Piedmont Coal & Iron Co. v. Green , 3 W. Va. 54 ( 1868 )

Brown, President.

The important question arising on the record for the consideration of this court, in this case, is whether'the decree of the Maryland court concludes all inquiry into tbe validity of tbe title to tbe Virginia lands in tbe Virginia courts, wherein the vendor seeks specific performance and a sale of the Virginia lands to pay the balance of the price not paid by prior payments and by tbe sale of the Maryr land lands under the decree of the Maryland court. I should be very slow to reconsider a question which had been considered and adjudicated by a court of competent jurisdiction of another State of the Union. But the difficulty-in the present case is not the competency of the Maryland court, but what it did decide and what it did not.

John Brant, by written indenture, sold to General Buff Green several tracts or parcels of land, part of them situated in Maryland and the rest in Virginia, for a large sum of money, payable as therein specified. Brant filed his bill in the county court of Alleghany county, Maryland, to enforce ■his vendor’s lien and for a sale of the lands to satisfy the price remaining unpaid. The Maryland court decreed that Green pay the purchase money, less the payments made in part, in a given time, and upon default that the Maryland lands be sold and the. proceeds applied pro tanto to the debt, which was done. The said court, however, first seeing that the title to the Maryland land was perfected, before sale, by a deed with general warranty from Brant to Green, with the relinquishment of tbe dower right of Brant’s wife to tbe same. This is substantially what that court did. The bill in the Maryland court wTas general, and prayed for a sale of the lands without limiting the prayer to the Maryland lands. And that court might undoubtedly have gone further than it did and have decreed a sale of the Virginia lands also, and applied the proceeds to tbe purchase money, and as incidental thereto it might have compelled the parties then before it to unite in conveying the Virginia lands to its com- . missioner, and then had them sold and conveyed by him under its order; ■ and it might very properly upon having a proper case made requiring the investigation of the validity of tbe vendor’s title to the Virginia lands, have instituted an inquiry in that behalf, and tested the title to the same by the laws of Virginia; and however inconvenient, and per-baps unsatisfactory, such an investigation might have proved in a foreign court, and however appropriate and preferable it' might be supposed to have had the question of title to the Virginia lands investigated and determined under the laws of Virginia by a Virginia court; yet would the decree of the Maryland court be conclusive upon the parties in such case of everything so considered and, in fact, determined; unless, perhaps, the Virginia court should plainly see that the Maryland court had clearly mistaken the law of Virginia applicable to the case. Indeed, the Maryland court might, in such case, have also compelled Brant to execute a like deed to Green for the Virginia lands, with general warranty and with the relinquishment of his wife’s dower right therein, and deliver the same for record in Virginia at or before such sale; but the Maryland court did not do so. It neither considered nor decided the question of title to the Virginia lands, nor did it decree"a sale even without such inquiry and determination. Having exhausted the Maryland land it ceased to exert its powers in the premises. And the reason is manifest upon the whole record of the case. It was not in the contemplation of the parties, their counsel, nor the court to investigate the defects of title aud dispose of the Virginia lands in the Maryland suit. And yery shortly after the Maryland decree, and before the sale of the Maryland lands, the vendor Brant filed his bill in the circuit court of Hampshire couuty, where the Virginia lands were situated, to foreclose his vendor’s lien and for a sale of those lands to pay the purchase money. The pendency of this Virginia suit and its object were known and recognized by all in the Maryland case as appears by the record in that oase and the agreements of the parties filed therein referring to that suit.

It is claimed that the Virginia suit was but a foreign attachment, under the statute, in substance and fact, though not so in form, to subject the Virginia lands not to the vendor’s lien but to satisfy the Maryland decree, but the facts do not sustain the theory, however plausible. That was a new view taken many years after by the administrator of Brant, and the eo'helusiveness of the Maryland decree urged as an estoppel to all inquiry into the question of title to the Virginia lands then sought to be sold. The object of the Maryland suit was to enforce the vendor’s lien on the Maryland land, and clearly so understood and intended by all the parties, and the Maryland court. The vendee questioned the title to the land, and averred the inability of the- vendor to make a good title, and that was perfected before sale, by the deed of Brant, the vendor, to the vendee, with the relinquishment of the dower right of the vendor’s wife, according to the laws of Maryland. It was not necessary to that object, that is to a sale of the Maryland lands, to investigate and determine in the Maryland court the title to the Virginia lands, as it was not in contemplation to sell the latter in that suit but that was left for the Virginia court in the Virginia suit, then pending for that purpose, and so known to all the parties and to the Maryland court, else why did" the Maryland court stop short of its duty with granting but half relief?

I think, therefore, upon an inspection of the whole record, that the Maryland decree neither determined nor concluded anything respecting the title to the Virginia lands, but that thatquestion was,andis still,open to investigation,according to the contract of sale sought to be enforced. And it. seems • the learned judge who decided the ease in the Hampshire court was not free from difficulty in maintaining the Maryland decree to be conclusive against such inquiry, when be disregarded the declaration which he had made of its eon-clusiveness so far as to permit the inquiry into the title of a moiety of one of the tracts of land in question. But if the said decree be conclusive as to any of said tracts why not as to all of them, and if not conclusive as to the whole why so to any part ? I think, therefore, that the decrees of September 20th, 1854, and April' 21st, 1859, are erroneous in holding the Maryland decree conclusive and excluding the inquiry into the validity of the title to said lands, and also in dissolving the injunctions before such inquiry should be .had. Those decrees, therefore, should be reversed -so far as they conflict with these views, and the cause remanded to the circuit court of Hampshire to be there further proceeded with in conformity to the views above indicated. But'in any inquiry which may there be had respecting the alleged defects of title to the said lands, the question should not be exclusively as to what defects existed in Brant’s title at -the timo of the sale, but rather what defects now exist therein, if any, which would defeat the possession or enjoyment of the land by the vendee; for however defective the title may have been originally if the vendee has had and held the possession thereof under it, till the defect has been cured by lapse of time or the statute of • limitations, he should not be- allowed to set up such pretended defect. And should it be found that the questions of title cannot be determined without resort to actions at law the parties should be required to do it to enable the court of equity to 'make a complete and final disposition of the ease.

Nor does the record show whether the lands in question have been held in the possession ot the vendor and vendee or either of them, or whether by the claimants of the alleged older and adverse title, so that this court cannot determine tho question of title in the premises,

Judge Maxwell concurred.

Deoree reversed.