Renick v. Renick , 5 W. Va. 285 ( 1872 )

Berkshire, P.

This case was heard on the bill, exhibits and demurrer to the bill, which was sustained by the circuit court, and the bill dismissed with costs.' The only question, therefore, is whether the allegations of the bill, taken, as they must be, to'be true, show the appellant entitled to the relief prayed for, or any relief, in the premises. The bill alleges that the appellant purchased, in 1861, of his father, Benjamin F. Renick, one of the appellees, sundry valuable tracts of land in Greenbrier county, for the sum of thirty-eight thousand dollars, to be paid in annual payments of two thousand .dollars, for which he gave his obligations. That his father and his wife (who was the mother of the appellant), soon after the purchase conveyed the land so purchased, by deed with covenants of general warranty, to the appellant,. who has been in possession of the land since his purchase. That three of the obligations executed by him for the purchase money, had been assigned by his father, and judgments obtained by the assignees against the appellant for the amount thbrdof. That when he received the conveyance for the land, both he and his vendor believed that by reason of said con-ve3rance he had secured a good and perfect title for the whole of the land so conveyed; but that he had since been advised that on account of the invalidity of the acknowledgment of said deed, and the insufficiency of the certificate of such acknowledgment by the wife, the deed was null and void as to her. That a certain tract, containing four hundred and thirty acres, included in such sale and conveyance, of great value, in fact belonged to the wife, she having derived it by descent from her father, and that consequently the appellant had failed to obtain any title thereto except the life estate of his father; and that the wife had departed this life, leaving many children and heirs-at-law, in whom the legal title to said tract had vested. A nd it is also alleged that the appellant had paid about twenty-four thousand dollars of the purchase money, and that the tract for which he received no title was worth twelve or thirteen thousand dollars, which would leave but a small amount of the purchase money applicable to said judgments. And the bill prays for a recision of the contract or ah abatement of the purchase money, and also for general relief.

It was maintained, in the argument for the appellees, that, the appellant, upon the allegations'of his bill, is entitled to no relief. It is evident that both the vendor and vendee, in this instance, supposed at the time of the sale and convey-, anee, that the latter would acquire a perfect legal title by the. deed, and were mistaken only as to the legal effect of it. And it is clear that the vendor had it in his power, during the, life-time of his wife — as to whom only the deed was inoperative — to have remedied the defect in the title to the particular tract in controversy. This, therefore, does not belong to the class of cases where, by reason of a patent defect in the title to the estate purchased, and the consequent knowledge of the vendee, he, on account of such knowledge and acquiescence, would be entitled to no relief until eviction. But the strongest ground urged against relief here, is that the vendee did not contract for a “good title,” but accepted a deed with covenants of general warranty only, while the insolvency of the vendor is not alleged.

The reluctance of courts of equity to interfere and grant relief in such cases must be conceded; -but the facts admitted in this case do not appear to me to be entirely sufficient to preclude the appellant from relief in the premises. It is true, there would seem to be no danger of the immediate eviction of the vendee, and the insolvency of the vendor is not shown ;■ but the defect of the title is clear and admitted. It is also clear that the appellant is not in a condition to acquire title, as was claimed, by the lapse of time. His possession is not adversary, and cannot be until the death of his vendor. He is entitled to the life estate of the latter in the tract in controversy, and also to one share in fee as heir of his mother. The statute of limitations, therefore,.cannot run against the heirs of the vendor until after his death, and consequently the prospect of acquiring title by possession and the lapse o,f time must of necessity, be quite remote and uncertain. In the case of Clark vs. Hardgrave and others, 7 Grat., 399, which in its main facts is like the case under review’, relief wa3 granted the vendee by abating from the purchase money the relative value of the part of the lands purchased, for which the vendor had not title. The vendee, in that case, was in possession of the land purchased, under a deed with covenants of general warranty, without oilier covenants, and alleged in his bill the defect in the title, as to a part of the land, and that the vendor was “probably in doubtful circumstances.” The bill was dismissed by the circuit court, on demurrer, but the court of appeals reversed the decree and held that the vendee was entitled to relief (although there was no threatened or impending suit or eviction), and was not bound in such a case of clear defect of title, to risk the hazard of his vendor's solvency. So, under the peculiar circumstances of this case, I think it would be unreasonable to restrict the vendee to his covenant of general warrant}', and compel him, with the admitted defect and failure of title, to discharge the whole of his purchase monejr and to risk the hazard of the solvency of his vendor’s estate after his decease.

It was also insisted by the appellees, that the appellant should not be permitted to enjoin the collection of the purchase money, as against them, inasmuch as a large portion claimed to have been paid by him was not, in fact, due when the judgments were obtained against him; and that consequently these payments must have been made to their prejudice and in fraud of their rights. The allegation of the bill on this point is in general terms, that the vendor had paid twenty-four thousand dollars of the purchase money. But whether- any part of it was paid after notice of the assignment of his obligations, does not appear, and it cannot, I think, be assumed here that any portion of this amount was in fact paid subsequent to such notice. An enquiry into these alleged payments, however, may be properly had when the case goes back to the circuit court.

I think the decree should be reversed, with costs, and the cause remanded to the circuit court for further proceedings.

The other members of the court concurred.

Decree reversed.