Creigh's v. Boggs

19 W. Va. 240, 1881 W. Va. LEXIS 21

• Court: West Virginia Supreme Court
• Decided: December 17, 1881
• Status: Published

Opinion

Gbeen, Judge,

announced the opinion of the Court:

The most important and difficult question involved in this record is : Can a written contract for the sale of land be specifically enforced in a court of equity with a parol variation in the courses of the land agreed to by the parties subsequently and admitted in the answer, which variation in the courses was not made as admitted by the answer with a view of modifying the original parol understanding of the parties, which preceded the written contract, but simply to carry out this original parol agreement and understanding, -which the written contract failed to do only because of a mutual mistake of the parties, as to whether a certain mill-site would be included in the boundaries set forth in the written contract? My conclusion is that a court of equity may specifically enforce such contract, though objected to by the defendant in his answer, with such parol variation of the courses and distances. When the mistake is simply in noi correctly reducing the original agreement and understanding to writing, the decided weight of the English authorities is against the right of a court of equity to specifically enforce such a contract as modified by parol-evidence so as to correspond with the original parol-agreement and understanding. See Rich v. Jackson, 4 Bro. Rep. 514; 6 Ves. 335 n.; Woollam v. Hearn, 7 Ves. 211c; Clinan v. Cooke, 1 Sch. & Lef. 22, 28; Squire v. Campbell, 1 Myl. & Cr. 459. Sed vide Martin v. Pycroft, 2 De G. M. & G. 785. But even the English judges seem to think, that if the mistake in the written contract and the correction to be made is admitted in the answer, it might alter the case, See Attorney General v. Sitwell, 1 Y. & C. Exch. 559 ; Martin v. Pycroft, 2 De G. M. & G. 785.

The decided weight of American authorities in opposition to the English cases is, that the plaintiff may have such mistake corrected and the contract specifically enforced, though the existence of such mistake be denied in the answer. Thus in Keisselbrack v. Livingston, 4 Johns. Chy. 144, which was a bill for a specific performance of an agreement in writing with a variation to make it correspond with the real understanding of the parties, Chancellor Kent at p. 148 says: “The master of the rolls stopped short of relief in the case of Woollam v. Hearn, 7 Ves. 211, where a mistake was alleged, because, he said, there was no precedent for allowing parol proof to correct a mistake in favor of the plaintiff seeking a specific performance of an agreement. He admits however, that the proof before him made out the plaintiffs case, and that it would have been received as sufficient to refuse relief, if the defendant had sought a specific performance. I am not sufficiently instructed at present to admit the soundness of this distinction, which holds parol-evidence admissible to correct a written agreement as against but not in favor of a plaintiff seeking specific performance of a contract. Lord Hardwick does not appear to have been aware of any such distinction in two cases, to which Sir William Grant referred. Lord Thurlow rejected parol-proof in the case of Irnham v. Child, 1 Bro. Rep. 92, when offered by a plaintiff seeking performance of an agreement, and at the same time seeking to vary it by parol-proof; but he went upon general grounds applicable to such proof as coming from either party. And why should not the party aggrieved by a mistake in the agreement have relief, as well w'hen he is plaintiff, as when he is defendant? It cannot make any difference in the reasonableness and justice of the remedy, whether the mistake was to the prejudice of one party or the other. If the court has a competent jurisdiction to correct such mistakes (and that is a point Avell understood and settled), the agreement, when corrected and made to speak the real sense of the parties, ought to be enforced, as well as any agreement perfect in the first instance. It ought to have the same efficiency and be entitled to the same protection, when made accurate under the decree of the court, as when made accurate by the act of • the parties. I shall accordingly direct a specific performance of the agreement as corrected bjr the proof, and I shall award costs, as was done by Lord Hardwick in Bingham v. Bingham, 1 Ves. 126, in a decree correcting a mistake.” As sustaining the views of Chancellor Kent see Tilton v. Tilton, 9 N. H. 385; Gillespie v. Brown, 2 Johns. Chy. 585; Gooding v. McAlister, 9 How. Prac. R.123. See also Cowtt v. Craig, 2 H. & M. 618; Rogers v. Atkinson, 1 Kelly 12; Rhode Island v Massachusetts, 15 Pet. 233; Cook v. Preston, 2 Root. 78; Sanford v. Washburn, Id. 499 ; Elmore v. Austin, Id. 415; Willis v. Henderson, 4 Scam. 13; Coles v. Bowne, 10 Paige 535; Hendrickson v. Ivins, 1 Saxton (N. J.) 562, and Smith v. Allen, Id. 43.

In my judgment the reasoning of Chancellor Kent as above stated is sound, and the American cases on this subject are to be preferred to the English. While none of the American cases cited involve directly the questions presented in this case, yet the reason, which underlies them, in my judgment justifies the conclusion, which I have reached. The record shows, that this case is included in this conclusion. The defendant Francis C. Boggs, administrator with the will annexed of Henry Jones, in his answer, filed when this case was before this court formerly, says : “This respondent says, that the object of the said Jones in the purchase of said land was to secure the mill-site, which was situated thereon, and which was assented to by said Creigh, in order that the interest of Jones’s mill-property near by should not be at any subsequent period damaged by opposition. And some short while after the date of the contract Creigh and Jones together with the surveyor went upon the land to survey and make the division line,” When they discovered, that the lines called for in the contract would not include the mill-site, “ and that the object and design of both of the contracting parties would not be attained, the said Jones and Creigh agreed to survey the land according to their former intentions and directed the surveyor to change the dividing line so as to include the mill-site, which the surveyor did in the presence of said Creigh and Jones, which line was run and marked on trees and did include the mill-site; and the' said Creigh directed the said surveyor to make a plat of said land and mail it to him.”

It appears, that this plat was given to Henry Jones and on his death it came into the hands of the defendant, F. C. Boggs, his administrator, and he produced it, as appears from the following decree of November 15, 1871: “And the defendant, Boggs, having filed a paper purporting to be a survey of the lands sold by David S. Creigh to Henry Jones, deceased, made by them in their lifetime and claimed bv them as such, which paper is marked X, and the same being adopted here in court by the plaintiff, it is therefore adjudged and decreed, that the said paper be adopted as the true boundary and quantity of land sold as aforesaid.” In the amended bill this boundary of the land as stated in this paper X was claimed as the land agreed to be sold, and the specific performance of the agreement was sought stating how it was, that this plat came to be made and the courses to be run ; and these allegations are not denied in the answer of Boggs, administrator, who resisted the enforcement of this contract on other grounds,,

As the object of the statute of frauds was to prevent the mischief arising from the resort to parol-evidence to prove the existence and terms of an alleged contract in the cases specified in the statute, it would seem, that it should be held inapplicable in this case, as the contract and all its terms were as clearly established in this case, as if it had been fully set out in the original written contract, and according to the spirit of the American cases, which I have cited, it ought to be specifically executed by a court of equity. But it is said, that it ought not to be executed, because it was not mutually binding on each of the parties, it not being signed by all the executors of Thomas Creigh but by one only of them and not by him as executor. As he was acting as the executor of Thomas Creigh, and this was well known to Henry Jones the purchaser, and as he was the acting executor, and his co-executors approved of his action, he might, it seems to me, be well regarded as their agent, and his individual signature might be held as binding all the executors of Thomas Creigh. See Yesby v. Grissby, 9 Leigh 387. But be this as it may, it is unimportant, for such a contract may be specifically enforced against the parties who signed it though not mutually binding on the parties, for the statute requiring, that the agreement of the memorandum or note thereof to be signed by the party to be charged therewith or his agent and not by both the parties to the contract, it is held both in courts of law and equity, that a signature by the party, against whom the contract is sought to be enforced, is sufficient. Fry on Specific Perf. § 346, p. 233 ; Egerton v. Mathews, 6 East 307; Allen v. Bennett, 3 Taunt 169; Laythoarp v. Bryant, 2 Bing. N. C. 735; Buckhouse v. Crosby, 2 Eq. & C. Abr. 32 pl. 44.

The circuit court ought therefore to have overruled the demurrer to the plaintiff’s amended bill; and this it in effect did, when it rendered decrees for the plaintiff. The formal overruling of the demurrer was unimportant, and the failure of the court to overrule it did not prejudice the defendants. See Cooke v. Thornton, 6 Rand. 10.

The defendant Boggs, administrator of Jones, in his answer insists, that as David S. Creigh afterwards sold a part of the land, which he had sold to Jones,- and as this last sale included the mill-site on Mumble-the-peg creek, the court-ought not to specifically enforce the contract. The rule governing courts of equity in such cases is, that if the purchaser can get substantially what he contracted for, the agreement will generally be enforced at the suit of the vendor. See Evans, &c., v. Kingsberry, &c., 2 Rand. 131; Jackson v. Ligon, 3 Leigh 161; McKee v. Bailey, 11 Gratt. 340. In this case the defendant Boggs’s answer shows, that his intestate, Jones, desired this mill-site to prevent a third party from erecting a mill there, which would compete with his mill, which was in the neighborhood. Now the contract originally made between Creigh and Jones on its face shows, that at this mill-site Mumble-the-peg creek was the boundary between the lands Creigh sold and those he retained ; and thus it appears, that the object Jones had in view was, he conceived, effected by his ownership of one side of this creek at this mill-site. But when the boundaries were subsequently rearranged, as shown in paper X, the boundary commencing at a point above this mill-site on Mumble-the-peg creek instead of following the creek, as it did in the first contract, by a single course ren to the lowest point on the creek, to which this parcel of land sold extended. The apparent object of this was to simplify the boundary; the land lying between this new line and the creek is proven to be of very little value then or now, worth about $1.50 per acre. Creigh forgetting, I presume, this change in the lines and supposing, he still owned to the creek, sold it to another party to the creek ; and this land af-terwards was purchased by the Pecks.

We think under these circumstances, that it is obvious, that Henry Jones attached no importance to the ownership of both sides of the creek at this mill-site, as he did not stipulate for it in his original written contract and probably got it in the amended boundary more by accident in the taking of this straight line instead of the meanders of the creek as the boundary; and that the loss of the ownership of one side of the creek at this mill-site is under these circumstances not to be regarded as a substantial loss. In fact, if it had been so regarded, it could have been easily avoided by Jones or his representative, as his title was older and superior to that of the subsequent purchaser from Creigh, and it is, from the way it is stated by the commissioner, fairly to be inferred, that Creigh only entered into a contract with the party, who' bought subsequently, and did not make him a deed. This supposed loss was, I think, evidently regarded both by Jones and his heirs as a loss of no consequence, for had it been, they could easily have prevented its arising. It furnishes no ground therefore, why this contract ought not to be specifically enforced ; and the same may be said of the two small parcels occupied by Conner and Rader. Indeed it is not even claimed, that they are substantial losses. They too were clearly losses, which have arisen from the fault of the defendant, Jones, and his representative; for neither Conner nor Rader has any good title to the small parcels. And if they can hold them it is only by adversary possession arising since the sale of this land to Jones by Creigh.

The court therefore might well have declined to make any deduction on account of these adversary claims of Rader and Conner, but with the assent of the plaintiff a deduction of the value of these two parcels of land thus held adversely was made, and with like assent a deduction of $5.00 per acre with interest was made on account of said Peck’s land, though it is shown to be worth only $1.50 per acre. The difference in the decree resulting from this deduction of the value of this Peck land at its true value, $1.50, and its assumed value, $5.00, per acre would be some $500.00. And it would greatly exceed an error claimed to have been made against the defendants, the administrator and heirs of Henry, Jones, in charging interest for a short but unascertained time, while the Federal forces were in possession of Nicholas county, where Jones lived, and the Confederate government was in possession of Greenbrier county, where Creigh lived.

The only other error in the decrees claimed was in the appointment of James Withrow of Greenbrier as a special commissioner to settle the account for taxes on this land paid by the plaintiffs. There is nothing in this supposed error; for it does not appear, that any objection was ever made in the circuit court to the appointment, and Greenbrier county adjoined Nicholas, where the controversy afose, and was apparently a much more convenient place for such settlement than Kanawha county, whither the case was removed for trial by consent, simply because the judge of Nicholas circuit court could not properly sit in the case. Nor was there any objection to having this settlement made and charging the taxes, which had been paid, to the heirs of Henry Jones and not to his administrator, and if they should not be paid in a reasonable time, ordering a sale of the land to pay them. It was obviously not the duty of the administrator to pay these taxes accruing after the death of Jones but the duty of his heirs, to whom the land belonged; and if the plaintiff was compelled to pay them to prevent the sale of the land for delinquent taxes, in which land he had an interest as a security for the pnrchase-money, it is obvious, that the money so paid should be refunded, and if not, the land should be sold to pay the amount.

It is also assigned as error, that the amount reported by James Withrow, commissioner, as the amount of taxes paid by the plaintiff on their laud is too great. It was $229.42; and his report states, that it was for all the taxes paid by the administrator of Creigh the plaintiff on lands on Mumble-the-peg creek. He does not know, but that these lands on this creek may include other land on this creek, which may have been taxed to Thomas Creigh’s heirs, as he had not access to the papers of this suit. But we have this access and find, that there was not, so far as it appears in this suit, any other lands to be taxed to Thomas Creigh’s heirs on this creek. There is no evidence, that Thomas Creigh ever owned any land on this creek except the Witherel tract of seven hundred acres. Of this four hundred and seventy acres, the land in controversy in this cause, were sold to H. Jones. Another tract laid down on the map made by the surveyor under an order in this'; cause "as Peck’s purchase was afterwards sold by David S. Creigh. It contains, if we may judge by its appearance on the map, some one hundred acres and lies on Mumble-the-peg creek. The balance of this Witherel survey, from one hundred to two hundred acres, does not lie, as this map shows, on Mumble-the-peg creek. We may therefore safely conclude, that the taxes paid by the plaintiff as administrator of Thomas Creigh on the lands on this creek were all paid on this land, which had been sold to Henry Jones; and the commissioner’s report is therefore correct. It was unex-cepted to in the court below, and so far as the record shows, it was properly confirmed by that court.

It is claimed, that it does not sufficiently appear, that Thomas Creigh had a good title to this four hundred and seventy acres of land sold to Henry Jones. The amended bill alleges, that he had bought it in November, 1824, of Pere B. Witherel, who conveyed it to him by deed duly recorded. This is neither denied nor questioned in the answer. The rule in such cases is, that an enquiry as to title will be directed upon the application of the vendee, or when the proof in the answer renders it doubtful as to whether the title be good. See Middleton v. Selby, supra. In this case no application for such a reference was made, and there is no evidence tending to throw the least doubt on the title of Thomas Creigh to this land, when he sold it to Henry Jones. On the contrary the evidence and commissioner’s report show, that there is now no claimant for any part of this land adverse to Thomas Creigh’s title except claimants to very small portions, which adverse titles have arisen since the date of said sale. There is therefore no reason to question the validity of the title of Thomas Creigh to this land ; and the court did not err in not ordering a specific reference with a view to enquiring as to its validity before decreeing the specific execution of the contract. It was neither necessary nor proper to have the deed for this land to the heirs of Henry Jones delivered, till they paid the taxes, which had been paid by the plaintiff; and it was proper for the circuit court to permit, as it did, an execution to issue against Francis C. Boggs and his sureties as administrator of H. Jones for the $2,102.61 decreed as the balance of the purchase-money due with interest from January 17, 1876, and costs, when the deed for the land sold, other than that claimed by others and not to be paid for, was filed with the papers of the cause executed by the plaintiff and ready to be delivered by the court to the heirs of Henry Jones, when by the payment of these taxes they should entitle themselves to it.

It is true, the record does not expressly show, that this deed executed by the plaintiff properly has been left in the papers of this cause; but, as by the face of the decree he had no right to issue any execution on the decree in his favor, till this was done, and as he issued such execution on February 8, 1878, and no motion was made to quash it by the defendants, the necessary inference is, that this required deed had before that been filed in the papers of this cause; and if it had not been, the defendants in this execution could at any time have had it quashed as improperly issued by the clerk. Their failure to do so makes it certain, that this deed has been placed in the papers of this cause.

This execution was levied, a forthcoming-bond was given and forfeited, and execution was awarded on the forfeited forthcoming-bond on November 11, 1878. The only objection to this proceeding presented is an alleged variance between the execution and its recital in the forthcoming-bond, and the only supposed variance here is in naming the defendants in the execution. They are described as Francis C. Boggs and Henry J. Boggs and Stephen A. Jennie, his ^securities as administrator of Henry Jones, deceased. In the forthcoming-bond they are described as Francis C. Boggs, Henry J. Boggs and Stephen A. Jennie. These two descriptions are legally identical; for the added words in the execution are simply surplusage in no manner changing the legal effect of an execution. It was therefore unnecessary to repeat them in the forthcoming-bond.

The decrees of the circuit court j of Kanawha county of November 12, 1877, and'of May 27, 1878, must be affirmed with costs and the judgment awarding execution on the forthcoming-bond of November 11, 1878, must also be affirmed with damages according to law; and this cause must be remanded to the circuit court of Kanawha to be further proceed with according to the rules governing courts of equity.

Judges HayMOND AND JohNsoN Concurred.

Decrees Affirmed. Cause Remanded.