VICKERS v. SISSON'S ADMR. et als.

• Decision Date: 28 April 1877
• Citation: 10 W.Va. 12
• Parties: VICKERS v. SISSON'S ADMR. et als.
• Court: West Virginia Supreme Court

10 W.Va. 12

VICKERS

v. SISSON'S ADMR. et als.

Supreme Court of Appeals of West Virginia.

Decided April 28, 1877.

A plaintiff files his bill for the specific performance of a verbal contract for the purchase of land, setting forth specifically the contract, the amount of the purchase money, and that the same had been paid to the vendor; that the plaintiff was in possession of the land at the time of tbe purchase, and had made valuable improvements thereon, upon the faith of said contract. Held:

These allegations, if sustained by satisfactory proof, will entitle the purchaser to a specific performance of the contract, in a court of equity, notwithstanding the statute of frauds.

An appeal, by the widow and heirs of Henry C. Sisson, deceased, from a decree of the circuit court of Kanawha county, rendered on the 23d day of June, 1874, in a chancery cause, wherein Thomas A. Vickers was complainant, and the administrator and administratrix, and the widow and heirs at law of Henry C. Sisson, deceased, were defendants.

The material allegations of the bill are given in the opinion of Moore, Judge, by which, it will be seen, that the complainant sought the specific execution of a verbal contract, for the purchase of real estate, alleged to have been made with said Henry C. Sisson, in his life time.

The adult defendants filed their joint and several answers, the material part of which will be found quoted, by the Judge, in his opinion. They also filed a special plea, relying upon the " statute of frauds." The infant defendants' answer was filed by their guardian ad litem. The testimony in the cause, though somewhat conflict- ing, shows that about the year 1856 or 1857, Henry C. Sisson made a verbal contract with the plaintiff, to sell to him a certain house and lot, which was then in the possession and occupancy of said plaintiff as a tenant of said Sisson, at the price of $200, a part of which was paid in cash, but directly afterwards borrowed by the plaintiff from Sisson, that the plaintiff continued in possession of the land, used and occupied it as his own, placing at times valuable improvements upon it, until about the commencement of the late war, when, it appears, he abandoned it, for the purpose of going into the "Confederate army," but left his wife upon the property, living in the house. She remained there for some time, and upon leaving, placed a tenant in possession of it, who occupied it a short time. It also seems, from the weight of evidence, and especially appears from the declarations of Henry C. Sisson, made in his life time, that the purchase money had been paid, that he admitted the sale to Vickers, and it further appears that he had placed tenants in the house during the absence of Vickers, with the declaration that the property was the property of Vickers, and that they must take care of it for him.

It further appears, from the testimony, that the defendants remained in full possession of the property from the time of the death of Henry C. Sisson, which happened some time during or near the close of the war and before the return of the plaintiff, and it does not appear that the complainants ever demanded the property after his return, or after the close of the war, or sought, in any way to recover it, until the bringing of this suit, to Auust Rules, 1871.

William H. Hogeman, for the appellants:

Before equity will decree the specific execution of a contract for the sale of real estate, the fact of the contract must be clearly proved.

2 Story's Eq. Jur., sec. 764; Pegg v. Corder, 12 Leigh, 77; Wood v. Farman, 10 Watts (Pa.), 195: Charnley v. Hansebury, 13 Pa. St., 16, Primtep v. Mitchell, 17 Ga., 558; Pur cell v. Moses, 4 Wall. 517; Lowry v. Buffngton, 6 W. Va. 254; Wilson v. Wilson, 6 Mich., 9; Smith v. McVeigh, 11 N. J. Eq., 239; McCue v. Johnson, 25 Pa. St., 306; Patrick v. Lovell, 3 W. Va. 23; Anthony v. Leftwich, 3 Rand., 246; Fairbother v. Ihan, 4 Iowa, 279; Lobdell v. Lobdell, 36 N. Y., 327; Senis v. McEvan, 27 Ala., 184; Carder v. Lasater, 36 Ill., 182; Brewer v. Wilson, 17 N. J. Eq., 184; Sage v. McGuire, 4 Watts & S. (Pa.); Rowton v. Bowton, 1 Har. & M., 92.

The subject matter of the coutract must clearly appear, so that when a conveyance is ordered the land to be conveyed may be so described that it can be distinguished from other lands:

Johnson v. Kellog, 7 Heisk. (Tenn.), 262; Hyde v. Cooper, 13 Rich. (S. C.) Eq., 254; 21 Mich., 497; Jordan v. Deaton, 23 Ark., 704; Ferris v. Irwing, Millard v. Ramsdell, Harr. (Mich.), 373; Shelton v. Church, 10 Mo., 774; C & C B. B. Co. v. Stewart, 18 N. J. Eq., 489; Prater v. Miller, (3 Hawks N. C), 628; Johnson v. Craig, 21 Ark., 533; Jordan v. Fay, 40 Me., 130; Graham v. Herndron, 5 Munf., 185; Copps v. Holt, 5 Jones, N. C. Eq., 153; Dobson v. Little, 5 Coldw. (Tenn.), 616; Taylor v. Ashley, 15 Tex., 50; Bracken v. Hambrick, 25 Tex., 408.

It does not appear that the party who it was alleged entered into the contract with the appellant had done so or was capable of doing so:

Ferrier v. Buzick, 2 Iowa, 136; Fitzpatrick v. Featherstone, 3 Ala., 40; Nicoll v. Carr, 35 Pa. St., 381; Shields v. Tramwell, 19 Ark., 51.

The statute of frauds was a complete defense in this case, and that the possession alleged did not tend to prove a contract:

2 Story's Eq. Jur., § 763; 37 Conn., 9; Antony v. Leftwich, 3 Rand., 247; 26 Md., 75; Spalding v. Cinzel- man, 30 Mo., 177; McMall v. Jones, 21 Ark., 27; Dansforth v. Laney, 23 Ala., 274; 25 Mo., 63; Cole v.' Potts, 3 N.J. Eq. (2 Stock.), 675; Knott v. Hawing, 19 Wis., 99; Mohana v. Blukt, 20 Iowa, 142; Chambliss v. Smith, 30 Ala., 369; Haslet v. Haslet, 6 Watts (Pa.), 464.

The delay of the plaintiff in bringing his suit was a strong reason for assuming an abandonment, and for refusing specific execution;:

Richardson v. Baker, 5 Call., 514; Anthony v. Leftwich, 3 Rand., 252, 263; Pegg v. Corder, 12 Leigh, 78; Cooper v. Carlisle, 2 N. J, Eq., 529; Eyre v. Eyre, 19 X. J. Eq., 102; 21 N. J. Eq., 122, 405; Hare & Wal. Lg. cases in Eq., part 2, vol. 2, pp. 13, 14; Porter v. Daugherty, 25 Pa. St., 405; Glasscock v. Nelson, 26 Tex., 150; 37 N. J. Eq., 102; Johnson v. Hopkins, 19 Iowa, 49; McMillan v. McMillan, 7 T. B. Mon. (Ky.), 560; Colvert v. Nicholas, 8 B. Mon. (Ky.), 264.

Appellant's counsel in a note filed with his brief cited also the following authorities:

8 Gratt., 197; 9 Gratt, 6; 4 Walk, 517'; 6 W. Va. 254; 2 Story's Eq. Jur., 764; 12 Leigh, 77; 21 Mich, 491.

Charles Hedrick and Geo. 8, Couch, for appellees:

The bill makes a proper case on which to base a decree for specific performance. Code, W. Va., eh. 125, § 35; Lowry v. Buffnglon, 6 W. Va. 254.

Moore, Judge, delivered the opinion of the Court:

Thomas A Vickers, at rules in the clerk's office of the circuit court of Kanawha county, August 1871, filed his bill in chancery against the administrator, administratrix, widow and heirs of Henry C. Sisson, deceased, alleging " that in the year 1856, he purchased of Henry C. Sisson, since deceased, at the price of $200, a lot or parcel of land, with a house thereon, situate in Kanawha county, near Sissonville, containing about four acres. The contract was a verbal one, and included as appurtenant to said land the use of wood and timber necessary therefor from the adjoining lands of said Sisson. Complainant was living on the place under a year's lease at the time of the purchase, and continued in possession under this purchase until the beginning of the late war, when he was compelled to abandon the county on account of his political opinions. His wife continued in possession until September, 1861, when she left the place for another owned by plaintiff in Putnam county. When she left she put a tenant, one Bostwick, in the house, Complainant paid the full amount of the purchase money to said Henry C. Sisson in his life time, and said Sisson then offered to make him a deed for the said property, but on account of the trouble that came on, it was not done. He died in the year 1865, without making a deed., The land was surveyed, and a map thereof made by A. P. Sinnett, a surveyor, at the instance of said Sisson, &c. * * * * Besides paying in full for said property as aforesaid, complainant has made permanent and valuable improvements thereon." Complainant prays that a deed shall be made him for the property, and such relief as the circumstances of his case may require. The adult defendants filed their joint answer, by which they do not deny the parole contract, but admit that of their own knowledge they know but little of the transactions between plaintiff and Henry C. Sisson, but say," they are, however, informed and so charge that the complainant has not paid any part of the sum of $200, which in the said bill is alleged was the price agreed upon for the parcel of land therein mentioned; that at the time the said Vickers family left the said parcel of land, it was understood and considered by all parties to be a complete abandonment of the agreement between Henry C. Sisson and complainant." They call for " strict legal proof" of a full compliance of all the requisites of an agreement made...