Cupp v. Lester , 104 Va. 350 ( 1905 )

Whittle, J.,

delivered the opinion of the court.

The object of the suit out of which this controversy arose whs to subject the real estate of the appellant, Anderson Cupp, to sale to satisfy liens.

Pending the litigation, appellant, accompanied by his counsel, sought the appellee, George E. Lester, who was not a party to the suit, and procured of him a loan of $1,000, to secure which Cupp executed a deed of trust on a tract of 83% acres of land, which was represented to Lester as affording ample security for the debt. Subsequently, when the cause had reached the stage where the lands had been sold and a confirmation of the sales was being pressed, Oupp again approached Lester, and, in consideration of his agreeing to prevent the confirmation of the sales of several parcels of the land by putting in upset bids, the Mowing contract was entered into:

“That whereas, Geo. E. Lester agrees to put in an upset bid on six tracts of land sold on 4th March, to-wit, 83-% acres, 50 acres, 37 acres,. 9- acres; 100' acres, one-half interest in 50-acre tract, and pay-off the liens reported by'Com’r. Farley, that are prior to the deed of George E. Lester’s' deed of trust . . .. blow, the said Oupp, in consideration of the premises, agrees to give to Geo. E. Lester a one-half interest in the coal on the one hundred-acre Miller tract f that is to say, that in consideration of this accommodation Lester is in any event to have one-half interest in that coal, and Oupp one-half interest. In case Lester buys the lands to protect himself, and Oupp can reimburse, him for principal, interest, and costs, expended in buying said lands, then Oupp is to have the said lands back, but this last clause shall in no wise affect either interest in the coal on said lOOracre tract, in .all events.this contract is to give Geo. E. Lester one-half interest in said coal, and retains the other half as Cupp’s.”

At re-sales of appellant’s lands upon the upset bids appellee became the purchaser of the six tracts referred to at the aggregate price of $1,287.50.

The cause was heard upon a rule against appellant to show cause why a writ of possession should not be awarded requiring him to deliver to appellee the possession of the lands purchased by him, and upon the pleadings and evidence. Whereupon the trial .court passed the decree complained of, which ascertained the amount due from Cupp to Lester to be $2,046 — ■ $1,287.'50', part thereof, representing the sum paid by Lester for the lands purchased by him at the re-sale, and $758.50, the residue thereof, being the unpaid balance due upon the $1,00.0 loan secured by deed of trust. The decree also provided, that upon appellant paying to appellee said sums within 90 days from the adjournment of the court, the latter should convey to the former the lands in question .with .the exception of one-half interest in the coal on the Miller tract. Alternatively, the decree provided, that upon the failure of appellant to pay the amounts decreed against him within the time prescribed, he should be forever barred from demanding or claiming any interest in said lands.

The first assignment of error involves the action of the court in requiring the appellant to pay to Lester the balance of $758.-50, due on the loan of $1,000.

With respect to that assignment, it appears that the hank of Ohristiansburg held a first lien on the 8314-acre tract, which Lester discharged out of the $1,000 loaned to Gupp> and took an assignment of the hank’s lien.. To the extent of that lien, therefore, by substitution to the right of the bank, Lester was reimbursed at the subsequent sale of that property; but the entire proceeds of sale of the residue of Cupp’s lands were consumed in the liquidation of liens prior to Lester’s deed of trust, so that the balance due thereon was never paid. Hence there was no error in the decree requiring Cupp to pay that balance as a condition precedent to his right to redeem the lands purchased by Lester.

The remaining assignment of error deserving notice relates to the ruling of the court denying appellant the benefit of the stipulation in the contract with respect to one-half the coal on the Miller tract.

In that connection it appears that there was a vendor’s lien on the 37-acre tract of land mentioned in the agreement, amounting with interest to over $800, which was afterwards bought by the vendor for $700. That lien was not included in the report of Commissioner Farley, and was represented by appellant to have been satisfied. Appellee was thus induced by the false representation of appellant to enter into the agreement and wholly deprived of the security afforded by that property. Under the foregoing circumstances, the court was justified in denying appellant the benefit of the stipulation with regard to the one-half interest in the coal.

Upon the whole case, the decree is without error, and must be affirmed.

Affirmed.