Welfley v. Iron

• Decision Date: 30 September 1887
• Citation: 83 Va. 768,3 S.E. 376
• Court: Virginia Supreme Court
• Parties: Welfley v. Shenandoah Iron, L., M. & M. Co. and another.

3 S.E. 376

83 Va. 768

Welfley

v.Shenandoah Iron, L., M. & M. Co. and another.

Supreme Court of Appeals of Virginia.

September Term, 1887.

1. Specific Performance—Contract for Sale of Land—Unrecorded Deed.

Plaintiff purchased of defendants a piece of land, paying part cash; the balance of purchase money to be paid in one and two years. Plaintiff took possession of the lot, and built valuable improvements thereon, but did not call for a deed until a few months before the last installment was due; at which time he learned that defendants had conveyed the same lot to one M., the son of the president of defendant corporation, by a deed antedating the purchase of plaintiff, but which had not been recorded, and was not recorded until plaintiff had made his demand for a deed. Upon the same day that the deed to M. was recorded, a deed was also recorded from M. conveying the same lot back to defendant. Held, that defendant was bound by its written contract of sale with plaintiff, and the latter's right to specific performance of the contract could not be defeated by the pretended or actual unrecorded deed to M.

2. Same—Simulated Conveyance.

In an action for specific performance of a contract for the sale of land, defendants introduced evidence to the effect that plaintiff had requested them to niake the deed to one M., for the purpose of defrauding the creditors of plaintiff. Held, that defendants, showing themselves to be particeps fraudis, could not defeat plaintiffs claim with the defense of the fraudulent transaction.

3. Corporations—Actions against—Corporate Name.

The fact that a corporation has changed its name, without any change in its mem bership, is no defense to an action instituted against it under its former name. 4. Pleading—Evidence—Under Issues.

Where the answer of defendants does not charge or even intimate fraud against plaintiff, and it was nowhere put in issue by the pleadings, proof of fraud cannot be introduced at the trial.

Park & Welfley, for appellant. Menefee & Smoot, for appellees.

Fauntleroy, J. This is an appeal from a decree of the circuit court of Page county, entered on the twenty-fourth day of April, 1885, in a chancery suit instituted in said court by A. J. Welfley, Appellant, v. The Shenandoah Iron, Lumber, Mining & Manufacturing Company and Benjamin Milnes, to enforce the specific performance of a contract entered into by said Welfley with the said company. The complainant filed an original and an amended bill; and they both allege that, on the seventh day of December, 1882, the appellant (A. J. Welfley) purchased of the appellee (the Shenandoah Iron, Lumber, Mining & Manufacturing Company) lot No. 6, section D, in the town of Milnes, Page county, Virginia, for $150, payable $50 at the time of the purchase, and the residue in semi-annual installments, with 6 per centum interest on the first days of June and December, 1883 and 1884. That on the seventh day of December, 1882, appellant paid the cash payment of $50 on the said lot, to Charles H. Price, assistant secretary of the said company, who was fully and expressly authorized by the said company to negotiate, sell, and convey the same, and to receive the purchase money, and who, at the time, executed and delivered to appellant the receipt for the same, which is filed with the original bill, as follows: "Milnes, Va., December 7, 1882. Received of Mr. A. J. Welfley fifty dollars, being the first installment on lot 6, section D, sold him this day for $150, payable, $50 at time of sale, and balance in semi-annual installments, with 6 per cent, interest on first days of June and December, 1883 and 1884. Charles H. Price, Asst. Secretary." That appellant at once, with the knowledge and consent of the appellees, took possession of the said lot, and built a dwelling-house and other valuable improvements thereon, at a cost of $2,000, or more; and has lived upon the said lot from the completion of the said improvements to the present. That on or about the first day of February, 1884, some months before all the said deferred payments of the purchase money became due under the terms of the said contract, appellant offered to anticipate the payments, and to pay the whole residue of the purchase money on the said lot, and demanded a deed to himself for the said lot, which said Price, secretary, promised should be prepared, executed, and delivered to appellant on the twentieth day of February, 1884, the day designated by appellant on which he would pay the said residue of the purchase money. That before the said twentieth of February, 1884, appellant learned for the first time that the said lot had been conveyed by the said company to Benjamin Milnes, by deed dated December 1, 1882, but which had not been recorded, when appellant demanded his deed, and which was not recorded till February 25, 1884, at which time a deed was also recorded from Benjamin Milnes, dated February 18, 1884, conveying the said lot, with the improvements thereon made by appellant, back to said Shenandoah Iron, Lumber, Mining & Manufacturing Company.

The bills charge that the said company and Benjamin Milnes perpetrated a fraud upon appellant, and pray that the said deeds may be revoked, and the said lot be conveyed to appellant; and they aver that appellant had no knowledge or intimation that the said deed had been, or would be, made to Benjamin Milnes, until, in February, 1884, he learned that said Benjamin Milnes had in his possession a deed from the said company to him, dated December 1, 1882, for the said lot; whereupon appellant at once made demand upon the said company to comply with their contract made with appellant, and to execute and deliver to him a deed for the said lot; and, upon the refusal of the said company to do so, appellant instituted this suit, and filed his original and amended bills.

The defendants (appellees) answered the bills, and demurred, upon the ground that the defendant company had changed its name since the suit was instituted, and without any change of membership; which demurrer the court overruled, and ordered the cause to proceed in the name of the Shenandoah Iron Company. Depositions were taken, and upon the final hearing the billswere dismissed, at the cost of complainant, on the holding of the court that the complainant had been guilty of fraud, and therefore it could not grant the prayer of the bills.

The answers of the appellees do not charge, or even intimate, fraud against the appellant, but, on the contrary, expressly deny it; and it is nowhere put in issue in the pleadings. "Fraud not put in issue by pleadings, cannot be introduced by depositions." Knibb's Ex'r v. Dixon's Ex'r, 1 Rand. 249. "Fraud is never presumed; it must not only be alleged, but it must be strictly and clearly proved as alleged." Crebs v. Jones, 79 Va. 381-384. "Fraud, since it must be clearly proved, must be distinctly alleged." Gregory v. Peoples, 80 Va. 355-359. "Evidence as to matters not noticed in the pleadings will be of no avail." "Where the defendant stated upon his answer, certain facts as evidence of a particular case which he represented to be the consequence of those facts, and upon which he rested his defense, he was not permitted, afterwards, to make use of the same facts for the purpose of establishing a different defense from that to which, by his answer, he had drawn the plaintiff's attention." Sand. Eq. 325, and notes 272 and 273; Daniell, Ch. (Ed. 1871) 712, 713; Sale v. Dishman's Ex'rs, 3 Leigh, 548. "A court of equity can only decree upon the case made by the pleadings." Mundy v....