Whittaker v. Sw. Va. Improvement Co. * (Holt

• Citation: 34 W.Va. 217
• Parties: Whittaker v. Southwest Va. Improvement Co.* (Holt, Judge, absent.)-
• Decision Date: 28 November 1890
• Court: Supreme Court of West Virginia

34 W.Va. 217

Whittaker

v. Southwest Va. Improvement Co.* (Holt, Judge, absent.)-

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1890.

Decided November 28, 1890.

1. Rescission of Contract Fraud.

To annul a contract for fraud, the fraud must be clearly proven.

2..Rescission of Contract Duress.

A threat to bring a civil suit to enforce the execution of a deed for land, unless a party make such deed, will not constitute such duress as will avoid such deed.

3. Rescission of Contract-Fraud Laches.

He who elects to set aside his contract for fraud, must bring suit for the purpose, without unreasonable delay, after discovery of the fraud, unless there be good reason to excuse it; otherwise his delay will deny him relief.

4. Demurrer Practice.

The defence of laches may be mace by demurrer, when the facts manifesting it appear in the bill.

Johnson § Hale, A. W. Reynolds and J. S. Clark for appellant.

Johnson $ Hale and Reynolds cited:

95 U. S. 157; 1 Rom. Eq. Juris. §§ 418, 419 and n.; 79 Va. 4(38; 43 N". J. Eq. 323; 82 Va. 383; 77 Pa. St. 228; 99 Pa. St. 295; 44 Pa. St, 14; 8 W. Va. 410; 18 W. Va. 140; 21 W. Va. 469; 23 W. Va. 100; 30 W. Va. 182; 31 W. Va. 576; 83 Va. 451; Id. 504; 93 II. S. 55; 83 Va. 504, 510; Strong v. Strong, 102 K Y.; Harr, Ch'y Rep. 102; Walk. Ch'y Rep. 373; Id. 186; 31 Ind. 14; 14 Ind. 49; 89 Ind. 38; 36 Ill. 396; 75 Pa, St. 173; 77 Pa. St, 228; Sto. Eq. PL § 251; 52 Ala, 282; 64 Am. Dec. 661; 1 Par. Con. 393; 59 Mo. 125; 2 Wis. 261; 1 Conn. 354; 6 Mass. 511; 23 Peck 167; 8 B. Mod. 11; 10 K H. 497; 58 Ind. 143; 64 Mo. 43; 78 X. C. 603; 9 W. Va. 369; 31 Gratt. 379; 64 Am. Dec. 661; 40 Am. Dec. 435; 58 Pa, St. 136; 5 Wait Act. & Den 483, 485, 521, 522, 524; 4 W. Va. 397; 5 W. Va. 301; 58 Am. Dec. 448; 50 Am. Dec. 675; 3 Wait Act, & Def. 470, 471, 472, 473, 483; 79 Va. 468; 43 K J. Eq. 323; 17 W. Va. 717; 26 Am. Dec. 370; 2 Kent Comm. 453 s. p.; 6 Am. Dec. 241; 24 Am, Dec, 274; 17 Wall. 67; 7 McCord Ch'y 36; 2 I red. 365; Jarm. Wills 52; 84 Am. Dec. 97; Shelf. Sun. 37; 20 Gratt. 147; 15 Am. Dec. 354; 11 W. Ya. 584; 21 Gratt, 75; 22 Gratt. 894; 8 Wall. 14; 3 Pom. Eq. Jur. § 928 et seq.; 2 Loin. Eq. Jur. § 917 and notes.

P. W. Strother for appellee cited:

Unis v. Charleston, 12 Gratt,; Pant v. Miller, 17 Gratt.; 3 S. E. Rep. 20; 11 S. E. Rep. 39; 32 Gratt. 300-302; Rover Iron Co." v. Trout, 83 va.; 77 Ya. 445; Colin v. Roberts, S. W. Rep. 665; 10 S. E. Rep. 891; 20 W. va. 415; 11 S. E. Rep. 227; 10 S. E. Rep. 568; 8 S. E. Rep. 74; 2 Pom. § 1405; 3 Pom. 310; 8 S. E. Rep. 749, 751, 753; 8 S. E. Rep. 408; Ilairston &c. 81 va.; Pom. 1275, 1290; 3 Pom. 313, 747, 751; 8 S. E. Rep. 447, 449; Story Eq. 92; 31 W. Va. 736; 11 S. E. Rep. 220; Pom. Con. $ 411; 3 S. E. Rep.V, 122; 10 S. E. Rep. 240; 2 Pom. Eq. Jur. § 1405; 1 Munf. 578, 726; 2 Yes. Sen. 627; 11 S. E. Rep. 117; 2 Tuck Comm. 422, 423; 77 va. 540; 78 Ya. 65; 26 Gratt. 273; 79 va, 356; 76 va, 594; 32 Gratt. 302; 26 Gratt. 467; 77 va. 525; 2 Lorn. Eq. 892; 11 Gratt. 459; Statham v. Ferguson, 25 Gratt.; 11 Pom. Eq. Jur. 417, 422 & n., 948, 951 n.; 1 Story Eq. 239; 17 W. Ya. 472; 77 Ya. 525; 6 Eng. & Am. Ency. 80; 2 Tuck. Comm. 422, 424, 425; 8 S. E Rep. 74 n.; 4 S. E. Rep. 902; Id. 581; 3 S. E. Rep. 769, 894; 79 va. 466; 2 Pom. Eq. Jur. 430 & n.; 8 S. E. Rep. 449; 9 S. E. Rep. 930; St, Eq. 189; 80 Ya, 310; 22 W. va. 593; 17 W. va. 717; Moore v. Ulman, 80 Ya.; 17 W. va. 770; 28 W. va. 803; 3 Munf. 130; 9 S. E. Rep. 934; 6 Am. & Eng. Ency. 33; Kerr Fraud 300; 2 Pom. Eq. Jur. 417 n., 472, 497, 817, 818; 24 Gratt. 164; 13 Gratt. 362; 36 Fed. Pep. 147; 33 Fed. Rep. 314; 9 S. C. 598; Id. 277; 23 Gratt. 321;

Payne § Green for appellees cited:

1 W. & T. L. Cas. Pt. II, 952, 953; Id. 1263; 31 W. va. 736; 33 W. va. 738; 4 Wheat. 224; 14 Pet. 82, 83; 2 Rom. Eq. Juris. § 487, 895, 917; 94 U. 8. 506; 95 IT. S. 157; 79 Va, 468; 43 K J. Eq. 323; 82 Va. 383; 8 W. Va. 410; 18 W. Va. 140; 21 W. Va 469; 23 W. Va. 100; 30 W. Va. 182; 31 W. Va. 576; 83 Va, 451; 93 IT. S. 55; 83 Va, 504; 31 Ind. 14; 14 Ind. 49; 89 Ind. 38; 38 111. 396; 81 IT. 8. 332; 9 W. Va. 367; 7 Wall. 216; 16 Wall. 432; W. & T. L. Cas. 1247; 4 S. E. Rep. 902; 6 X. E. Rep. 788; 7 S. E. Rep. 189; 5 Hill 154; 18 Md. 305; 2 Blatchf. 249; 26 Am. Dec. 374-378, note on p. 376; 64 Mo. 43; 10 N. II. 497; 9 W. Va. 3(59; 3 Graft, 330; 6 Graft, 684; 31 W. Va. 736; 28 W. Va 773; 107 P. S. 262; 17 W. Va. 770; 80 Va, 310; 79 Va. 65; 1 W. & T. L. Cas. P't II, 952, 953; 2 Pom. Eq. Juris. §§ 467, 468, 471, 472m, 487; Poll. (Tout, 524, 539, 540, 563; Sto. Eq. Juris. (8th Ed.) § 239; 2 W. k T. L. Cas. P't II, 3196; 11 S. E. Rep. 406; 2 Tuck. Comm. 423; 25 Gratt, 28: 113 IT. 8. 89; 4 Otto 506; 78 Va. 146, 147; 80 Va, 22; 78 Va, 138; 4 How. 561; 80 Va. 30; Id. 805; Bisp. § 206; 79 Va. 118; Id. 150; 3 Waite Act. & Def. 439, 472, 473; 31 Gratt. 411, 412; 2 W. & T. L. Cas. P't IT, 1263; Pom. Cont, 290, 292, 293, 306, 308; 7 W. Ya. 392; Pom. Eq. Juris. § 892; 64 Am. Dec. 662; 75 Va. 460; 78 Va. 65; 32 Gratt, 300; 13 Pet. 26; 31 Gratt. 418; 1 Sto. Eq. Juris. 206, 208, n. 1.

I Shannon, Judge:

This is a chancery suit brought in the Circuit Court of Mercer county by William Whittaker and Eliza his wife, against the South West Yirginia Improvement Company and others, to set aside on the ground of fraud an option made by Eliza Hale, later Whittaker, to John Graham, Jr., giving Graham option to purchase right to minerals in a tract of four hundred acres of land lying in Mercer county and Tazewell county, Va., and a deed made by said Eliza Hale and John Graham, fir., conveying such right to Joseph I. Doran, who conveyed to said company. A decree was pronounced annulling the deed from Eliza Hale to Joseph I. Doran; and from this decree said company has appealed to this Court.

I shall consider the case first as regards the option; for, if there he no ground for annulling it, the deed made under it, so far at least as it merely executes the option, would he wholly unaffected by the fraud, if any, connected with the execution of the sub-sequent deed; or the circumstances relied upon to show fraud as connected wit!) the deed should be viewed in a different light a light more favorable to the defcndent than if there had been no valid option.

What then are the grounds on which we are asked to overthrow the option V The charge is that Dr. James O'Keefe went to the house of Eliza Hale, then a widow, to purchase the minerals in the land, stating that they were of but little value and would never he of any more value, unless there was railroad transportation for the coal, and that might be ninety years, there being no immediate prospect at that time of such road, though he was the agent of John Graham, Jr., chief engineer and projector of a railroad then under construction, which lie, O'Keefe, and those for whom he was acting knew, hut of which Eliza Hale was ignorant; and, induced by the concealments and representations of O'Keefe, she signed a paper, which she afterwards learned was such option, the same not having been read to her, agreeing to sell the mineral rights of said land at seven hundred and twenty dollars; hut that in the mean time she ascertained that the railroad, which was to be postponed for ninety years, was in process of construction, and in the fall of that year the ears were running to East river and up the same; and that she had also been told by a practical miner not to sell, as the lands were worth one hundred dollars per acre instead of one dollar and eighty cents; and that it was then worth one thousand dollars per acre. The bill alleges that said Eliza "has little or no knowledge. Raised chiefly in the mountains of West Virginia, she had not the educational advantages of more favorably situ- ated ladies." These allegations constitute the length and breadth of the cause, for which the option is attacked.

Now, as to the statement of the value of the minerals. It was matter of opinion. The evidence discloses that theretofore they had no value, and this was matter of opinion of which Mrs. Hale, from long residence there, was equally competent to judge, Next, as to the coming of the railroad, for in this matter consists the pith of the assault upon the option. The bill says that O'Keefe said the railroad might he delayed ninety years, and that there was then no immediate prospect of it, while in fact the railroad was then under contract and construction, and that lie knew it, but she did not, If the road was then under construction there or anywhere near there, it is strange that she was ignorant of it. We all know that so important a matter as the construction of a railroad, especially in our mountain sections till then utterly without railroad, is a matter from the very first step during the preliminary surveys and during construction universally talked of, there being no subject of more wide-spread interest, She herself, while averring in her bill such ignorance, does not on the stand say she was ignorant of the events and occurrences touching the important work then going on towards the construction of this railroad which was to redeem that section from the wilderness.

The evidence shows that the New River railroad was begun in 1879, and it was not very far from this land and pointed in its direction, and the survey was made; up East river, and the road let to contract in July or August, 1881, to Pocahontas, a few miles from the land. The surveying must have been going on before or as early as the 19th of April, 1881 the date of the option. How can we say that she did not know of this surveying, and of all the railroad construction and railroad enterprises then going on in that section? It is hardly to be credited in the face of these things, that she was wholly and solely influenced to sign the option by the declaration or opinion of O'Keefe that the railroad might be delayed ninety years. Anyhow, as she states it, it was in the garb of an opinion merely, as it must have appeared to her. And in...