Sw. Va. Mineral Land Co v. Chase

• Decision Date: 22 July 1897
• Citation: 95 Va. 50,27 S.E. 826
• Parties: SOUTHWEST VIRGINIA MINERAL LAND CO. v. CHASE.
• Court: Virginia Supreme Court

27 S.E. 826

95 Va. 50

SOUTHWEST VIRGINIA MINERAL LAND CO.

v.CHASE.

Supreme Court of Appeals of Virginia.

July 22, 1897.

Vendor and Purchaser—Title—Waiver op Objections—Vendor's Lien — Judicial Sales-Trivial Objections — Commissioner's Bond-Appeal—Amendment — Custom and Osage — Evidence.

1. A company purchased lands with notice that trees growing thereon had been previously sold to another, though no mention of the fact was made in its deed, and without objection it paid part of the price in cash, and gave two notes for the balance. The first note it paid, and it obtained an extension on the other, and paid part of it. When pressed for final payment, it demanded an abatement of the price on certain grounds, but not until after suit brought, five years after sale, did it claim an abatement on account of not having received the trees with the land. Held, that it had waived any right to abatement on such ground.

2. The commissioner appointed to conduct a sale decreed to foreclose a vendor's lien was instructed not to sell until certain lands had been measured, and their value credited to defendant. The sale was in fact conducted before the measurement and credit. Held, the amount of the credit being only about two dollars, that the maxim, "De minimis non curat lex, " applied.

3. A decree directing a commissioner for the sale of land to give bond before the clerk of any court other than the one making the decree is erroneous, as contrary to Code, § 3398, but, the decree being interlocutory, the appellate court will amend it without reversing, and order the bond to be given before the clerk of the proper court.

4. A local custom or usage, not expressly mentioned in an agreement, cannot be relied upon as controlling the agreement, unless it is shown to be an established usage or custom, general and notorious in the locality.

5. The testimony of a single witness will not be sufficient to establish a local custom unless witness has full knowledge and long experience on the subject, and gives explicit testimony as to the universality and duration of the custom, and is uncontradicted.

Appeal from circuit court, Russell county.

Bill by J. T. Chase against the Southwest Virginia Mineral Land Company to foreclose a vendor's lien. From a decree in favor of complainant, defendant appeals. Modified.

It. T. Irvine and J. F. Bullitt, Jr., for appellant.

E. M. Fulton, for appellee.

BUCHANAN, J. One of the errors assigned in this case is that the court ought to have allowed an abatement of the purchase price of the land for the loss of 119 walnut trees standing upon the land when sold and conveyed, winch had theretofore been sold to other parties, but were not excepted or reserved In the deed. On the 1st day of January, 1887, the appellee executed and delivered to W. T. Miller a writing in the following words: "I hereby authorize and empower Wm. T. Miller, of Wise C. H., Va., to sell a certain boundary of land owned by me, situated in Wise Co., Va., on Indian creek, Indian ridge, and Glady Fork of Pound river, being the land on which I now live, containing four thousand acres, more or less, for which said Miller, or his assignee, is to pay me the sum of three dollars and ninety cents per acre, one-third of which is to be paid by the 1st day of Sept., 1887, one-third in six months thereafter, and the residue in twelve months from the said 1st day of September, 1887; and upon the receipt of the said first payment, if so requested by the said Miller, or his assignee, I bind myself to make said Miller, or his assignee, a general warranty deed to said land in fee simple, retaining a vendor's lien for said deferred payments. But should said Miller fail to make said sale by the 1st day of September, 1887, or should he, or his assignee, fail to make said first payment by the 1st day of September, 1887, then this agreement, at the option of either party, is to be null and void. Witness the following signature and seal the 1st day of January, 1887. J. T. Chase. [Seal.]"

Miller was informed by the appellee that he had sold the trees to Horsely, Tate & Co., and that they would not pass with the land. This contract, or writing, after several assignments, was acquired by J. F. Gilliam. On the 30th day of May following, Gilliam entered into a contract with Myers and Gerow, who were making contracts for the purchase of lands for the appellant, a corporation not then organized, by which he undertook to make or cause to be made to Myers and Gerow a good and sufficient deed to the land with covenants of general warranty, if they, after 30 days' time (given them to examine the land), determined to purchase. The terms of sale were part cash and the residue on time. Very soon after Myers and Gerow determined to take the land, they learned from the abstract of title furnished them by their attorneys that the appellee had sold and assigned the walnut trees to other parties, who had recorded their deed therefor, and were also informed by the appellee that the trees had been sold. In August following, the appellee conveyed the land to the appellant, with covenants, among others, of general warranty, and covenants against incumbrances and quiet enjoyment, without reserving or excepting the trees. At that time the appellant executed its two notes for the deferred payments, payable in six and twelve months from date, without demanding any abatement of the purchase price for the loss of the trees. It afterwards paid the first note, asked for and obtained an extension of credit for another year upon the last note, and, after the expiration of that year, paid $1,500 upon it. When pressed for the residue of that note in the year 1891, it demanded an abatement of the purchase price because a recent survey showed that there was not as much land as was supposed when it executed its notes, and also demanded a credit for two other items, but claimed no abatement on account of the loss of the trees until after this suit was brought, in 1892, although it had full knowledge during all that time that the trees had been sold to other parties.

Having knowledge of all the facts before it executed its notes for the land, If it intended to make any objection to the sale, or to demand an abatement of the purchase price, on account of its failure to get the trees, such objection or demand ought to have been made at that time. Good faith and fair dealing required this, for it knew that the trees had been sold to other parties, and that the appellee did not intend to sell and could not convey them to it. Its conduct then and afterwards shows that it waived that objection to the sale, and that its demand nearly five years afterwards for an abatement of the purchase money was an afterthought. Its claim was properly disallowed under all the circumstances and facts of the case.

Another error assigned is to the action of the court...