Sturm v. Parish

• Decision Date: 31 January 1865
• Citation: 1 W.Va. 125
• Court: West Virginia Supreme Court
• Parties: Henderson Sturm v. Richard Parish, et al

1 W.Va. 125

Henderson Sturm

v.Richard Parish, et al

Supreme Court of Appeals of West Virginia.

January Term, 1865.

1. S.sells a lot of land to d., "who sub-divides and sells to p. and S., and Parish;

s. conveys by deed to p. and s., the vendees of d, without retaining vendor's lien; subsequently s. at the instance of Parish, conveyed to him the lot sold him by d., upon his paying him the balance of the purchase money due on the whole land by d., and executed to Parish a paper promising to refund the said balance of purchase monsy, if it should appear that the portions sold to p. and s. were liable for the payment of said balance. Held:

That the paper so executed by s. to Parish, was a promise without a consideration.

2. a promise or contract where there is no valuable consideration, and where there is no benefit moving to the promisor, or damage or injury to the promisee, is void.

Richard Parish brought a bill on the chancery side of the circuit court of Marion county, at the December rules, 1852, stating that about the 15th day of March, 1851, he purchased of one George.Downs a tavern stand and lot of ground in Worthington, Marion county, for the price of 1400 dollars; 900 dollars whereof he paid in cash, and executed bonds for the payment of the residue as follows: 200 dollars due April 1st, 1852, 200 dollars April 1st, 1853, and 100 dollars April 1st, 1854; that Downs gave him a title bond binding himself to make a deed with covenants of general warranty against the 1st day of April, 1852; that Downs assigned the bond due April 1st, 1852, to one Henderson Stwrm, who brought suit thereon and recovered judgment at the fall term of the circuit court of Marion county, and that an execution was then in the hands of the sheriff for the cob lection of the money and costs; that Downs had assigned the other bonds to one Thomas F. Conawag, but did not know which of the assignments to Sturm and Gonaway to place first; that he learned that one Jesse Sturm held a vendor's lien on the tavern stand and lot for purchase money due from Downs, his vendor, and that he had in fact no title for the same, but it still remained in Jesse Sturm who wras threatening to bring a suit to enforce the payment of his purchase money; that said Downs was wholly insolvent, and that the assignment to H. Sturm being in blank he could not speak as to any priority between him and Conaway. He therefore prayed that Downs, H. Sturm, Conaway and Jesse Sturm be made parties to the bill, and that the latter be required to answer how much purchase money was still due and owing to him by Downs, and that H Sturm and Conaway be required to show respectively their assignments and the date thereof: and that an injunction be granted the complainant to stay all further proceedings until all questions could be heard by the court.

At March Rules, 1853, Jesse Sturm filed his answer stating that he sold to Downs the house and lot mentioned in the bill for the sum of seven hundred and fifty dollars; that by the terms of the sale he was to make a deed to Downs when the purchase money was all paid; that on the 1st day of February, 1853, there was due and remaining unpaid of the said purchase money one hundred and eighty-nine dollars and twenty-four cents, which was a lien on the house and lot, and that lie was willing to make a deed to Downs or any person whom the court should designate upon the payment of said remaining purchase money.

At the April term, 1853, of the circuit court, Henderson Sturm, after moving to set aside the decree nisi, filed his answer, admitting, so far as he knew, the statement of the complainant as to the amount and number of the bonds executed by complainant to Downs, and stating that the bond for two hundred dollars due April 1st, 1852, was assigned him by Downs on the first Monday in April, 1851, and that the other two hundred dollar bond was then in the posses, sion of Downs and unassigncd and that Downs wished to sell the same to him; that the complainant, Parish, was duly notified of the assignment to him, and remarked when so notified that it was all right; that he was ignorant at the time of said assignments to him of any purchase money being due from Downs to Jesse Sturm, and heard of no such objection from Parish when notified of the assignment, and called for proof of all the material facts from the parties putting his interests in jeopardy.

On another day of the same term of court, Conaway filed his answer alleging that he had no personal knowledge of the terms of sale between Jesse Sturm and Downs, nor whether there had ever been a deed to Downs or not; that he purchased, and took an assignment thereof, the bond for two hundred dollars due April 1st, 1853, and also the one for one hundred dollars due April 1st, 1854, on the 26th day of June, 1851, for a valuable consideration; that before doing so he saw complainant, Parish, who informed him that the bonds were right and just and he wrould pay them, and alleged that he was an innocent holder, and asked tho protection of the court.

The cause was heard at the June terra, 1854, upon a motion of defendant, H. Sturm, to dissolve the injunction, which motion was sustained and no damages were allowed. The cause was also referred to a master to ascertain and report, what amount of purchase money was due defendant, Jesse Sturm; what amount of purchase money the complainant. Parish., paid to defendant, Downs, and when it waa paid, whether before or after notice of assignment of the bonds, and whether the bonds assigned to Conaway by Downs were a part of the consideration for the house and lot bought by Parish of Downs; and whether there were any other lands than those mentioned in the bill upon which the purchase money due Jesse Sturm was a lien, and whether Downs sold all the lands he purchased of Sturm to complainant, Parish, and if not, who holds the same. In June, 1855, it was ordered by the court, that the surveyor of the county go on the lands and make survey of the same and return a plat to the court, and leave wag also given the complainant to file an amended bill, which he did at tho September rules following, alleging therein that since the filing of his. ori ginal bill he had ascertained that defendant, Downs had sold a portion of the land mentioned in the original bill to B. R. Patton, T F. Sharp and H. Nay, and asked that they be made parties defendant to the original as also the amended bill. Patton, Sharp and Nay not answering, the bill was, as to them, taken for confessed. The cause again was heard at a special term of the court in November, 1856, when the report of the master, to which there were exceptions, had been filed, and the court was of opinion that the exceptions should be overruled and that there was due, according to the said report, to said Jesse Sturm by defendant, Downs, one hundred and twenty-nine dollars and twenty-four cents with interest from the 1st day of April, 1853, purchase money for the lot of land purchased by him from said Jesse Sturm, which was a lien on the same; it further appearing to the court that B. B. Patton, T. F. Sharp and H. Nay purchased parts of the lot of land so sold by Sturm to Dowens, from said Downs, after the purchase of the complainant, Parish, was made: the cause was again referred to a master to ascertain and report the date of each sale and also a particular description of the parcels so sold and purchased by patton, Sharp and Nay; leave was also given complainant to file an amended bill making one Peter Tetriek a party, who was a vendee of Downs to a part of the land mentioned in the bill.

Tetriek answered at the June term, 1857, alleging that part of the land, a lot containing less than one acre, was sold by Downs to Sharp, who sold it to Nay and he conveyed it in trust to E. B. Hall, trustee, who sold it under the provisions of the trust, and himself, Isaac Nay, and one Jeremiah Hess became the purchasers; that these purchasers on the 13th day of October, 1853, instituted suit in the circuit court of Marion county against Jesse Sturm, the original holder, and others to procure the legal title from said Sturm; that said sale under the trust was made with the knowledge and assent of Sturm and the other parties in interest, and a decree was had against Sturm, he failing to appear and answer, requiring him to make a deed conveying the legal title to Tetrick, Nay and Hess; which he subsequently did on the 15th day of December, 1855, and that Mess afterwards, on the 7th day of July, 1856, conveyed by deed his interest to Tetrick and Nay; and that at the time of the purchase under the trust he knew of no incumbrances or liens.

The complainant Parish, at July rules, 1858, filed an amended bill stating that he learned that Downs had divided the land purchased of Jesse Sturm into three lots, and that the one sold complainant was prior to the sales made Patton and Sharp, that sale being made on the 13th day of March, 1851, and the sales to Patton and Sharp some eight or ten months afterwards: that Sharp sold the lot bought by him to one C. H. Davis, Davis to H. Nay, who conveyed in trust to E. B. Hall, and then set up the sale under the trust and the suit against Sturm and others, as responded by Tetrick in his answer; he also alleged that he knew nothing of the suit of Tetrick and others against Sturm, although commenced long after his original suit had been brought; that said Sturm also made a deed to one N. H. 3fartin, who was a vendee of Patton, who purchased one of the lots from Downs, acknowledging payment of purchase money; that in 1855 Sturm represented to complainant that his unpaid purchase money from Downs would have to be paid, that Downs was unable to pay it, and that the complainant was induced to pay the balance to Sturm, amounting to 212 dollars and 13 cents, including interest, for which he took a receipt from Sturm, and also an instrument in writing purporting to be a refunding receipt given the complainant b...