Taylor v. Russell

• Decision Date: 04 May 1909
• Parties: TAYLOR v. RUSSELL.
• Court: West Virginia Supreme Court

64 S.E. 923

65 W.Va. 632

TAYLOR v. RUSSELL.

Supreme Court of Appeals of West Virginia.

May 4, 1909

Submitted June 8, 1908.

Rehearing Denied June 9, 1909.

Syllabus by the Court.

Except under special circumstances, a plaintiff in ejectment must for recovery have legal title and right to possession. An equitable title will not do.

[Ed Note.-For other cases, see Ejectment, Cent. Dig. § 17; Dec Dig. § 9. ^[*] ]

A plaintiff in ejectment must recover upon the strength of his own title, not the weakness of the defendant's title.

[Ed Note.-For other cases, see Ejectment, Cent. Dig. § 18; Dec Dig. 9. ^[*] ]

Character of right conferred by an executory contract for sale of land discussed.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 54. ^[*]]

Error from Circuit Court, Tyler County.

Action by W. T. Taylor against Frances Russell. Judgment for defendant, and plaintiff brings error. Affirmed.

Dave D. Johnson, for plaintiff in error.

S. Bruce Hall, for defendant in error.

BRANNON J.

W. T. Taylor brought an action of ejectment in Tyler county against Frances Russell to recover a lot of land in the town of Sistersville. The case was tried by the court on agreed facts, and the court gave judgment for the defendant, and Taylor sued out a writ of error.

Taylor showed no right but a right under an agreement selling him the lot, and stipulating for a future conveyance of the legal title on payment of deferred purchase money, which agreement was made with Josephine B. Stone and others. He showed no legal, but only an equitable, title. That fact alone bars Taylor from recovery, because it is a settled rule in this state, and in Virginia, that a plaintiff in ejectment must have legal title. No matter whether he claims for years or life or in fee, it is a hard and fast general rule, except under special circumstances, that he must have legal title. A mere equity will not do. Chapman v. Coal & Coke Ry Co., 54 W.Va. 193, 46 S.E. 262. There we find it stated in quotation from Witten v. St. Clair, 27 W.Va. 770, that: "To enable the plaintiff to sustain this action, it is essential that he be clothed with the legal title and right of possession at the time the action is instituted. The plaintiff must always in the first instance make out a legal and possessory title to the premises in controversy." Suttle v. Railroad Co., 76 Va. 284; 2 Am. & Eng. Ency. L. 10, 482. There we find also the rule: "A plaintiff in ejectment must at the time of instituting his action, and at the time of its trial, have legal title to the land he sues for." 17 Cent. Dig. 1960; Warvelle, Ejectment, 244. The Supreme Court of the United States said in Fenn v. Holme, 21 How. 481, 483, 16 L.Ed. 198: "That the plaintiff in ejectment must in all cases prove a legal title to the premises in himself at the time of the demise made in the declaration, and that evidence of an equitable estate will not be sufficient for recovery, are principles so elementary and so familiar to the profession as to render unnecessary the citation of authority in support of them." Repeated in Langdon v. Sherwood, 124 U.S. 83, 8 S.Ct. 429, 31 L.Ed. 344. See many authorities cited in Cyclopedic Digest, Va. & W.Va. Reports, 878. Do we have to state this fundamental rule over again? A person who has a mere executory agreement for the purchase of land, not a deed conveying legal title, has a mere equitable title. A court of law does not know such a title. It is only the creature of a court of equity. A court of law regards only the legal title as to land. Prior to the statute found in Code 1906, c. 90, § 20 (section 3355), the vendor by executory contract selling land could turn out the vendee in possession even though he had paid the purchase money or performed other obligations resting on him under the contract. Williamson v. Paxton, 18 Grat. (Va.) 475; Twyman v. Hawley, 24 Grat. (Va.) 512, 18 Am.Rep. 661. Why so? Because a court of law knows nothing of an equitable title to land. The vendor holds the only title it knows. It will not enforce it, except by way of an action for damages for failure to convey, treating it as a contract calling for damages for its breach, but not as passing any land rights. We find in 6 Pomeroy, Eq. Remedy,§ 838, this: "The effect of a contract to purchase is very different at law and in equity. At law the estate remains that of the vendor; and the money that of the vendee. It is not so here (in equity). The estate from the sealing of the contract is the real property of the vendee. It descends to his heirs. It is devisable by his will." See Warvelle on Ejectment, § 174. All the books tell us that in equity the vendor holds the legal title in trust for the vendee. Story's Eq. § 789. In fact, some of the authorities go so far as to say that such a contract gives no equitable title to the land even in equity until payment of the purchase money. "The oft-asserted proposition that from time of the contract for the sale of land the vendor as to the land becomes a trustee for the purchaser, and the latter as to the purchase money becomes a trustee for the vendor, who has a lien upon the land, while fully expressing the rule of equity in general application, it is nevertheless subject to some qualification. *** The essential feature of an equitable title is that it is one which appeals to equity for confirmation and enforcement. Hence a mere contract or covenant to convey at a future time on the purchaser performing certain acts does not create an equitable title. It is only when the purchaser performs or tenders performance of all the acts necessary to entitle him to a deed that he has an equitable title and may compel a conveyance. Prior thereto he has, at best, only a contract for the land when he shall have performed his part of the agreement." Warvelle on Vendors, § 176. This is held in Chappell v. McKnight, 108 Ill. 570, upon reputable authority. Strictly speaking, it is not far wrong. At any rate, until a deed is made executing a contract, the vendee has no title in a law forum. This is so true that a vendee, unless the contract otherwise provides, cannot enter into possession. "There is no implied authority for the vendee to enter. The facts are opposed to the idea that he is to come into possession of the consideration before he has complied with the contract. When the contract is silent as to the possession of the land, it remains with the vendor. The vendee if in possession, unless the contract authorize...