Tavenner v. Barrett
| Decision Date | 28 April 1883 |
| Citation | 21 W.Va. 656 |
| Parties | TAVENNER v. BARRETT et al. TAVENNER et ux. v. TRACEWELL, TRUSTEE, et al. |
| Court | West Virginia Supreme Court |
Submitted Jun. 20, 1882.
WOODS JUDGE, Absent.[a1]
1. An agent for the purchase or sale of an estate, though he transact the business in his own name, is generally not a proper party to a suit brought for the specific execution of the contract of sale or purchase. But if he be an agent to sell, and makes the sale, and takes of the purchaser bonds for the purchase-money payable to himself, and these bonds are secured by a deed of trust executed by the purchaser conveying other lands of his to secure such bonds, then in a suit brought by the vendor to enforce specifically such contract, and to enforce the collection of such purchase-money bond, such agent must be made a party either plaintiff or defendant, for in such case he is not simply an agent, but he is a trustee holding the legal title to such bonds for the use of the real vendor of said land. (p. 673.)
2. In such case such agent or trustee may be made a co-plaintiff with the vendor, or he may be made a defendant with the vendee, the vendor being made the sole plaintiff. (p. 675.)
3. If however the fact was, that such agent was not a trustee, but a mere agent, and could not properly be made a party to a suit for specific performance, but was improperly made a co-plaintiff with the vendor, the objection to such impropriety of proceeding would be properly made by a demurrer to the whole bill. (p. 673.)
4. To justify the court in sustaining a demurrer to a bill for a specific performance filed by a vendor, the ground of the demurrer must be a short point, upon which it is clear, that the bill would be dismissed with costs at the hearing; if the evidence to be taken might sustain the relief asked with some modification, the demurrer ought to be overruled, and the case stand to the hearing to be disposed of to its merits. (p. 680.)
5. It is not necessary, that the bill for a specific performance filed by a vendor should show, that he had a valid legal title to the land sold; on the contrary the bill could not be demurred to though it appeared on the face of the bill, that he not only did not have a good title to the land, but that he had not any title legal or equitable to a portion of the land, and that he never could acquire a good title thereto provided this portion was an insignificant part of the land sold, as the court would in such case decree specific performance with compensation. (p. 680.)
6. In such cases generally time is not regarded as of the escence of the contract, and the vendor's title may have been imperfect when he sold the land or when he brought the suit it is sufficient if he can make it perfect before the report is made upon it during the progress of the suit, and time is frequently given him for that purpose; hence he cannot be required to tender and file a good deed with his bill. (p 680.)
7. On a contract for the sale of land the vendor is entitled to a general warranty deed, where the vendor is seized of the land in his own right, unless the contrary is agreed upon; but if the vendor be an executor, trustee or commissioner of the court, the vendee is entitled to a deed with special warranty only. (p. 681.)
8. Where a party purchases land of a special commissioner of the court, and his purchase is confirmed, but before a deed is made to him, he executes a power of attorney to the special commissioner authorizing him to sell this land for him, and the special commissioner does so and signs a written contract agreeing to convey this land to the purchaser on the payment of the whole of the purchase-money, signing the contract as special commissioner and attorney in fact of the first purchaser. Held:
The true meaning of such contract is, that the sub-purchaser takes a deed from the special commissioner with the assent of the first purchaser, and therefore he is in such case only entitled to a deed with special warranty of title. (p. 682.)
9. If a report be made showing the liens on a debtor's land and their priorities, which the bills asks may be sold, and afterwards a demurrer to the bill is sustained, and an amended bill filed making a large number of lienors parties who were not parties to the suit originally, such commissioner's report ought not to be confirmed, but a new order of reference should be made by the court to ascertain the liens. (p. 684.)
10. A decree can not be made between co-defendants, unless it be based on pleadings and proofs between the plaintiffs and defendants. But in a bill asking, that the liens on a debtor's land be audited, and their amounts and priorities settled, and the debtor's land sold to pay the same, though the bill admits, that a particular debt is a lien and is unsatisfied, the debtor or any other lienor may dispute the validity of such lien, and such a controversy may be decided by the court without violating the above rule. (p. 685.)
11. A deed of trust if executed by a man and his wife to two trustees to secure a debt, the grantors in the deed acknowledge it before one of the grantees, a trustee, as a notary public, and on this acknowledgment it is admitted to record. Held:
Such acknowledgment and recordation are invalid, and the deed is an absolute nullity as to the married woman, and is to be regarded as an unrecorded deed as to the male grantor. (p. 687.)
12. A certificate of a privy examination, which fails to show, that the married woman had the deed fully explained to her is fatally defective, and the deed void as to her. (p. 670.)
13. Common law judgments or judgments of justices of the peace against a married woman on her contracts made during coverture, and judgments rendered by courts having no jurisdiction in such cases, are nullities creating no lien on her separate real estate. (p. 692.)
Appeal from and supersedeas to a decree of the circuit court of the county of Wood, rendered on the 18th day of October, 1879, in two causes in said court then pending, which were heard together, in one of which Ann R. Tavenner was plaintiff, and C. G. Barrett and others were defendants, and in the other of which C. G. Barrett and wife were plaintiffs, and R. C. Tracewell, trustee, and John Buford were defendants, allowed upon the petition of The Life Insurance Company of Virginia and of C. G. Barrett and Sarah V. Barrett, his wife.
Hon. J. M. Jackson, judge of the fifth judicial circuit, rendered the decree appealed from.
GREEN, JUDGE, furnishes the following statement of the case:
These are two separate appeals, the one by The Life Insurance Company of Virginia, and the other by C. G. Barrett and Sarah V. Barrett, his wife, from a decree entered by the circuit court of Wood county, on October 18, 1879, in two causes pending in said court, in one of which Ann R. Tavenner was plaintiff, and C. G. Barrett and others were defendants, and in the other C. G. Barrett and Sarah V. Barrett, his wife, were plaintiffs, and John Buford and R. C. Tracewell, trustees, were defendants, which causes had by consent of parties been consolidated and were heard together. The facts which appear in these two records are as follows: Daniel Stone by his will proven in May, 1865, devised jointly to Caleb G. Barrett and his wife, Sarah V. Barrett, the testator's daughter, his home-farm together with one hundred and fifty-six acres of land on the west side of Neal's run in the said county of Wood. On the 16th day of April, 1877, Caleb G. Barrett borrowed of John Buford six hundred dollars at twelve per cent. per annum, and gave his note for the principal and one year's interest, in all six hundred and seventy-two dollars, payable on April 16, 1878. A deed of trust was given on the said home farm, devised to Barrett and wife by her father, to secure the note, in which R. C. Tracewell was trustee. The deed was acknowledged by Barrett and wife on the day on which it bears date, April 16, 1877, but so far as the wife Sarah V. Barrett was concerned, the acknowledgment was fatally defective, in that it did not show, that the deed was fully or indeed in any manner explained to her.
This home-place was advertised for sale by the trustee, R. C Tracewell, on July 15, 1878. The sale was adjourned to August 12, 1878. Caleb G. Barrett and Sarah V., his wife, filed their bill and obtained from the judge of the circuit court of Wood county on August 9, 1878, an injunction forbidding the making of said sale. John Buford filed his answer admitting the above facts, but claiming that the loan was made in Belpre, Ohio, where the legal rate of interest was eight per cent. per annum. This answer was replied to generally and also specially, in which they deny, that this loan was made in Ohio. The court on March 17, 1879, pronounced the deed of trust void in so far as it conveyed the interest of Sarah V. Barrett in said home-farm, and perpetuated the injunction in so far as it forbid the sale of her interest in said home-farm to pay said debt. It also purged the debt of the usurious interest, but permitted it to stand for the money loaned and six per cent. interest thereon, and dissolved the injunction in so far as it forbid the sale of the interest of C. G. Barrett in said home-farm, and decreed the cost of the suit against Buford. The trustee, R. C. Tracewell, then again advertised the interest of C. G. Barrett in said home-farm of seventy acres, known as the Daniel Stone farm, and John Buford became the purchaser thereof at eight hundred dollars. R. C. Tracewell, the trustee, made him a deed therefor dated July 7, 1879, which was admitted to record July 12, 1879. In the meantime on the first Monday in August, 1878, Ann R. Tavenner and J. T. Tavenner, her attorney in fact, filed a bill i...
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