Thorn v. Phares.

• Decision Date: 12 December 1891
• Citation: 35 W.Va. 771
• Court: West Virginia Supreme Court
• Parties: Thorn v. Phares.

35 W.Va. 771

Thorn

v.Phares.

Supreme Court of Appeals of West Virginia.

Submitted Septembers, 1891.

Decided December 12, 1891.

1. Title Vendor and Vendee Executory Contract Purchaser.

A. purchaser of land who has acquired and holds the same by executory contract, duly executed, acknowledged, and admitted to record, has from the time it is thus admitted to record a good title against all subsequent creditors and purchasers. Chapter 74, § 4 Code (Ed. 1891) p 650.

2. Title Trusts and Trustees

Such subsequent purchaser is regarded and treated in a court of equity as a kind of trustee holding the legal title for such equitable owner as the real and true owner, and will be compelled to convey to him the legal title.

3. Description'.

The main object of a d scription of the land sold or conveyed, in a deed of conveyance, or in a contract of sale, is not in and of itself to identify the land sold that it rarely does or can do without helping evidence-but to furnish the means of identification, and when this is done it is sufficient That is certain which can thus be made certain.

4. Case in which these principles are applied. Dayton &; Dayton for appellant. Holt, Judge:

This is a suit which I shall for the present briefly designate as a "bill in equity, belonging to the general class of bills for specific performance, brought by George Thorn, plaintiff below and plaintiff here, in the Circuit Court of Randolph county, in February, 1888, against William M. Phares, as the grantee and holder of the legal title, with notice, of the land in controversy, of which plaintiff claims to be the equitable owner by written contract of purchase, executed by Mathew L. Ward, the common source of title, duly acknowledged by Ward, and admitted to record according to the statute. See section 4, chapter 74, p. 550 (Ed. 1891) Code. On the 28th of January, 1891, the court dismissed the bill as without merit, after final hearing had on bill, answer, replication, exhibits hied, and testimony taken. 1 here give the executory contract, found, as it is, in the middle of the deed of conveyance, executed at the same time and in the same way authenticated for record by one and the same act, recorded at the same time and place, as a part of one instrument, under the same law, which gives it the same effect, as to subsequent purchasers, which it gives to the granting part or conveyance of the one hundred and sixty acres conveyed, as well as sold, at the same time. The following is a copy of the deed:

"This deed, made this 15th day of September, 1875, be tween Mathew L. Ward and his wife, Amanda Ward, of the county of Randolph and the State of West Virginia, of the first part, and George Thorn, of the county of Barbour and State foresaid, of the second part, witnesseth, that for and in consideration of the sum of five hundred dollars in hand paid, the receipt whereof is hereby acknowledged, the parties of the frst part do grant general warranty unto the said George Thorn, his heirs and assigns forever, the following described tract of land, situated in the county of Randolph and State of West Virginia, lying on the top, and both sides of the top, of the south point of Ball's mountain (or Laurel Hill) about three fourths of a mile north of the Valley River pass, bounded as follows: Beginning at a poplar and hickory, corner of William Elliot's and John Scott's land, on the point of the mountain opposite the Beaver dam; running thence along the south-east side of the mountain, N., 51 E., 211 poles, to small forked chestnut oak and pointers (on sharp point) on top of a ridge near the head of John Ball's run, N, 50 W. 99 poles, to a small chestnut on top of the mountain; thence, down the west side of the mountain, S., 88J W., 139 poles, to a stake near the outside line of the old survey; thence S. 80 poles to a stake in William Elliot's line of his 500 acre survey; thence therewith S., 27 E., 125 poles, to beginning, containing one hundred and sixty acres. It is further understood that the parties of the first part are to convey to the said George Thorn any lands that may fall to said Mat hew L, Ward in the partition of lands between him and the heirs and assignees of Whitman Ward, deceased, which may lie adjoining north and north-east of the within described lands, together with their appurtenances, unto the said George Thorn forever, with general warranty.

" Witness the following signatures and seals, this 15th day of September, 1875.

"Mathew L. Ward. [Seal.] "Amanda Ward. [Seal.] "District of Leadsville, in Randolph county, to wit: "I, Everett Chenowith, a justice of the district aforesaid, in the State of West Virginia, do certify that Mathew L. Ward, whose name is signed to the writing above, bearing date on the 15th day of September, 1875, ac- knowledged the same before me in my district aforesaid. Given under my hand this 24th day of September, 1875.

"Everett Ohenowith, J. P.

"State of West Virginia, district of Leadsville, in Randolph county, to wit:

I, Everett Chenowith, ajustice of the district aforesaid, do certify that Amanda Ward, the wife of Mathew L. Ward, whose names are signed to the above writing, bearing date on the 15th day of September, 1875, personally appeared before me, in my district aforesaid, and being examined by me privily and apart from her husband, and having the writing aforesaid fully explained to her, she, the said Amanda Ward, acknowledged the said writing to be her act, and declared that she had willingly executed the same, and does not wish to retract it.

"Given under my hand this 24th day of September, 1876.

"Everett Chenowith, J. P.

"State of West Virginia, Randolph County Court Clerk's office.

"I, James D. Wilson, clerk of said court, in my office on the 18th day of March, 1876, upon the foregoing certificate of acknowledgment of the writing hereto annexed, do admit said writing and certificate to record as to the said Mathew L. Ward and wife, whose names are signed thereto.

Teste: James D. Wilson, Clerk.

A copy from the record. James I). Wilson, Clerk."

Afterwards, viz., on 24th of November, 1886, L. D. Strader, special commissioner in certain chancery suits of Leonard and others, creditors of M. L. Ward, to none of which was Thorn in any wise a party, by deed of that date, and as sold for Ward's debts, conveyed to one Phillip Thomas and defendant, William M. Phares, the purchaser of Ward's undivided five fourteenths interest in said Whitman Ward tract of two thousand acres, less one hundred and seven acres conveyed as aforesaid, as included in the tract of one hundred and sixty acres bounded and described in the deed from Ward to Thorn. Thomas afterwards conveyed his interest therein to defendant, Phares, his co-owner. During this time, and down to the present, we are bound to presume that Thorn was and has been continuously in. the actual possession of the land as a whole the one hundred and sixty acre part, and the adjoining part claiming it as his own under the executory as well as the executed part of the instrument; so that there is no one he could have sued at law for the possession were the three hundred acres regarded as conveyed if that were material, as it is not for, in our view, he did not have the legal title to the land in controversy.

Whitman Ward, the father, died intestate in the year 1862, leaving a widow and eight heirs at law, of whom Mathew L. Ward was one. The heirs at various times, without any partition, uudertook to convey to and among each other certain parts calling for a certain number of acres, and with definite locations and boundaries, with or without guaranty that it should, when partitioned, be laid on at that place; and that, if anything additional should fall to or be assigned as a part of the grantor's share, it should be laid off adjoining in certain directions the parts so allowed to be located.

To go into these sales by definite localities and boundaries is not important now, by reason of the partition ultimately made,?further than to say that it produced confusion and complexity, which the county surveyor, Nicholas Marstiller, appointed for the purpose, as a preliminary step before partition could be directed, worked out with more clearness, apparent accuracy, and painstaking labor than is generally devoted to that important preliminary step in partition. This was done in the chancery suit instituted for that purpose in the year 1886, by Washington G. Ward, one of the eight heirs of Whitman Ward, deceased, against the other heirs, or their grantees or vendees.

In this suit George Thorn was a party defendant, as well as defendant, William M. Phares, and his former co-owner, Phillip Thomas. The first order was one directing "Nicholas Marstiller toascertain and report the lands subject to partition mentioned in the bill and proceedings, the quantity thereof, by whom owned, and what interest the several parties have therein." This he did, and made the report already mentioned. He went upon the theory not to disturb the local- izations already made, more than might be necessary to a fair partition, and of assigning to eaeh heir or his vendee his remaining part adjoining these localizations; or where, on the faith of some such understanding, one or more had commenced improvements; and he particularized the place where the general scheme he followed should be departed from rather than in the other places. He supposed that the six hundred acres localized across the northern end could be left out and assigned as it was already set off; the same as to two hundred and thirty five (found to be two hundred and seventy two acres) having been before that set off to M. L. Ward in the southern end; the same as to the...