Thompson's Adm'r v. Catlett,

• Decision Date: 20 September 1884
• Court: West Virginia Supreme Court
• Parties: Thompson's Adm'r v. Catlett,

24 W.Va. 524

Thompson's Adm'r

v.Catlett,

Supreme Court of Appeals of West Virginia.

Submitted January 24, 1884

Decided September 20, 1884.

(*Snyder, Judge, Absent.)

1. Where there is a contract for the sale of a tract of land by the acre, which is represented to contain a specified number of acres, and it is ascertained there is a deficiency in quantity, a court of equity of will even after conveyance is executed abate the value of the deficiency at the stipulated price by the acre from the purchase-money remaining-unpaid, (p. 539.)

2. A court of equity will not stay or prevent the collection of the purchase-money for the sale of land on the ground of defect of title, after the vendee has taken possession under a conveyance from his vendor with covenants of general warranty, unless the title is questioned by suit either prosecuted or threatened; or unless the purchaser can show clearly that the title is defective. (p. 540.)

3. A. being the owner of a tract of land supposed to adjoin a tract of land owned by B. but which in fact covers a part of B.'s tract, which fact is well known to A., who afterwards enters into a contract with, and obtains a conveyance with covenants of general warranty from B. for all of his tract at a specified price by the acre, he will not be entitled to withhold payment of the purchase-money of so much of B.'s land as interlocks with A.'s land, upon the ground that A.'s title to the interlock held by him, before he made.such purchase, is an older and better title than that derived from B., except upon the clearest proof, that the title so acquired from B. was absolutely defective, (p. 539.)

4. A commissioner's report, if erroneous upon the face thereof, may

be objected to at the hearing although not excepted to, but unless excepted to, it cannot be impeached at the hearing by adult parties on grounds, which may be affected by extraneous evidence; and if such adult parties fail to except to the report they will be presumed to have acquiesced in its correctness, not only as far as it settles the principles, on which the account is stated, but also in regard to the sufficiency of the evidence upon which it is founded, (p. 540.)

5. After a commissioner has completed his report he is required by

section 7 of chapter 57 of the Acts of 1882, to retain it ten days for examination, unless otherwise ordered by the court or agreed by the parties, during which time any of the parties may except thereto; and if excepted to, it is made the duty of the commissioner to return the exceptions with such remarks as he may deem pertinent, and the evidence relating thereto, (p. 541.)

6. If no exceptions be filed to a report, while the same remains in

the hands of the commissioner, he is not required to return with his report the evidence which was before him, and on which he acted, (p. 541.)

7. If the report of the commissioner is not excepted to, while it

remains in bis hands, the evidence that was before him, on which he acted, forms no part of his report, unless made so by the report itself or by the order of the court, (p. 541,)

Woods, Judge, furnishes the following statement of the case:

On January 19, 1871, Joel McPherson and Samuel Thompson for the consideration of three thousand one hundred and i thirty-five dollars, by deed of that date, with covenant of i general warranty, conveyed to the defendants, Howell Fisher ! and R. H. Catlett, one undivided half of a tract of land in Greenbrier county containing six hundred and twenty acres, and also the whole of another tract of land in said county, situated on the waters of the North Fork of Anthony's creek, a tributary of the Greenbrier river, adjoining the lands of Jacob Van Buren and others, supposed to contain seven hundred and thirty-five acres, which land was sold at the price of three dollars per acre to be thereafter surveyed. It was expressly stipulated in the deed, that "in the event said tract of seven hundred and thirty-five acres should upon survey contain more than seven hundred and thirty-five acres, the said grantees should pay the grantors for the excess at the rate of three dollars per acre, and should the tract fall short of seven hundred and thirty-five acres, then the grantors were to pay to the grantees at the rate of three dollars per acre to make the tract contain seven hundred and thirty-five acres." This deed so made contained an exact description of both of said tracts by metes and bounds, and was duly recorded on January 28, 1871. At the time of the execution of said deed, the grantees paid to Samuel S. Thompson and Joel McPherson each the sum of five hundred and twentytwo dollars and fifty cents, and executed to each of them two obligations for the sum of five hundred and twenty-two dollars and fifty cents, dated January 19, 1871, payable respec tively in one and two years thereafter with interest, the payment of which was secured by a vendor's lien upon said lands retained in said deed. The obligations executed to McPherson were paid as they fell due. On July 12, 1871, said Thompson for value received, assigned to Samuel Coftman the obligation of Fisher and Catlett of five hundred and twenty-two dollars and fifty cents, which was payable two years after the date thereof. The other obligation he retained at the time of his death. Samuel Coffman also died and the said obligation assigned to him fell into the hands of his administrator. The lands conveyed by said deed from the date thereof has remained in the undisturbed and undisputed possession of said Fisher, Catlett and their vendees, and no suit to evict them has ever been brought or threatened. The tract of seven hundred and thirty-five acres-was granted by the commonwealth of Virginia to said McPherson by patent dated November 1, 1855, and the tract of six hundred and twenty acres was in like manner granted McPherson and two others, by patent, the date whereof does not appear. It further appears from the record in these causes, that on July 1, 1851, the said commonwealth granted to one John Mallow two thousand three hundred and ninety acres of land, and afterwards on December 1, 1852, it granted to him another tract containing one thousand one hundred and thirty acres, both situated in Greenbrier county. These two tracts of land became the property of Jacob Van Buren, who on November 22, 1870, by deed of that date-conveyed the same with other lands, to said Fisher and Catlett, covenanting with them " to warrant generally the lands thereby conveyed; that they have the right to convey the same to them; that the said vendees shall have quiet possession of the same free from all incumbrances, and that they will execute such further assurances of said land as may be requisite." For this land said vendees agreed to pay six thousand dollars, of which two thousand dollars were paid in hand, and the residue was to be paid in two equal annual installments with interest, secured by a vendor's lien retained on said land.

In October, 1881, William M. Coffman and. A. H. Rader as the administrators of Samuel Coffman, and J. W. Johnston as the administrator of Samuel S. Thompson, severally filed their bills in the circuit court of Greenbrier county against said R. IT. Catlett, and the administrator of Howell Fisher, then dead, and other defendants claiming under them to enforce payment of said two obligations of five hundred and twenty-two dollars and fifty cents each, held by their respective intestates, alleging the sale of said lands by said McPherson and Thompson to Fisher and Catlett at the price of three thousand one hundred and thirty-five dollars; the execution of said two obligations for the unpaid purchasemoney due to Thompson; the assignment of one of them to said Samuel Coffman as hereinbefore stated; the execution of the deed, of which a copy was filed as part of the bills; the reservation of the lien; the non-payment of the obligations; the levy of attachments upon the interest of Catlett in other lands owned by him in said county, and praying for a sale of the said lands conveyed by McPherson and Thompson to Fisher and Catlett, and of so much of the lands attached as may be sufficient to pay the amounts due the respective plaintiffs, and for general relief.

None of the defendants having appeared in said causes, they were, on the 11th day of November, 1881, heard together, and the court entered therein the following decree: "The orders of publication having been regularly taken and executed upon the non-resident defendants, and the subpoenas having been served upon the home defendants, and the said defendants still failing to appear and answer plaintiffs' bills, the said bills are taken for confessed as to the said home defendants; and these two causes having been regularly matured and set down for hearing at rules, came on this the 11th day of November, 1881, to be heard together upon the subpoenas executed, the orders of publication, regularly taken and executed, and the bills taken for confessed, as aforesaid, the exhibits, the orders of attachment sued out and levied, and were argued by the plaintiffs' counsel. And it appearing to the court that there is due from the defendant, R. H. Catlett, and from the estate of How-ell Fisher, deceased, to the plaintiffs in each of said suits, respectively, the sum of five hundred and twenty-two dollars and fifty cents, with interest thereon from the 19th day of January, 1871, until paid, which said sums amount, each, as of this date, principal and interest aggregated, to eight hundred and sixty-two dollars and ten cents, and that the plaintiffs have and hold therefor vendor's liens upon the undivided one half of two tracts of land, containing in the aggregate one thousand and fortyfive acres, situated on the North Fork of Anthony's creek, which were sold and conveyed by the said S. S. Thompson and Joel McPherson to the said R. H. Catlett and Howell Fisher, and that by virtue of the attachments sued out and levied as aforesaid,...