds of trust subject to and in subservience to the liens of said notes for the purchase money due on said land.

The prayer of the bill is for a specific performance of the contract upon the part of C. D. Plaster, and in the event of a failure to comply with the terms of the contract, that the court declare a lien upon the land in favor of the note holders, and that the land be sold to satisfy the lien. Aaron Russ, C. A. Ryburn, E. G. Ryburn, W. P. Webb, C. D. Plaster, U. T. Hubbard, trustee, E. M. Evans, A. T. Griffith, trustee, and G. B. Smith were made parties defendant.

To the bill of complaint G. B. Smith (who is sole appellant) filed his answer, denying the allegation of the bill, and also filed his cross-bill, setting forth that the paper writing dated June 13, 1921, was duly signed and acknowledged as the act and deed of N. H. Plaster and Marie Plaster, his wife, that the alleged deed was duly recorded in the current deed book in the clerk's office, and that C. D. Plaster took possession of the land pursuant thereto.

It is further alleged in the cross-bill that on the——day of May, 1924, N. H. Plaster and C. D. Plaster were heavily indebted to the Farmers' & Miners' Bank, a corporation chartered and doing business under the provisions of the laws of the state of Virginia, and were being pressed for the immediate payment of the said indebtedness; that N. H. Plaster thereupon represented that C. D. Plaster was the owner in fee simple of the 117.87-acre tract of land, that the said land was clear and free from liens and incumbrances; and that he, the said N. H. Plaster, would arrange and secure the execution of a first mortgage upon the said lands to secure respondent if he would discharge $6,000 in obligations of N. H. Plaster and C. D. Plaster in the said Farmers' & Miners' Bank.

It is also alleged that the assertion of a lien by the note holders constitutes a cloud upon the title which appellant is entitled to have removed.

The prayer of the cross-bill is that a decree may be entered reforming the deed, executed by the said N. H. Plaster and wife to C. D. Plaster; that the liens and their priorities against the lands in the bill and proceedings mentioned be determined; that the asserted claims of C. A. Ryburn, E. G. Ryburn, Aaron Russ, and W. P. Webb be decreed to be void.

Thereupon a decree was entered in the cause, referring it to a commissioner to report the liens and priorities thereof and any other matter deemed pertinent. After a consideration of the exhibits filed in the cause, the evidence offered, and the law governing the case, the commissioner reported that C. D. Plaster was only the equitable owner of the land mentioned in the paper writing dated June 13, 1921, and therefore A. T. Griffith, trustee, and W. T. Hubbard, trustee, derived no better title than the title of C. D. Plaster, and were equitable purchasers only. The commissioner further reported that the assignees of the notes were entitled to a first lien upon the land, and that, as the land would not rent for a sum sufficient to satisfy the indebtedness in five years, it should be sold to satisfy the same.

It is assigned as error that the court erred in confirming the report of the commissioner.

It is the contention of appellant that the writing dated June 13, 1921, shows upon its face that it was executed as a deed; that it expressly purports to convey all the right, title, and interest of the parties of the first part in the lands mentioned; that no lien is reserved to secure the payment of the purchase-money notes; that the failure to affix a seal to the instrument was a mere oversight.

Section 5141 of the Code provides:

"No estate of inheritance or freehold, or for a term of more than five years, in lands, shall be conveyed unless by deed or will. * * * "

One of the essential requisites of a deed is that it shall have a seal affixed thereto:

"At common law a seal is universally defined, until recently, to be an impression on wax, or some other tenacious material." 2 Minor's Inst. p. 728.

By statute, section 5562 of the Code, the rule at common law has been changed to the extent that now any writing to which a natural person making it shall affix a scroll by way of seal shall be of the same force as if it were actually sealed.

In Reusens v. Lawson, 91 Va. 244, 21 S. E. 352, which was an action of ejectment, the court, on motion of the defendant, Lawson, gave the following instruction:

"The court instructs the jury that the paper purporting to be a deed of conveyance from J. Miller Russell to H. O. Middleton, dated July 27, 1838, offered in evidence by the plaintiff, did not convey the legal title to the land therein mentioned, but only an equitable interest in said land—the said paper having no seal or scroll attached to the grantor's name, but said paper is sufficient basis upon which to found a claim or color of title; and if the jury believe that the plaintiffs, or those under whom they claim, held said land, under that paper as a color of title, by adverse...